A bill has cleared California's state legislature that would redefine what constitutes a "rape" on college campuses and encourage universities to expel accused students without any proof that a sexual assault occurred, critics say.
Senate Bill 967, which is sitting on Gov. Jerry Brown's desk waiting to be signed into law, could become a model for the nation as the U.S. Department of Education pushes states to tighten their rules regarding campus rapes.
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The California bill would flip the meaning of "consent" in a sexual encounter.
Instead of the traditional "no means no," the bill would require "affirmative consent." That means the two parties would need to agree to each level of physical contact, starting with touching and kissing. The bill's vague wording has critics worried that, absent written consent, it would be virtually impossible to fend off a false accusation of rape.
"Affirmative consent is just so vague in this bill. It says consent 'must be ongoing in any sexual activity and can be revoked at any time,'" said Dianna Thompson, who testified against the bill as director of Maryland-based Stop Abuse for Everyone.
"Silence doesn't mean anything. You don't have to say anything or make any hand gestures to show that consent has been withdrawn, so how can somebody know that consent has been revoked? You wouldn't know that. This vague bill is going to create more of a rape crisis issue than it is helping," Thompson said.
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The bill also would require a mere "preponderance of the evidence" to convict a student of sexual assault on campus. That's the lowest standard of evidence, lower than the “beyond reasonable doubt” standard used in criminal courts or the middle-ground “clear and convincing evidence” typically used in matters with serious consequences to the accused.
'War on men'
Phyllis Schlafly, founder of the Eagle Forum, a constitutional lawyer and author of more than 30 books, said the bills is "part of the feminist war on men."
"Men are getting only 40 percent of the college degrees now, down from 60 percent at one point, and I guess they want to chase them away from getting a college education. But I agree with the great American principles of innocent until proven guilty and due process of law," said Schlafly, whose latest book, "Who Killed the Family," is scheduled to be released next month by WND Books.
Schlafly said the overhaul of procedures in dealing with rape accusations on college campuses began with a report by the civil rights section of the U.S. Department of Education several months ago.
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"I don't know where they're going with this, but the consequences are terrible for men," she said. "Once accused, they may never be able to get a degree. We're sick and tired of hearing about the war on women when we need to look at the war on men, because the punishment is so severe."
Similar legislation has already been introduced in Congress with the backing of President Obama's education secretary, Arne Duncan. The Campus Sexual Assault bill has been introduced recently by Sen. Claire McCaskill, D-Mo.
"There's no doubt. If there was no federal push from DOE and Sen. McCaskill, there would be no SB 967 in California," said Harry Crouch, president of the National Coalition for Men. "And now this will become a model for the country. The old adage is, 'as California goes, so goes the country.'"
The California bill, co-sponsored by Democrat lawmakers Kevin de Leon of Los Angeles and Hannah Beth Jackson of Santa Barbara, would require "affirmative consent" from both parties before any touching could occur. Since that would be hard to prove in a campus disciplinary tribunal where the rules of criminal due process do not apply, critics say the only fail-safe method of beating a false accusation of rape would be to have one's partner text her consent at every stage of sex.
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Thompson, who co-authored an op-ed in the Santa Barbara Independent about SB 967, warns of dire consequences should the bill become law.
She said the cases will be decided by campus disciplinary tribunals, stacked with faculty and administrators who have no legal experience and no ability to detect bias.
But the worst part about the bill is that an accused student can be thrown out of school based on a "preponderance of the evidence."
"That requires only 50.1 percent certainty, so basically it's going to turn into a 'he said, she said' type situation, and with this low standard they're always going to err on the side of guilt," Thompson told WND. "When you think about sexual assault, it’s a serious crime and it should be investigated as a crime and adjudicated as a crime."
Citing Justice Department data, Thompson said the number of rapes on college campuses has declined dramatically since 1995 and has reached a historic low.
"Rather than celebrate this achievement, SB 967 radically redefines 'sexual assault' to include almost any touching of one person by another without prior 'affirmative consent,'" Thompson said.
Opening door to lawsuits
There are more than 30 active lawsuits right now by male students who were expelled after accusations of sexual assault on college campuses.
"These are people who feel they were falsely accused, and they were just immediately expelled losing all their college dollars. When you are expelled from college, there are far-reaching consequences," Thompson said. "These boys are not going to be able to get into other colleges. What about the background checks for jobs? What are these young men going to do if they have no way of making a living?"
Gov. Brown has until Sept. 30 to sign the bill.
If he does, he will open the floodgates to lawsuits by radical feminist lawyers like Gloria Allred, said Thompson.
"I think there are going to be a lot of lawsuits, because you have to have due process. You can't just take something at someone's word arbitrarily, especially when these young men have so much to lose," Thompson said. "They have their whole life to lose. I think this bill is absolutely going to have devastating consequences. I can't believe it's even gotten this far."
No exemption for married students
The bill also lacks any exemption for married students living on campus.
