In a very disturbing development, the University of California system has adopted a new policy on adjudication of sexual assault complaints that compounds the erosion of civil liberties already brought by its "affirmative consent" standard.
Now, any non-consensual recording of a sex act, even if it's never shared with anyone, is considered a form of sexual assault. This may seem reasonable until one remembers that verbal agreement isn't considered proof of consent if the accuser claims they were under the influence of alcohol or other drugs. Since such influence isn't always obvious, this means the very act of attempting to create proof of consent could get someone accused of sexual assault.
This prospect looms even larger because of another change. UC is now abandoning adversarial process in favor of letting a single administrator hear and decide a case -- an administrator who may feel pressured to produce convictions to justify Title IX funding. The accused's only recourse is to appeal to a higher administrative body, which would have the same institutional bias as the original hearing officer.
This isn't only an assault on due process; it's also an assault on sexual freedom. While encouraging people to be comfortable talking about sex with prospective partners -- or anyone else -- is absolutely a good thing, trying to prescribe forms of consent in this way can only have an intimidating effect on people as they explore their sexuality, something that typically involves a good deal of anxiety already. Taken to its extreme, it could lead to involuntary abstinence for women and men alike. Accordingly, I've written UC President Janet Napolitano (email@example.com) as follows:
Dear President Napolitano: I urge you to reverse the new policy concerning adjudication of sexual assault complaints at UC. It is unacceptable to give a single administrator, possibly under pressure to get "results" to justify Title IX funding, the power and responsibility to adjudicate such serious accusations -- especially when the new definition of assault covers the very recording that the affirmative consent standard makes necessary for proving innocence. This puts the accused truly in a Catch-22.
The option to appeal does not adequately address these concerns, since it would still leave the ultimate decision in administrative hands. We have already seen examples of universities' refusing to consider clearly exculpatory evidence on the technical grounds that the original trial was procedurally correct, as illustrated here: https://kcjohnson.files.wordpress.com/2013/08/amherst-complaint.pdf
Please restore adversarial process and the presumption of innocence without delay.For further information on this issue, visit Stop Abusive and Violent Environments at http://www.SAVEservices.org
Here's an excellent piece by Wendy Kaminer on what's wrong with "affirmative consent" as a legal standard.