California's "Yes Means Yes" Bill Flawed, Says "Radical Feminist" // There Are Much Better Remedies

WASHINGTON - Aug. 14, 2014 - PRLog -- A so-called "Yes Means Yes" bill in California, designed to reduce campus date rapes, has several major flaws, and there are better, simpler, and much less expensive remedies available, says a law professor who has been tagged a "Radical Feminist" in two different newspapers, and who has brought over 100 legal actions successfully attacking sex discrimination against women.

        The bill, already passed by the California Senate, and about to be considered by the House, would require that there be "affirmative consent" to each "sexual activity."   This would replace, at least for college students, the more usual rule that a woman who is conscious at the time must at least have said "no" for the sexual activity to constitute a rape. As the bill puts it, "lack of protest or resistance does not mean consent, nor does silence mean consent."

        The first major problem, says public interest law professor John Banzhaf, is that virtually nobody, male or female, behaves like that nor expects their date to act like that.  When was the last time anyone saw a movie or read a novel - including movies or novels aimed at a female audience - where the male kept asking "may I touch this" and "may I do that," and the female had to keep saying "yes you may" to each request, asks Banzhaf.  Bacall never expected Bogie to ask for affirmative consent, he notes.

        Laws that are contrary to the way most everyone normally acts and expects other to act obviously can't be very effective or even well enforced, says Banzhaf, noting the classic example of a law which required drivers to stop at every railroad crossing and look both ways before proceeding.

        The male can't simply ask the female at the beginning of the lovemaking, in the words of the bill, to consent generally to "sexual activity," since such generalized consent would presumably include oral and anal sex, and potentially anything in "Fifty Shades of Grey."

        Instead, he would have to get affirmative consent to each and every one of the four or eight or even twelve steps in the lovemaking session.  Not even two meticulous lawyers in bed with each other, and trained to speak with legal precision, would ask for and then expect to receive permission for each precisely specified step in the lovemaking process, notes Banzhaf.

        Because of outcries about the absurdity of requiring "yes" statements to every new stage of lovemaking, the bill and its supporters recognize that affirmative consent can also be given non-verbally.

        But, says Banzhaf, one of the two major reasons why universities have been so reluctant to move aggressively against campus rapes is that their investigatory and adjudication systems are too primitive to handle such complex and sensitive cases.

        Poorly paid and often poorly trained campus police can't adequately handle delicate and complicated investigations of sex crimes, nor can campus adjudication panels - likely to be make up of professors of Math and Slavic Languages, with a few students thrown in - handle the complexities.

        Date rape cases are especially difficult to resolve because in most situations the complainant (and often the accused) are young and immature; in over 90% of the cases at least one if not both parties are under the influence of alcohol (in over 60%, the complainant is too intoxicated to even recall what happened), and it's a "he said, she said" case because there are no other witnesses or other evidence.

        Imagine how much more complicated it gets, says Banzhaf, when the university panel not only has to determine if the complainant ever said "no," but must in addition figure out whether her many different movements or gestures during lovemaking non-verbally signified consent.

        Universities, which have already had to pay out an estimated $100 million because of law suits over their handling of date rape complaints, may well take on far fewer cases if they have to interpret these ambiguous non-verbal gestures  to determine if any satisfy the law’s new affirmative consent requirements.

        Still another important problem with the bill is that it would seemingly create a double standard.  Women who date men who didn’t go to college, or who date men who have graduated, would enjoy a very different and arguably lower standard of protection than those dating current students.

        Male students, who would not normally have to obtain affirmative consent for every step in the lovemaking process when dating women not currently in college, or even women who go to a different college (since any one college has no Title IX obligations to female complainants at another college), would have to suddenly begin asking "may I" and “is it OK to” over and over again.

        Moreover, it's not clear what would happen if two students from the same California university met and had sex in Texas, Florida, or any other state over spring break.  If what the male did is perfectly legal in one of the other 49 states, but doesn't meet the "affirmative-consent" rule unique to California schools, why should he be expelled?  If the female lies about her place of study, or simply fails to mention that she goes to college in California, would the male California college student still be punished for not obtaining the affirmative consent demanded for each step under the California statute?

        Finally, Banzhaf notes, some of the bill’s provisions seem to require considerable expenses, and mandate that they be paid by California taxpayers, not by the school and/or its colleges.

       "The bill does not seem to contain an estimate of what these costs would be if each of these programs had to be both created and then carried out by each of many California colleges and universities, but it does provide that they will be paid by the state - i.e., the taxpayers.”

        Even a strong supporter of the bill - who just debated it with Professor Banzhaf on Huffington Post TV - admits that affirmative consent policies, such as the one already in effect at her own university, don’t work.  In her words, “If there is an affirmative consent standard, which there is, they can’t handle it the best way because they just don’t have the resources to handle it," she admitted.