Ben Boychuk: Don’t combat ‘rape culture’ by taking away rights

Legislation is almost always a blunt instrument. State Sen. Kevin de León’s Senate Bill 967 is perhaps more ham-fisted than most. If passed, the Los Angeles Democrat’s bill would require state college and university students to obtain “ongoing” “affirmative consent” throughout “a sexual activity.”

Just imagine the complications. Did she say “yes”? Be certain now. Did you get it in writing? Maybe you should have. Were you drinking? Was she? Oh no, that won’t do at all. An intoxicated person can’t consent to anything.

Maybe she didn’t say “yes.” Maybe she didn’t say “no.” That wouldn’t matter under SB 967, which says: “Lack of protest or resistance does not mean consent, nor does silence mean consent.” Where honor is dead and gone, law would fill the void.

Would de León’s law work in practice? It’s hard to know how it could possibly work at all. As written, SB 967 offers an unsettlingly vague definition of “affirmative consent.” Such consent, the bill’s language states, “means affirmative, conscious, and voluntary agreement to engage in sexual activity.”

Even feminist supporters of affirmative consent laws see the trouble here. “There will no doubt still be he said-she said battles over who said ‘yes’ and when,” wrote Martha Kempner, a consultant and “sexual health expert” who blogs at RH (Reproductive Health) Reality Check. Yet she still endorses de León’s bill.

At Slate, meanwhile, Amanda Hess is enthusiastic about the idea, as long as the bill is “broad enough to include nonverbal cues.” It isn’t.

De León and his colleagues wouldn’t be so keen to do something – anything – about the so-called campus “rape culture” if the federal government wasn’t demanding action and threatening to withhold precious education funding if states don’t show results.

The U.S. Department of Education’s Office of Civil Rights is already investigating a handful of California universities, including UC Berkeley and Occidental College, for failing to take claims of sexual violence seriously enough.

Just this week, Sen. Claire McCaskill, D-Mo., released a survey alleging widespread failure among U.S. colleges and universities to arrest this widely reported epidemic of sexual assaults. Among her report’s harrowing details: More than 40 percent of 300 schools surveyed had not investigated a sexual violence claim on campus in the past five years. “Which means,” the senator said, “they’re saying that there have been zero incidents of sexual assault on their campuses in the last five years. That is hard to believe.”

Not as hard to believe as the study’s claim that universities and colleges are failing “to encourage students to report sexual violence.” Every campus has a rape crisis center of some kind, with counselors on call 24 hours a day, seven days a week. Every campus police department offers rape defense programs. “Take Back the Night” is ubiquitous. Is more training and “education” – meaning more bureaucracy – really the answer here?

Underlying these state and federal efforts is a long-held, mostly unquestioned claim that one in five college students are victims of sexual assault.

As my City Journal colleague Heather Mac Donald has pointed out, “Such an assault rate would represent a crime wave unprecedented in civilized history.” And it would far surpass the number of sexual assaults reported in the nation’s most crime-ridden cities. Mac Donald notes, for example, that the rape rate in New Orleans was 0.0234 percent in 2012.

Pay attention to the terminology, however. By definition, all “rape” is “sexual assault,” but not all “sexual assault” is “rape.” Sexual assault has come to mean practically any unwanted, unexpected or regretted sexual encounter – to the point that the term encompasses everything and nothing.

Lawmakers claim they want justice for victims of what are indeed unspeakable violations. But satisfying justice and satisfying a political mandate aren’t the same thing. At a June 30 oversight hearing exploring ways to confront the problem, Assemblyman Das Williams, D-Santa Barbara, said he thought the number of suspensions and expulsions of alleged perpetrators of sexual violence was far too low. His point was unmistakable: Numbers will trump justice every time.

The result is a bill like SB 967, which would empower university administrators to indict, prosecute and convict students for what are by definition criminal offenses. The Legislature would risk running roughshod over due process and utterly dismantle the constitutional right of the accused to confront their accusers in pursuit of a literal bogeyman.

We used to say In loco parentis was dead and gone, that universities could never return to a system of strict oversight of their students. Somehow, the Democrats have found a way.