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Did you believe you could say no to one and not the other?
My point was that society doesn't make the distinction between you making a stupid decision to walk in an unsafe area and get robbed. It's still a robbery and they are still robbers. They are no less guilty of robbery because you "asked for it."
Yet, society continues to make the distinction that if a woman ends up in a situation where she might end up raped, and she gets raped, that it's not rape.
We make the victim of this particular crime guilty by being in the wrong place at the wrong time. And her perpetrator innocent because she did.
What we don't agree on, is your assertion that this new law somehow takes away someone's freedom - a freedom that they deserve to keep. What freedom would that be?
SECTION 1. Section 67386 is added to the Education Code, to read:
67386. (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(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.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(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.
(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.
(2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
(10) Providing 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 for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third parties.
(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.
(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of every incoming student’s orientation.
That's just Section 1.
Obviously the subject is complex.
I have to ask ... why is mugging so black and white but rape is not?
I just dont believe that we need yet another government politically correct law that further erodes our freedom. The law in question accomplishes nothing other that stacking the evidence against those who find themselves in ambiguous situations.
Guess that's what liberals do - further restrict freedom.
As I said. Want to avoid trouble? NO BE THERE.
If some predator uses roofies or other means to gain an advantage that allows force, then they are wrong, and should be prosecuted. I know all the arguments. So what. Having been robbed twice at gunpoint, I still believe that just because I look like I have money in my wallet does not mean that I was "asking" to be mugged. As a result of my experiences I became more cautious about the places I walked alone at night.
How about you, TM? You keep a pistol under your pillow just in case?
I do NOT think that rape victims are "asking for it". I do think, based upon my own experience, that all of us need to exercise caution in those "situations" that might result in our disadvantage.
And if we become victims? We have the legal infrastructure to pursue justice.
Thanks for all the clarifications of your position, Chuck. But, actually, I wasn't particularly supporting this new fangled law.
On the other hand I don't particularly oppose it either.
I'm fairly indifferent to most legislation (except legalization of marijuana, of course )
Btw: you and NoSnow are having a pretty dang good conversation there. Legitimate views all around. We sure don't need more complex laws ultra-defining and micro-managing personal behaviors that should be simply a matter of decent upbringing and good moral common sense. OTH, the aforementioned do seem to be in short supply.
If someone can't remember if they gave consent, then they did not. Does that make it simpler?
And young men can be raped by their frat brothers, BTW. They probably don't report it as often. But, I wouldn't be surprised if it happens a lot more than we know.
So, we arrest both the man and woman? If neither can remember but it's obvious they had sex and there are witnesses they were going at it ahead of time? What if a guy wakes up with someone he wouldn't dream of having sex with but since he was extremely intoxicated and she took advantage of the situation. Would that pass the yes means yes muster? Or no.
I just had a thought. What if someone - guy or gal, doesn't matter - got so wasted that NO one wanted to have sex with them, not even their own hand. But they went at it solo anyway.
I just had a thought. What if someone - guy or gal, doesn't matter - got so wasted that NO one wanted to have sex with them, not even their own hand. But they went at it solo anyway.
Could the hand press charges?
What if the hand was just an innocent bystander or unwitting accomplice?
I suppose ultimately, I'm glad this is in place. The opinions expressed her sure as heck prove the need for something like this. I hope it becomes widespread.
Got that right. Whats next, keeping a sex contract with you all the time so that if u have sex with someone u have documentation that theres consent? I cant help but laugh.
SECTION 1. Section 67386 is added to the Education Code, to read:
67386. (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(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.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(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.
(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.
(2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
(10) Providing 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 for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third parties.
(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.
(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of every incoming student’s orientation.
That's just Section 1.
Obviously the subject is complex.
Thank you so much for cutting and pasting the actual law chuckman. I love this law!
It's actually not complex at all and it's amazingly well-written. At first, it's intimidating just because it's so long, but the actual reading of this law is easy to understand.
Basically, it says that
1) there must be affirmative assent, and clarifies what that means
2) and I LOVE this - the decision regarding guilt of the accused must be based on a preponderance of the evidence
This is really important for all of you who are saying a girl/boy can just claim rape and the accused is found guilty. Not so. What this means, is that the court looks at ALL of the available evidence, and makes a decision based on what most likely happened.
3) It says the school must create a protocol for how they handle the complaints, including finding and interviewing witnesses, determining if alcohol/drugs were involved, etc.
4) It says that someone who wants to report a rape doesn't have to fear getting in trouble for being where he/she was when the alleged rape occurred.
This is also really important. The accuser can't get in trouble for breaking a school rule for a drinking party or whatever, that is against the rules and could result in some type of disciplinary action. UNLESS it involves cheating or a few other things mentioned. So, the accuser can feel safe to report the crime.
5) It says the school must do it's best to make sure the students know this policy, including putting the policy in their orientation for new students
6) It says they must coordinate with existing resources, like rape crisis organizations, etc.
7) It says they must inform the accuser of available resources
8) It says they must make sure their security personnel is trained on how to handle these reports
9) It says their policy must be based on the federal Higher Education Act of 1965. Yep, 1965.
I also LOVE that this new law does not include anything that should really have much of an impact on the financial resources of the school. Basically, as far as how it impacts existing personnel and resources, it includes creating a SOP for dealing with rape reports, some type of education/information program to inform the students of the policy, and including this info in new student orientation, and educating their existing security personnel.
I love this law.
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