Saturday, August 30, 2014

“Yes Means Yes” in California (Quick Summary of Thoughts)

Text of Bill:



SB 967, as amended, De León. Student safety: sexual assault.

Existing law requires the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt and implement written procedures or protocols to ensure that students, faculty, and staff who are victims of sexual assault on the grounds or facilities of their institutions receive treatment and information, including a description of on-campus and off-campus resources.

This bill would require the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant. The bill would require these governing boards to adopt certain sexual assault policies and protocols, as specified, and would require the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to students. The bill would also require the governing boards to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.

Likely Negatives:

1) As noted in the Digest (summary) of the law, the state mandates that localities and schools do something, but provides no funds for carrying out the mandate, instead creating penalties for failures to do so. This is known as an “unfunded mandate,” and these sorts of things occur at all levels of government. It is often the case, with matters such as this, that the penalties are so severe that compliance is almost certain.

Staffing, monetary resources, and time must come from somewhere to implement these things, and in this instance, all of that will likely result in higher tuition fees. But, the “stick,” namely withdrawal of state funds for financial assistance, is what pays some of those tuitions. One way or another, whether the higher tuition is paid by the student, his/her parents, or by those same people, as well as non-students, in higher taxes… there is no free lunch.

2) This is mostly “feel good” legislation. Much of what it calls for is already in place in terms of discouragement of rape, and colleges and universities all over the country are already experimenting with new techniques for reporting and resolution of rape claims:

This simply forces a bit more standardization (and of course bureaucracy). As is frequently the case, there are rape victims who are being told that what caused their rape has now been ”fixed,” but this is often, in hindsight, not seen to be true. At the federal level, many claim that letting individual states conduct such experiments is beneficial to see which techniques work and which don’t. However, a one-size-fits-all solution may actually stifle innovation and simply allow legislatures to claim “we fixed it” during the next election cycle.

3) In spite of the law's intent, there will be continued confusion regarding what constitutes consent:

“While the bill doesn't spell out what ‘affirmative, conscious, and voluntary agreement’ looks like in practice, it’s very clear what doesn't count as consent: lack of protest or resistance, silence, unconsciousness or being asleep or too intoxicated to understand what’s going on.” [1]

On the other hand:

“Sexual assault prevention advocates welcomed the bill, which challenges the idea that victims have to resist an assault in order to have a valid complaint. ‘The survivors [of sexual assault] are going to be positively affected because they are going to be going into a system that no longer asks them why they didn’t do something,’ Denice Labertew, the director of advocacy services at the California Coalition Against Sexual Assault, told Inside Higher Ed in June.” [1]

Will consenting parties to each sex act feel compelled to make a video recording of every event “just in case”? If they do that, then what if one person changes their mind later and decides to claim that they were coerced into recording the video? Would it be better to have a witness around to supervise the sex act in order to ensure that it was, as required, consensual? How wide a door would this sort of thing open to scenarios in which “guilty until proven innocent” actually does occur?

The possibility of such laws existing, only a few years ago, was the subject of comedy sketches, with the male asking for permission to fondle the female’s buttocks, followed by another request to fondle her breasts, and so on (so much for spontaneity). Older comedy material might have had the female saying “don’t” and “stop” to put the male off, but in the end saying “don’t stop” to encourage him on. How would the law interpret such mixed signals even if the entire act were to be recorded?

4) In real life situations there will still be a preponderance of cases where it is his word against hers (and all permutations of genders). With society only recently broken free (mostly) from legal regimes based on religious doctrine, one can only conclude that we are now progressing toward a new age of secular puritanism. Maybe the next step is a return to separate dorms, 10-o'clock curfews, and unannounced bed-checks, mandated not by some religious school, but by the state itself. Perhaps state run boys-only and girls-only schools with no opposite sex visitation policies will be next.

Potential Positives:

1) In addition to being a subject of campaign materials for liberals who will claim more concern for women (while many conservatives will dare say nothing but “me too”), this is a “mom and apple pie law.” It is difficult to be against it on grounds other than cost and lack of enforceability, which are, realistically, fairly substantial issues with the current proposal.

2) Protests over it will in fact raise awareness and result in changes in behavior even if it has no significant impact on actual rape statistics. Just as gun laws restricting the number of bullets in a gun’s magazine have had no noticeable effect on crime rates involving guns, people with no intent at all to commit a rape will take extra precautions or just avoid sex involving a partner altogether. However, the behavior of those already inclined to commit rape will likely go unchanged.

3) While I’ve described this awareness aspect negatively, there will probably be a marginal (if hard to measure) impact from it. Possibly as younger children, not yet past puberty, observe the caution taken by their older friends and siblings, a subtle psychological effect will take hold. This might extend beyond college students as well, to those around them, or to those who interact/engage with them (since not all sexual contact by college students occurs exclusively with other college students).

Some Fair Conclusions:

1) Will likely be mostly ineffective as it is intended.

2) Potentially not cost efficient.

3) Heavy-handed, too “strict”; seems as though it’d be more likely to result in abstinence than anything else, which doesn’t really solve the “problems” that it seeks to address (although that’d be a bonus for some conservative and religious or “traditionalistic” collectives).

4) Unlikely to solve the issue of people being “confused” over what constitutes “consent.”

5) Might raise simple awareness of some of the issues that it seeks to address.

6) Could help, in a supplementary sense, to foster some sort of positive long-term psychological (or cultural) shift. Although, even if it did, it might be difficult to quantify exactly how much of the shift came from this law, and the shift, just from this, probably wouldn’t be all that substantial.

Some Possible Alternative Solutions (related to consent, et cetera):

1) Have campuses offer free, optional sessions that cover consent, et cetera, with sex-neutral language. People could sign up to attend, and the meetings could be held fairly regularly (depending on how many people sign up and then actually show up).

2) Require students to take a sex education class that covers consent and safety as part of the school’s general prerequisite courses (not ex post facto); sex-neutral application.

3) Hold 2-3 seminars on consent, sexual assault/rape and personal safety per semester (with sex-neutral language and application). These could be larger than mere “sessions,” and efforts could be made to try to encourage as many students as possible to come. Even non-students could attend.

4) Have campuses produce videos for their websites, et cetera, that cover consent and safety, with sex-neutral application and language.

That’s about all that I’ve got to say on this for the moment; just a quick analysis.

If you’ve got thoughts on this issue, feel free to leave them in the comments below.

Thank you all for reading.

Author: Krista Milburn [@Femitheist]

In-Text References (Last Accessed on August 30, 2014):

[1] By Gail Sullivan - August 29, 2014 - Washington Post

Other References (Last Accessed on August 30, 2014):