California's New Sexual Assault Law and the Catholic Church

As reported in America’s Sept. 29th Current Comment “Protecting Human Dignity,” California Governor Jerry Brown has signed into law the country’s first “affirmative consent” bill, mandating that sexual partners on state college campuses must give “affirmative, conscious and voluntary agreement” for sexual activity to be considered legal. That is to say, neither silence nor a lack of resistance can any longer be construed as implying consent; nor can young people who are drunk, high, asleep or unconscious be considered as having given their consent for sexual activity.

Critics have attacked the law for its intrusiveness into matters of the bedroom—a place the state rarely makes out well, no matter its intentions. And its insistence that both partners give consent does not mean that such consent will now be any easier to prove. He said/she said, unfortunately, remains in play.

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But an interesting side effect of the new law is the conversation it is almost sure to provoke among and within young people about sex itself. In Western culture today, sexual activity is most often presented as a form of self-gratification, little more than a kind of masturbation involving someone else.

The Catholic Church has long challenged this view, insisting that sexual intimacy demands mutuality. So the Pontifical Council for the Family in its 1995 document “The Truth and Meaning of Human Sexuality” tellingly describes sex as “a way of relating and being open to others.” Its intrinsic end, says the Council, is love— “love as donation and acceptance, love as giving and receiving.”  

Likewise in her 2006 book Just Love, theologian Margaret Farley insists that at the heart of sexual expression lies justice, a respect and concern for one’s partner. 

It’s the great paradox: we often perceive sex as the fullest expression of ourselves. And yet, in truth that self-realization is not achieved by "gettin' some," but through our generosity.  

Though operating out of a wholly secular framework, California’s new law calls young people to a similar point of view. We're used to seeing consent as “a light switch,” on or off, writes Jaclyn Friedman, co-editor of Yes Means Yes: Visions of Sexual Power and a World Without Rape. But consent is actually the context for the whole of sexual experience. “Consent isn’t a question,” she writes, “It’s a state. If, instead of lovers, the two of you were synchronized swimmers, consent would be the water. It’s not enough to jump in, get wet and climb out — if you want to swim, you have to be in the water continually. And if you want to have sex, you have to be continually in a state of enthusiastic consent with your partner.” Sexual activity not only begins, but builds, climaxes and ends with both partners’ ongoing “yes.” As Molly Bloom says at the astonishing ending of James Joyce's Ulysses, "Yes I said yes I will Yes."

Could it be that a state law (signed into law by a former Jesuit no less) could get teenagers reading the Catechism and holding "I'm Saving Myself" rallies? Stay tuned. Insofar as it protects the vulnerable and demands young people stop to consider the needs of the person in front of them, it is certainly a very positive step.

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Marie Rehbein
3 years 2 months ago
I think it's a good attempt to make things more clear to say that only yes means yes. However, if both young people are high or drunk, the male will be held to account and the female won't if something happens, it seems. I think this is where the law isn't clear, because which drunk person really is responsible? Is the drunk male still supposed to know what he is doing if the female is drunkenly saying "yes"?
G Peterson
3 years 2 months ago
Yes, but. The new California law is more than "intrusive" into matters of the bedroom. From the perspective of a lawyer and a civil libertarian, it is a serious step backwards. The law requires affirmative consent at every step of any physical romantic encounter. Holding hands. Putting foreheads together. Kissing. Hugging. Cuddling in the morning. Failure to ask for and obtain affirmative consent to each and every activity constitutes sexual assault under the law. Although the law permits non-verbal consent, even the authors of the act said they were at a loss to say how non-verbal consent could be demonstrated. The law expressly provides that a prior relationship, even a longstanding relationship, does not excuse the failure to obtain explicit, affirmative consent to each and every activity on each and every occasion. And the law mandates this level of communications detail between married couples as well, if either of them is a student at any institution of higher education in California. Consent is vitiated not merely in circumstances where the alleged victim was asleep or incapacitated by alcohol or drugs, but also if consent was obtained by "coercion." Coercion under these campus rules are defined broadly, and typically include begging for sex or ending a relationship. Virtually all breakup sex can be treated as rape under the new regime. Accusations are judged by either a campus tribunal of ill-trained students, faculty and staff, or by an independent investigator managed by the campus Title IX enforcement official. The training provided for all of the above emphasize that complainants are to be referred to and presumptively treated as victims, meaning accuseds are presumptive treated as perpetrators. The Federal government is demanding ongoing data reporting of the number of convictions, under threat of removing federal funds from the institution and its students. The system is rigged to demand ever-greater numbers of complaints and convictions, because people's employment depends on encouraging complaints and generating convictions. The standard of evidence required to convict has been lowered by the California law to "preponderance of the evidence," functionally 50.1%, or barely better than a coin toss. Subjective views of the credibility of an accused will be sufficient to completely disregard the accused's version of events. As a practical matter this eliminates "He Said." Supporters say that this is the same standard used in civil lawsuits. But in civil lawsuits the parties are entitled to be represented by lawyers and to question the other side and engage in discovery. The California law provides for no representation of accuseds by counsel, no right to confront and question the accuser, and no right to engage in discovery. And under pressure from the Federal government, most colleges and universities have established their rules to severely discourage (in the case of public universities), or outright ban (in the case of private universities) an accused's access to legal counsel, and severely curtail or ban any questioning of the accuser. Taken together, the new system amounts to one in which there is a presumption of guilt against the accused. If the first investigation or campus court does not result in conviction, the accuser can appeal for an over-riding conviction decision (i.e., double jeopardy is allowed). Every meaningful element of due process, developed over centuries of Anglo-American law back to Magna Carta, has been eliminated. Already the same groups behind the California law are pressing for colleges and universities to expel in nearly every case.And even an accused found innocent should not expect to be off the hook. This past spring at Yale University, where a similar affirmative consent requirement applies, a young man was found innocent (a great rarity) and then Yale punished him anyway. Moreover, the punishment for conviction is suspension or expulsion from college or university, an inability to transfer to other colleges or universities, and ultimately, difficulty or impossibility entering a job requiring a state license, be it as a plumber, electrician, doctor or lawyer. And this at a time when men make up barely more than 40% of college graduates. In short, the law and the current environment result in economic capital punishment, based on convictions under a system presuming the guilt of every accused, in a context where 3rd party witness proof is nearly never available, and an underlying legal obligation that is so complicated, repetitive and opposite to normal human sexual encounters, "gotcha" opportunities are guaranteed to occur. So, while I appreciate and agree with your moral view of the proper role of sexual activity in human life, live my life that way and tried to raise my kids to hold those views, I cannot accept a law which promotes at every level a wholly arbitrary, capricious and ideologically-driven approach to justice. Once we viewed with profound distaste and even condemnation the horrors and the injustice of the Dreyfus Affair, the Inquisition, and the Salem Witch Trials. Apparently California has forgotten those painful lessons.

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