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California Governor Signs āAffirmative Consentā Bill
Yesterday, California Governor Jerry Brown SB 967, a bill that will require Californiaās university and college students to obtain verifiable āaffirmative consentā for sexual activity. As FIREhas pointed out here on The Torch, under students must receive not just explicit consent to sexual activity but ongoing consentāalthough it is impossible to tell how often students must pause to receive explicit consent in order for their sexual activity to qualify as consensual. The bill also codifies use of the āpreponderance of the evidenceā standard of proof, meaning that a student accused of sexual assault will be found guilty if fact-finders determine it is only slightly more likely than not that the accused committed assault.
FIRE released a statement on the bill in February, explaining how the bill will significantly hinder an accused studentās ability to receive a fair hearing, as well as additional analysis of the billās provisions. We are not alone in arguing that the bill is a harsh blow to due process rights on California campusesāother due process advocates have questioned, for example, whether people can possibly be expected to follow such a strict standard for communication during sex, much less demonstrate during a hearing that they have done so. (When asked how an innocent student could demonstrate he or she received affirmative consent, the billās co-author, Assemblywoman Bonnie Lowenthal, simply said, ā.ā)
In practice, the bill will shift the burden of proof to the accused studentāand supporters of the bill have it for doing so. ¹ū¶³“«Ć½app¹Ł·½, though, should be very worried about lawmakers and college administrators adopting the idea that accused students are essentially guilty until proven innocent.
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