"If a man's wife falls asleep, first he would need to ask permission to wake her up and give her a kiss," said David Usher, director of the St. Louis-based Center for Marriage Policy. "There's no exception for married college students. To me, that is empirical proof that this was not a thoroughly vetted bill by any stretch of the imagination."
Usher said he has contacted the governor's office and is appealing to Brown, who is an attorney, to reject the bill on constitutional grounds.
"This bill is clearly unconstitutional," he said. "Colleges are going to have to kick guys out of school or Gloria Allred is going to sue them out of business. This gives them front-row status to just file lawsuits and automatically win by default in any suit [in which] there is a complaint and they don't automatically throw the boy out of college. It's a scam."
Thompson said she knows of one young man who dated a girl for a year when he was falsely accused after he broke up with her.
"He broke up with her, and she didn't like it, and she accused him. She continued to date him for five months after the alleged rape, and it's like, 'are you kidding me?'" she said. "And these are the kinds of incidents we are going to see much more of if this bill becomes law.
"I have five girls and three in college. And even as a mother of five girls I don't think this is a good idea."
Many critics, including Usher and Schlafly, see the mentality of those pushing SB 967 in those who tried to prosecute three members of the Duke Lacrosse team on rape charges in 2006. The men ended up being exonerated and the accusations exposed as blatantly false.
"Look at the Duke Lacrosse case. The prosecutor got disbarred but there was no punishment for the faculty that treated those gentlemen so terribly," Schlafly said. "And this bill would just bring the Duke Lacrosse unfairness and mischief to every college campus."
"Duke Lacrosse, within two weeks I had declared that thing a total fraud and was doing radio shows all over the country," he said. "I went up against the woman who handles the Violence Against Women Act grants, which are all given out through one state agency. And of course anybody who wants to help men doesn't get money."
The Violence Against Women Act was passed by Congress and signed by President Bill Clinton in 1994.
That was an election year.
Usher said the radical feminist lobby "saves its nastiest legislation" for election years, when they can more easily paint politicians as "waging a war on women" if they don't fall in line.
"That's why you see this bill in California, and that's why you see McCaskill's bill that would do something very similar at the federal level," he said. "Feminists are in trouble because their rape allegation stuff is not working out very well with all the lawsuits, and they have a limited amount of time to try to eliminate lawsuits from men and create a precedent in California so they can say, 'Look what they're doing in California and now we've got to do the same thing in Congress.'
"The colleges don't want to mess with this," Usher continued. "They want to say, 'Hey, if you think you've been raped, go make your complaint to the police.'"
In the end, it's real-life relationships that are affected by poorly worded and ill-advised legislation, he said.
"This is what feminist laws do. They're designed to break down trust between men and women, to destroy relationships between men and women, to make it opportunistic for women and dangerous for men," Usher said. "And this strengthens the feminist standing to sue for big damages if the colleges don't throw the guy out.
"So literally the feminist rumor mill is going to run college campuses."
Usher said some of the most radical feminists go so far as to teach that all non-lesbian sex is a form of rape.
"These are all things that have been taught in women's studies classes on college campuses," he said. "These are not just something some radical wrote in the 1960s."
Usher said bills like the one in California create a separate legal status for a specific "victim group," giving them standing to file lawsuits against a college if they do not expel the person being accused. At the same time, the bill would undercut the legal standing of those falsely accused to file suits against the university.
The morning-after remorse
College hasn't changed in the past 50 years, Usher said.
"Two kids, they get drunk on a Friday or Saturday night, and the barriers come down and then they wake up the next morning and one of them says, 'Why did I do that?'" he said. "But now as far as the feminists think, if a woman has one beer and has sex, they are calling it rape."
This is a major departure from the historic concept of rape, which typically involves a violent forcing of one person upon another.
"They've done a good job of developing the psychology. They establish in people's minds that all men are rapists, and now you're seeing those radical elements being codified in California," Usher said. "And everyone thinks it's OK. I simply don't understand why anybody can be this radical. It's mind boggling. It's the most radical feminists of the '60s who have turned California into a feminist power state, and we've got to stop it."
Usher is urging people to call the governor's office and ask him not to sign the bill into law.
One of the bill's co-sponsors told a local newspaper that SB 967 is viewed as a model for the entire nation.
"If the governor signs it, this will lead the entire country, the nation," State Sen. Kevin de Leon told the San Jose Mercury News, calling the approach a "paradigm shift."
Twenty years ago, the idea of gaining explicit consent before engaging in sexual activities was considered so extreme it was – literally – laughable, the Mercury News reported, citing a "Saturday Night Live" skit in 1993 that lampooned the consent policy adopted by Ohio's Antioch College with a game show titled, "Is It Date Rape?"
"May I elevate the level of sexual intimacy by feeling your buttocks?" the male asks.
"Yes. You have my permission," the woman replies.
Since then, colleges and universities all over the country, under pressure from feminist attorneys and the U.S. Department of Education, have rewritten their policies in a way that turns satire into reality.