They say Washington, D.C., is Hollywood for the ugly. I can only imagine what this analogy makes Sacramento, which is inhabited by those ambitious California pols who can’t quite make it to Congress.
I’m not sure how those überuglies do the sex up there in Sacramento, and normally none of us should care how these elected frog people get laid. Except that they have now inflicted their ignorance of normal human sexual behavior on the other 38 million people in their state, in the form of a bill that Governor Jerry Brown signed into law Monday. The law requires state colleges to impose safeguards that sound more appropriate in an autistic dating game: that is, students must obtain “affirmative consent” before engaging in “sexual activity” and then ensure that said consent is “ongoing throughout a sexual activity.”
Under the new standard, just about every love scene ever filmed is a rape, unless I missed the part in Ghost where Patrick Swayze received Demi Moore’s explicit consent to mess about with her pottery wheel. One thing leading to another is now just a series of escalating violations. Maybe we should put each of those activities on a checklist to be produced after the first come-hither glance, so everyone knows exactly how far things are going. Sounds like seduction as imagined by Elliot Rodger.
The lawmakers have decided that body language is too ambiguous, but there’s nothing concrete about oral agreements either. Shouldn’t we proceed to contracts? Perhaps involve witnesses? Or maybe that’s too far. Just tape the encounter and store it somewhere secure, like iCloud.
There ought to be an app for this problem, Reason’s Robby Soave figured in a June article. Then somebody invented one, calling it Good2Go. The company even held a rally to push Governor Brown to sign the “Yes Means Yes” bill.
The app allows one party—let’s call him Cary Grant—to hand his phone to the other—say, Katharine Hepburn—so that she can check a response to the question, “Are We Good2Go?” If Hepburn is indeed good2go, she checks, “I’mDown4thaSexx!” (OK, I made that last part up.)
The app then allows Hepburn to choose one of four states of inebriation to describe her present state: “Sober,” “Mildly Intoxicated,” “Intoxicated but Good2Go,” or “Pretty Wasted.” The last option shuts the process off. The others continue with some entering of phone numbers and poking and texting, and then on to the certifiably consensual sex.
Dozens of stories on the bill’s signing mention Good2Go as a solution, but Soave, to his credit, recognized that there’s a serious problem with the app: if you use it, you might be effectively signing your own rape confession.
The problem is that the new law holds Cary Grant liable if he “knew or reasonably should have known that the complainant was unable to consent to the sexual activity” because Hepburn was “incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.”
That’s a much broader definition than state criminal law, which covers situations where “a person is prevented from resisting by any intoxicating or anesthetic substance.” If “understanding the full extent” is the standard, the standard is meaningless, because people don’t manage to understand the full extent of much of anything they do. Coming up with a misunderstanding is a lot easier than proving physical incapacitation, and judging from the record so far, that’s exactly the sort of argument we’ll see.
The untrained and unaccountable campus officials doing the interpretation are under pressure from the federal government, and now from the state, to be seen as cracking down on sexual violence on campus. So incapacitation gets redefined as intoxicated, or even simply uninhibited, and any consent to a drunken encounter becomes invalid after the fact.
Hepburn might say she’s “Intoxicated but Good2Go,” but an administrator could use that as evidence against Grant, proof that he knew she was drunk and that her consent wasn’t valid. In effect, the state of California has made every drunken collegiate hookup a potential sexual assault. I think smart high school seniors will look to attend college elsewhere.
If a freshman takes off her blouse while dancing for a classmate in his dorm room, then climbs on him and kisses him, you might say she’s sending a certain signal. But in a case at Occidental College, where that sort of thing led to its obvious and consensual conclusion, the automaton who reviewed the case determined that “the Complainant’s taking off her shirt while dancing in his room was inconsistent with her customary behavior,” and that this should have told the young man she was “incapacitated.” Who gets naked in front of others “customarily,” other than strippers?
The young man was expelled, and then he sued Occidental pseudonymously as a John Doe. He may well prevail, as the consent can be proven through text messages and the statements of both parties. A prosecutor who reviewed the case declined to press charges because “It would be reasonable for him to conclude based on their communications and her actions that, even though she was intoxicated, she could still exercise reasonable judgment.”
One of Doe’s attorneys writes that the “definition of incapacitation applied by Occidental in Doe’s case is so faulty and unfair that, using the same applied definition and given the same evidence, Doe’s accuser would be guilty of sexually assaulting Doe.” After all, they were both drunk.
Occidental is one of seventy colleges under investigation by the Department of Education following a 2011 interpretation of Title IX, which held that sexual assault on campus is a form of sex discrimination. The college has been hit with a federal complaint by feminist professors, who have also generated horrific coverage of the university. One of the professors even carried on an affair with a reporter for the Los Angeles Times, who wrote a front-page story accusing Occidental of failing to report sexual assaults. The story was later retracted in its entirety, and the reporter fired. But the problem is hardly isolated.
The California law threatens to cut off state funds for universities that don’t go along with the new regime, which includes impunity for people who make false accusations. The law has a requirement “that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions.”
I don’t doubt that men getting away with rape is a bigger problem than women filing false complaints out of shame or revenge. The scale isn’t my concern here: both are evil. I covered cops and courts for several years, and spent hours digging through arrest warrants and investigatory records. Often, far too often, I’d come across a credible complaint of rape filed with the police, only to watch it disappear. Some no doubt were unfounded, but too often, there’s just not enough evidence to convince a prosecutor to bring a case. The one thing I learned was that it’s crucial for victims to report the crime right away, to get examined by a nurse. Those are the cases that got prosecuted.
I can sympathize with the activists who are outraged at how little justice they get from the system. But they’re wrong to think there’s more to be had from school employees taking guesses about who said yes to what.