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NAVIGATING AFFIRMATIVE CONSENT

 

The #MeToo meme has been front and center news ever since the Harvey Weinstein story broke. Many a career has since been ended by revelations from inappropriate workplace flirting to aggressive sexual assault. If the adults can’t navigate this potential minefield, what about the college students? If any group is in the trenches, it’s the kids in college.

This demographic is characterized by raging hormones, immature decision-making skills, and for many, unfortunately, binge drinking. Yet, they are expected, actually required, to navigate the very treacherous territory of sexual consent.  The so-called “active consent” lawenacted in California in 2014, applicable to most colleges and universities in California, requires the schools to have a policy in place that sanctions sexual misconduct.  Sexual misconduct can be heinous acts such as a forced and violent rape, but it can also include an ambiguous sexual encounter. This gray area includes sex that was not affirmatively consented to.

What does that mean? It’s not entirely clear and the students subject to this policy cannot be expected understand the nuances of affirmative consent.  To begin, very often, both parties are inebriated. But under the active consent law, a person is not capable of consenting to sex if she (and it’s almost always a female) is “incapacitated” by drugs or alcohol, even when her intoxication was of her own volition. At what point does one become incapacitated? The law defines it a state induced by drugs or alcohol that prevents a person from understanding the fact, nature, or extent of the sexual activity. If a person has sex with another who is “incapacitated,” even if she was the initiator or aggressor, consent to the sex is, under this law, impossible. (It is similar to the laws that make consent of a person under the age of 18invalid because it assumed a minor does not have the capacity to consent.)

How someone (i.e., the male college student) is supposed to recognize that the female is incapacitated under this law is not clear. And even though he might be drunk as well, his inebriation is no excuse. Under the active consent law, belief in affirmative consent is not reasonable if it arose from the male student’s own inebriation.

All too often, female students submit to sex they do not want to have because they are compromised by drugs or alcohol, or perhaps afraid to say no, pressured into it, or made to feel somehow guilty if they refuse. Over and over again, we hear of male college students, often drunk, manipulating, and sometimes forcing, sex on a female, who is often also drunk, even though she verbally asked him to stop or physically fought the intrusion. This is what affirmative consent seeks to address.

Yet, on virtually every college campus, there are also stories of male students who find themselves subject to disciplinary actions and even criminal charges after what seemed to the male to be consensual sex only to find that the female student alleged she was too drunk to know what she was doing.

How this is reconciled is unclear. When a male student is reported, the consequences can be devastating. Consider the case I previously bloggedabout. That USC student was fortunate that the court dismissed the sexual assault charges against him. Even though video surfaced showing the female to be more than willing to take the male student to her dorm—even leading the way, because she was unquestionably drunk, she was incapable of consent. Although the criminal charges were dropped, this student was recently found “responsible” (the terminology used in the USC student misconduct policy) for sexual misconduct and awaits notice of the sanctions against him.

It is, practically speaking, almost impossible to get affirmative consent every step of the way. (And the law requires that the consent be ongoing.) It is also, practically speaking, impossible to expect college students to abstain from having sex. While it is a good thing that society is becoming more aware of the sexual predation that women have endured for — well probably forever — there must be the acknowledgement that the active consent laws have created confusion about what constitutes sexual consent.  While the entire onus is on the male to inquire about consent, perhaps we should also teach our young women that they need to remind the young men to ask for consent along the way.

Orange County criminal defense attorney William Weinberg has spent 25 years passionately defending individuals accused of crimes, including sexual assault and rape charges. He is available for a free consultation regarding your matter. You may contact him at his Irvine office by calling 949-474-8008 or by emailing him at bill@williamweinberg.com.