Protecting All Students Against Sexual Assault and False Accusations on College Campuses

CalPolyMale2

The above poster appears on the campus of Cal Poly San Luis Obispo, which may be one of the few colleges that publicly acknowledges that sexual assault is as diverse as our population.  Regardless of gender or sexual identity, new college policies and protocols should be very clear that men, women and students who self-identify their genders are all protected equally.The popular media coverage of the California’s Senate Bill 967 “ Yes means Yes” that was signed into law on September 28, 2014, presents the bill as a victory for female students in college against rape. According to the law, college policies must be written so that the onus is on the accused to prove that both participants agreed to sexual activity while sober and cognizant. The implication is that the only way an accused student could be exonerated, if there were no valid witnesses or admissible evidence, would be if the accuser contradicted him/her-self stating that s/he had agreed to have sex while sober and cognizant.  If the accuser was not sober or cognizant, and there was no valid evidence, this assumption of guilt risks that post-coitus regrets could be given precedence over claims of innocence. Self-defense in this situation would be difficult, particularly if the accused was drinking, too. Because the law establishes a higher standard of affirmative consent by both parties, Gordon Finley, an adviser to the National Coalition for Men, an organization that defends males against false accusations of rape, wrote in an editorial asking Brown not to sign “this campus rape crusade bill” because it presumes the guilt of the accused.

Few people deny that there is sexual assault on college campuses and that young females are more vulnerable than young men because of physical disparities in strength, size and alcohol capacity.   Yet, recent revelations from the Catholic church, New England’s elite boarding schools, college and high school football teams and other sports teams, as well as the military, have brought to light that there is habitual under-reporting by males who have been raped or sexually abused while in school. Sexual violence against gay, lesbian, bisexual, transgender, queer, sexually questioning youth and students who self-define their sexuality, is under-reported.

The new state legislation connects control of the disbursement of state funds for student financial assistance to each campus according to their policies on sexual assault. Each campus of the University of California and the California State University, as well as private colleges in California, must come up with a rigorous policy and set of protocols that force the accused to prove his or her innocence. Staff and faculty are to be trained in how to respond to victims of sexual assault, preserve evidence and interview the accused.

The California law “Yes means Yes” is a welcome alternative standard to the use of Title IX of the Education Amendments of 1972in cases of sexual misconduct because federal legislation was intended to prevent discrimination against females in college sports and other activities on campuses that received federal funds. By definition, all sexual assault cases brought under Title IX are cases of sexual aggression by males against females. It is almost a Victorian law in regards to sexuality.

In May 2014, the US Dept. of Education’s Office of Civil Rights released a list of colleges that had possibly violated federal law in terms of how they handled sexual violence and harassment complaints in accordance with Title IX and/or the Cleary Act regarding the reporting and handling of sexual violence and campus safety. The list included the University of California, Berkeley; Occidental College; University of Southern California; Butte-Glen Community College; as well as Harvard College; Swarthmore College; Amherst College; Princeton University, Dartmouth College and the University of Virginia. Yale University was absent from the list, but was one of the first universities to be charged by the US Dept. of Education with allowing a “sexually hostile environment” after 16 students filed a complaint in 2011 over an online video that showed fraternity recruits yelling chants that encouraged rape as they marched across campus.

Unfortunately, the language adopted in new policies on sexual assault by many of the elite higher institutions of learning have been written within the context of Title IX.  Dartmouth College adopted a policy in the spring of 2014 whose wording appears to cast all blame of sexual assault on males, and none on females:

Mandatory expulsion in cases involving penetration accomplished by force, threat, or purposeful incapacitation or where an assault involving penetration is motivated by bias;  

In other cases involving penetration, a strong presumption in favor of expulsion.

No doubt the choice of words reflects legal information that is not readily available, but the limited information sent out to the community of students and alumni indicated that the problem of sexual aggression at Dartmouth was “penetration,” and thus, a male problem only.   It is the focus on and choice of the word “penetration,” instead of the word “rape” or “abuse,” that creates this impression.  In this context, the words “force,” “threat” and “purposeful incapacitation” also connote male force.  There is no wording that indicates an awareness of the sexual aggression of females, sometimes predatory, often times physical, or of female efforts to get males drunk, as the psychology and anthropology departments will attest is not uncommon in cultures throughout the world.

Colleges and universities would do well to read carefully the language of SB 967 as guidelines for their own policies and be very clear that all students, male, female and students who identify as “other,” are equally protected.   The gender neutral aspect of the bill SB 967 is worth noting:

(1) 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.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant 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.

(C) The complainant was unable to communicate due to a mental or physical condition.

Even with a policy that is fair to all genders, and even with well trained staff on every campus to respond to victims and the accused in a just, prompt and accurate manner, the only way the accused can be exonerated, if there were no other viable witnesses or conclusive evidence, would be if the accuser agreed that that s/he was wrong and the accused was innocent.   I do not know if this is a double bind for the accuser or the accused, but it certainly does not make sense. It remains in the hands of the courts to determine if this law violates the Constitutional rights of individuals.

While SB 967 is a step forward in protecting the sexual rights of all students, there is a lot of work to be done on campuses and off.  l

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

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