This is why California's new "Affirmative Defense" law should never have passed

If you are going to co-sponsor a law, you should have at least some idea how the law works. Apparently, California Assemblyperson Bonnie Lowenthal didn't get that memo.

Lowenthal co-authored the much-maligned "Affirmative Consent" law, otherwise known as "Yes Means Yes." When asked how one who is innocent would prove affirmative consent, Lowenthal's response was, "Your guess is as good as mine." So, Lowenthal says lets just pass a law and see how this plays out.

http://www.sgvtribune.com/government-and-politics/20140608/students-question-affirmative-consent-bill-designed-to-combat-sexual-assaults

Students question ‘affirmative consent’ bill designed to combat sexual assaults
By Josh Dulaney, The San Gabriel Valley Tribune
POSTED: 06/08/14, 5:40 PM PDT | UPDATED: ON 06/08/2014 0 COMMENTS

LONG BEACH >> A bill on its way to the state Assembly mandates that California’s public universities adopt a policy requiring college students to obtain ongoing consent throughout a sexual encounter.

Senate Bill 967, introduced by state Sens. Kevin de Leon, D-Los Angeles, and Hannah-Beth Jackson, D-Santa Barbara, requires Cal State University, the University of California and community college districts to adopt campus anti-sexual violence policies that include an affirmative consent standard.

The bill, which was co-authored by Assemblywoman Bonnie Lowenthal, D-Long Beach, passed the state Senate 27-9 on May 29 and was moved to the Assembly.

“I strongly believe that we need to change the way we look at sexual assault and how we talk about it,” said Lowenthal, who chairs the state Legislative Women’s Caucus, with Jackson as vice chair. “In the past, there’s been legislation requiring campuses to disclose crimes on campus and establish victims’ rights, but all across the state, whether it’s private colleges or public universities, campuses have been failing to prevent assaults and protect victims, so I believe our students deserve better.”

SB 967 requires campuses to adopt the affirmative consent standard when determining whether consent was given.

The bill defines affirmative consent as “an affirmative, unambiguous and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” It adds that consent must be ongoing throughout a sexual encounter and can be revoked at any time, and the existence of a dating relationship between the people involved, or their past sexual relations with one another, can’t be assumed to be an indicator of consent.

A pair of friends at Cal State Long Beach said the bill seemed well-intentioned, but questioned how practical it is when it comes to ensuring consent throughout sex with their partners.

“I feel like their hearts are in the right place, but the implementation is a little too excessive,” said Henry Mu, a 24-year-old biology major. “Are there guidelines? Are we supposed to check every five minutes?”

The remark drew laughter from his friend and fellow 49er, Sue Tang.

“If you were to do that, it would definitely kill the vibe,” said Tang, 27.

Lowenthal said affirmative consent means an individual “must say ‘yes,’” and “if an individual says nothing, that doesn’t imply consent.”

The UC system in February, when SB 967 was introduced, adopted a similar policy, also defining consent as “an affirmative, unambiguous and conscious decision by each participant to engage in mutually agreed-upon sexual activity.”

At the 23-campus CSU system, “the concept of affirmative consent suggested by the bill is in line with our own system-wide policy, and the CSU has taken a position of support on SB 967,” said CSU Spokesman Mike Uhlenkamp in an email.

1 IN 5 WOMEN AFFECTED

SB 967 MOVED TO THE ASSEMBLY A MONTH AFTER A REPORT RELEASED BY THE WHITE HOUSE TASK FORCE TO PROTECT STUDENTS FROM SEXUAL ASSAULT CITED AN OFTEN-REPEATED STATISTIC THAT ONE IN FIVE WOMEN AT COLLEGE HAS BEEN THE VICTIM OF SEXUAL ASSAULT.

Shortly after the report, the federal Department of Education released a list of 55 colleges and universities that were under investigation for allegedly mishandling sexual assault complaints. The list included Occidental College, UC Berkeley and the University of Southern California.

Before the floor vote on SB 967, de Leon urges lawmakers to address the “profound problem” by approving the bill and promoting preventative programming that empowers survivors. De Leon said the “vast majority” of campuses have no consistent program to deal with young women who are traumatized by sexual assault and need services, adding that in some cases, the alleged perpetrator is allowed in the same classes as their victim.

“Twenty percent of young women on a college campus, whether it’s a UC, a Cal State or private independent college, will be sexually assaulted in some form, way or shape,” de Leon said. “We need to have a cultural shift across institutions of higher education to take these crimes very seriously.”

Supporters of the bill, which include the California Coalition Against Sexual Assault and the UC Student Association, say SB 967 is needed because sexual assault on campuses is a gray area that needs to be better defined.

“The general discussion around this is that consent needs to be something that is not in question,” said Kareem Aref, president of the UC Student Association and a student at UC Riverside. “If there’s a point where it’s in question, then you’re doing something wrong. If a woman or a man is not consenting, or if it’s blurry, that they’re not consenting, something’s wrong. It needs to be very clear.”

STATISTIC CHALLENGED

Critics of SB 967 say the “one-in-five” women statistic is dubious, and is used by legislators and universities to create a climate of fear on campus that ignores the rights of the accused.

Samantha Harris, director of policy research at the Philadelphia-based nonprofit Foundation for Individual Rights in Education, said the statistic comes from a 2007 federally funded Campus Sexual Assault Study using broad definitions of sexual violence to inflate the prevalence of the problem.

“Depending on their answers, they were classified as victims, regardless of whether they had identified themselves as victims,” Harris said. “If somebody replied as having sex when drunk then they would be classified as a victim. Sexual assault on campus is a serious issue, but you have to get those numbers right.”

Harris said for too long there has been a lack of due process for the accused in college judicial systems, which, under Title IX, are required to investigate student claims of sexual assault or risk being accused of creating a hostile learning environment under federal civil rights laws.

Other critics of SB 967 say the proposed law is too vague and doesn’t represent consensual sexual interaction in the real world.

“To me, this bill turns most people into sexual assaulters,” said Hans Bader, senior attorney for the Washington, D.C.-based nonprofit Competitive Enterprise Institute.

Bader, who wrote against the bill at www.legalinsurrection.com, said many campuses already broadly define sexual activity, and consent is often a nonverbal cue, with either partner being able to stop the activity at any time. He wondered if romantic partners would need to ask each other’s permission for a kiss or hug.

Bader also said he was concerned about false accusations.

“If someone can be nasty enough to rape, can someone be nasty enough to lie and say (the victim) verbally consented?” Bader said. “Are they going to pass a law saying don’t lie?”

When asked how an innocent person is to prove he or she indeed received consent, Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”