Who’s Afraid to Look Soft on Campus Rape?

In its wisdom (such as it is), the California Legislature passed a measure that would change the standard of sexual consent on the state’s college campuses. Gov. Jerry Brown should veto this bill. If the University of California and other institutions that receive state-funded student aid want to demonstrate they have “no tolerance for any form of sexual violence” when students report rape as state Sen. Kevin de Leon has argued, then they should call the cops, not academic panels.

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The American Association of University Women, which supports SB 967, wrote a missive titled “5 Ways Faculty and Staff Can Fight Sexual Violence on Campus.” It does not mention police. Solutions include lectures by experts, training for faculty and such actions as having “people affected by violence decorate a shirt and hang it on a public clothesline as testimony to the problem of sexual violence.”

The group means well, but its dainty approach to sexual assault is doomed to fail. College administrators are not law enforcement officials, and their legitimate desire to protect victims from not only their attackers but also the harsh scrutiny of a criminal investigation undermines the chance of a successful prosecution.

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“Not Alone,” a White House report on campus sexual assault, exposes the problem. Many victims “want time and privacy to sort through their next steps,” says the report — and that’s OK. The problem with that approach, notes Joe Cohn, policy director for the Foundation for Individual Rights in Education, is that delay means that victims do not provide vital forensic evidence in a timely manner.

Schools should be sending these cases to police first and foremost, Cohn told me.

Instead, academia has resorted to policing language. An earlier version of SB 967 replaced the “no means no” standard for consent with something called “affirmative consent,” meaning the instigator would have had to make sure that a sexual partner consented “by words or clear, unambiguous actions.” “Nonverbal” cues wouldn’t have counted. The Los Angeles Times editorialized, “It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms.”

I find it offensive that lawmakers would consider adult women so hapless that they cannot be expected to say no.

“It’s impossible to say no if you’re drugged or you’re inebriated,” de Leon responded. But the law already stipulates that incapacitated adults cannot consent to sex.

After de Leon ditched the verbal-consent language, SB 967 passed unanimously in the state Senate. Who wants to look soft on campus rape?

Cohn is concerned that the bill would shift the burden of proof from the accuser to the accused — which would invite academic tribunals to serve as star-chamber sessions that begin with a presumption of guilt.

Cohn concluded, “It will result in more expulsions. It will result in more litigation. It’s not going to take more predators off the street.”

De Leon maintains that universities must act because district attorneys often fail to prosecute what they see as “he said/she said” disputes. He’s right. Sometimes prosecutors don’t care enough. Other times, they find a case difficult to prove in a court of law, even with victim cooperation. Academic tribunals are likelier to bring more politics than more justice to these cases.

Rape is rape wherever it happens. There shouldn’t be a different standard just because it happens at a university.

Email Debra J. Saunders at [email protected].

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