The Times Gets “Affirmative Consent” Wrong

The Times and the Nation have both published articles on California’s “affirmative consent” bill, the litigator’s dream signed into law Sunday by Governor Jerry Brown. One piece was responsible journalism; the other was agitprop. Given that Richard Pérez-Peña co-authored the Times article, it’s not hard to guess which was agitprop.

The new California law requires colleges to weaken due process protections for accused students in two ways. First, it mandates that all schools in the state use the “preponderance-of-evidence” standard (without ensuring that accused students have all the protections of civil litigants, with which preponderance-of-evidence is usually associated). It’s true that the current OCR has demanded this standard, but the law ensures that even if the federal government subsequently changes its mind, the threshold will remain in California.

Second, the law tells colleges (but, bizarrely, only colleges) that they must adjudicate rape claims so that the accused student must prove that he obtained “affirmative consent,” on an ongoing basis, during intercourse. That consent can be verbal or non-verbal, but the legislature never defined what non-verbal consent might be. Unless an accused student had videotapes of all sexual encounters (and thus violates other provisions of California law), it’s hard to see how he could prove that he obtained affirmative consent, much less on an ongoing basis. But don’t take my word for it. When asked how a student could prove he obtained affirmative consent, the bill’s co-sponsor, Assemblywoman Bonnie Lowenthal, said, “Your guess is as good as mine.”

Lowenthal’s quote appears nowhere in Pérez-Peña’s co-authored piece. As has been customary in the paper’s coverage of the campus sexual assault issue, the Times article quotes from no civil liberties groups. (FIRE has posted comments on-line; Pérez-Peña didn’t even have to pick up his phone.) The article likewise quotes from no defense attorneys. Instead, the sole thrust of the Times story, in which Ian Lovett joined Pérez-Peña on the byline, is whether “affirmative consent” will help address “what many regard as an epidemic of campus sexual assault.” (Pérez-Peña doesn’t even mention the law’s mandate of “preponderance of evidence.”)

Pérez-Peña and Lovett quote from one researcher who states that no evidence exists (one way or the other) of whether “affirmative consent” has any impact on the number of sexual assaults on campus. But, they add in their own voices, “Some administrators and campus activists insist that they see signs that the strategy is working.” To determine the effectiveness, they continue, “experts” cite the need for campus climate surveys. The recent Clemson survey (unmentioned by the Times) gives a sense of how this approach might go awry.

The article’s only mention of how “affirmative consent” might be implemented comes from one of the many self-styled student “activists” who regularly appear in Pérez-Peña’s articles. A Yale student “active in Students Against Sexual Violence” tells the Times that “affirmative consent is an absolutely necessary standard . . . [but] there is always room for improvement in enforcement of these policies.” Translation: even with “affirmative consent,” universities aren’t doing enough to obtain convictions.

Contrast the Times’ wholly one-sided approach with that of Michelle Goldberg in the Nation. In contrast to PP’s opening about the alleged sexual assault “epidemic,” Goldberg opens her piece bluntly: “I’ve been reading everything I can find about California’s new affirmative consent law, and I still can’t quite figure out how it’s going to work in practice.” Goldberg notes the law’s extraordinary vagueness, particularly regarding what constitutes non-verbal consent. “Most of us,” she correctly notes, “know what this kind of consent looks like in practice, but as a legal standard, it’s hard to imagine how it would be implemented.”

Goldberg concludes by lamenting the ideological hypocrisy of the law’s backers. Usually, she observes, progressives “are not comfortable with arguments that overly broad laws are OK because we can trust them to be applied judiciously as opposed to literally. This is particularly true when we’re talking about laws legislating speech and sexual behavior.” The law, she fears, will turn the “vast majority of college students . . . into rapists, victims or both.”

That’s news the Times didn’t see fit to print.


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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19 thoughts on “The Times Gets “Affirmative Consent” Wrong

  1. I wonder how the economic viability of California colleges will be affected by all the potential male students getting their degrees out of state or on-line?

