California Democrats Wish to Police College Bedrooms

by Dr. Gerard Emershaw

Democrats often criticize Republicans for attempting to put government in American bedrooms. With the preoccupation that social conservatives on the right have with homosexuality, contraception, and marriage, Democrats often have a point. However, big government Progressive Democrats are no less willing to police the bedroom when it fits their agenda. Democrat Party lawmakers in California are advancing S.B. 967, a bill which requires California college students to provide “affirmative consent” before engaging in sexual activity. S.B. 967 has passed the California Senate by a vote of 27–9 and is now in the Assembly awaiting a vote. The bill is a reaction to a report that listed 55 schools which are under investigation by the United States Department of Education for allegedly mishandling sexual assault and harassment complaints by students. Four California schools were on this list.

S.B. 967 would require any post-secondary educational institute receiving states funds to adopt policies concerning “sexual assault, domestic violence, dating violence, and stalking” that include “an affirmative consent standard in the determination of whether consent was given by a complainant.” The key section of the bill concerning this “affirmative consent standard” reads as follows:

An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Another key element is that on a California college campus, the standard for establishing a sexual assault complaint is reduced by the bill to a preponderance of the evidence standard.

The first issue concerns what precisely constitutes “affirmative consent.” This issue involves the metaphysical question of what it is, the epistemological question of how the sexual actors know, and the practical question of how evidence is established. Alas, these questions will always be problematic for criminal charges of sexual assault. However, they become even more problematic here where the standard is merely that of preponderance of the evidence. The party who is a more convincing speaker, has a better advocate, or is simply more charismatic could win the day. When the education and reputation of college students is at stake, this makes it seem dubious whether due process is actually being satisfied.

If this bill becomes law, it could lead to the necessity of schools adopting official policies that are similar to Antioch College’s much lampooned 1991 policy. The basics of the failed Antioch College policy can be summarized as follows:

·         Consent is required each and every time there is sexual activity.

·         All parties must have a clear and accurate understanding of the sexual activity.

·         The person(s) who initiate(s) the sexual activity is responsible for asking for consent.

·         The person(s) who are asked are responsible for verbally responding.

·         Each new level of sexual activity requires consent.

·         Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.

·         Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).

Sex is a private and intimate activity. It is not facetious to believe that S.B. 967 could lead to ridiculous contracts that must be signed by California college students who wish to engage in sexual activity. Why should the government be so involved in this sphere in the first place? Should the government be doing something that so demoralizes and degrades that which is so private and potentially so emotional? Is such a policy likely to prevent sexual assaults or is it more likely to create more false accusations which are difficult to defend against?

In the context of a college, a charge of sexual assault or the like is far more akin to a criminal charge than a civil matter. Despite the fact that criminal sanctions are not in play, a college is like a microcosm of society. And being labeled with such a charge is like being branded with a scarlet letter. Laws against sexual assault—whether criminal or institutional—must balance defending potential victims with defending the rights of the accused. It is part of the very social and legal fabric of the United States that it has chosen to err on the side of the rights of the accused. This in no way diminishes the importance of defending individuals against sexual assault, harassment, stalking, etc. It is precisely because these matters are so important that safeguards must be in place to defend the rights of the accused. American society is rightly more concerned with assuring the rights of the accused are completely safeguarded in the case of serious offenses such as murder, treason, rape, terrorism, etc. than in the case of minor offenses like jaywalking, shoplifting, or vandalism.

The key is to ensure that colleges respect those who file complaints for sexual assault, domestic violence, dating violence, and stalking. When such complaints are made, the school in question should treat the person making the complaint with dignity and fully investigate the complaint in a professional manner. It may very well be that colleges should simply steward victims through the process of  making criminal complaints in such matters and avoid becoming involved. Colleges may be well-advised to stick to handling cheating, plagiarism, and other academic dishonesty matters and leave such serious criminal matters to law enforcement and the courts.

This does not require and should not involve the state moving into the bedrooms of college students. When the state begins to so collectivize people that it turns their most intimate expressions of humanity and selfhood into legalistic algorithms, then it is in the process of dehumanizing individuals and turning them into mere drones. If blowhard progressives and socially conservative moralists ever decide to compromise and develop bipartisan laws which satisfy both political correctness and the Christian fundamentalism, one day the government may literally have Orwellian telescreens in everyone’s bedroom, and government creeps may be voyeuristically watching us all.