  2. “without ensuring that accused students have all the protections of civil litigants, with which preponderance-of-evidence is usually associated”

    What protections would that be? I am not an American so I have no idea where I would find that information.

    “and thus violates other provisions of California law”

    Which provisions would be violated?

  3. What does the law say if the two (or more) sexual partners attend different colleges. For that matter, what qualifies as a college under this law?

    Putting aside the neo-puritanism, my common sense says the State of California has put aside equal treatment under the law, and created a privileged class of citizens. What do the professionals say?

    How are the OCR regulations different from this law on the above questions?

  4. “Paradise By the Dashboard Lights” is about to see a resurgence in popularity – as a law school exam question.

    So how would a lawyer advise a cautious college student who inquires as to how he might avoid a false accusation?

    a) don’t date any college women, ever;
    b) if you must date a college woman, get consent by text both to any sexual activities and to videotaping them;
    c) if you fail to get consent to videotape or forget to do so, take a selfie of yourself chugging a beer or three before any dates and then if a charge is brought, bring a counterclaim.

    They told me that if I voted for Ronald Reagan, the government would intrude into bedrooms all across America, and well, I voted for Reagan and you know the rest.

    The Junior Anti-Sex League has arrived, a mere 30 years after Orwell predicted.

  5. This is what happens when you allow a fantasy narrative, driven by ideological zealots, to infect the minds of otherwise sane people. It is what comes of the new norm of silencing, shaming and persecuting anyone who speaks or thinks the simple truth. There is, of course, no epidemic of “sexual violence” by any sensible definition of the word. There is only an escalating and never ceasing narrative of victimization by psychologically twisted ideologues that has led to literally a kind of insanity in the nation. Well meaning but lazy citizens, who don’t want to know or admit to the extent our country has come to be dominated by hysterics and mind police, allow the insanity to ensconce itself ever deeper into our lives.

  6. Look at the power this law gives to co-eds. If a couple ever had sex, any time she feels like it, the co-ed can charge her sex-partner with some kind of assault, and he’s sure to be convicted. in fact, if they were ever alone together, she could probably charge assault and get a guilty verdict.

  7. “I suggest multiple witnesses as a consensus would hold more strength than one person’s opinion.”

    I see a new field developing – sex stenographer. You go to your phone app and call one over when the time is ripe. Then she sits there with her little machine and documents everything that happens, including the non-verbal assents. Everybody shakes hands when it’s over, signs the document, and goes on their way. Problem solved.

  8. I noticed that the accused in this article is always referred to as “he”. So what happens when it’s two women? All of this makes me glad that I finished college in 1981!

    1. Of the many absurdities regarding this ill-fated law. Assistant Village Idiot has hit the nail on the head. Good for you.

  9. Since the lovemaking/rape can’t be videotaped, paramours will have to have witnesses to the event. I suggest multiple witnesses as a consensus would hold more strength than one person’s opinion whether there was mutual consent throughout or not.

    1. I believe in all states, the encounter can be videotaped if both parties consent to the video and are of age? But maybe there are states where this runs up against some obscenity statute?

      The witness call is a good one, too, though.

      Man, they’re really incentivizing group sex, aren’t they?

    2. Would sworn statements, for example from an entire team of Lacrosse players, be sufficient to put an end to a rape accusation and trial?

  10. I thought the Left told us abstinence education would never work, because kids gonna have sex. Now they tell us college kids aren’t gonna have sex. Because LAW! Sheesh.

  11. Question: if both male and female college students are dead drunk, which one of them has to obtain “affirmative consent”? We already know the unofficial answer to that: only the male does, but I’m curious what the law says.

    1. If you’re a male college student who’s just awakened with a terrible hangover and the sick realization that you had a drunken hookup in your dorm room, you’d better seriously consider filing a rape charge immediately, especially if it’s someone you don’t really know. Let the Kampus Kops figure out the issue of “blame”‘ since being drunk out of your mind is supposed to absolve the “victim” of campus rape while
      It’s no defense for the perpetrator. Make yourself the victim.

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