Guilty Until Proven Innocent: The Spread of California’s SB 967

When you’ve been accused of sexual assault, you need to find an attorney who can handle all aspects of the case. Every person accused of a crime knows they face penalties from the courts, but very few realize they face collateral consequences as well. Sexual assault carries more collateral consequences than most offenses. In particular, mere allegations of sexual assault can result in expulsion from school at all levels and may be used to exclude admission into subsequent institutions. For these reasons, it is critical to hire an attorney that stays on top of the changes in not only the criminal law, but also the collateral consequences of convictions. Right now, colleges across the United States are considering policies that drastically change how persons accused of sexual assault are treated in school settings.

In response to what many consider to be an epidemic of sexual assault on college campuses, California Senate Bill 967 was signed into law September 28, 2014. The bill requires new policies to address sexual violence such as specifying that consent to sexual conduct be mutual affirmative consent. “Affirmative consent” means an affirmative, conscious and voluntary agreement to engage in sexual activity. Each person involved is responsible to ensure that he or she has the affirmative consent of the other to engage in sexual activity. Speakers at University of California-Berkeley told students that instead of waiting for your partner to say “no”, you should seek an explicit unambiguous “yes” which can come in the form of a smile, a nod, or a verbal yes. Silence, or lack of resistance does not equate to consent. Affirmative consent must also be ongoing throughout sexual activity and can be revoked at any time. California is the first state to pass such a law. It may not be the last. If upheld by Courts, this type of legislation could come to Ohio soon.

Advocates of the bill argue that college students are more vulnerable to rape than any other age, and the bill is imperative to ensure student safety. The law’s intended purpose is to shift the norm away from women being responsible for preventing rape, to having active conversation among partners.

Opponents of the bill worry it will be overbroad and vague when defining sexual activity as “sexual assault”, undermine due process rights of the accused, impractical to implement, and doesn’t stop those intent on committing sexual assault. The wrongly accused must have fair and equal treatment. Opponents point to the bill’s permission of anonymous allegations, reduced evidentiary standards to the lowest level of “preponderance of the evidence,” and prohibition on examination of the accuser by the accused, preventing an account of what happened from both sides. In turn, this inhibits an honest disciplinary and judicial system.

Cathy Young, from Minding the Campus, feels the notion of mandating verbal consent and reaffirming that consent on a continuing basis throughout the sex act to be “political correctness gone mad,” and that “with the California bill, we have a state legislature effectively mandating how people – at least college students – should behave during sex.” Hans Bader from Legal Insurrection said that “Requiring people to have verbal discussions before sex violates their privacy rights under Supreme Court decisions such as Lawrence v. Texas.”

While opponents may have pointed out the bills shortcomings, there’s no denying that campus sexual assault is a problem that needs to be addressed. However, it is important that we don’t respond to the problem by ignoring common sense and going on a witch hunt. Policy should include safeguards for the falsely accused. Shifting the burden of proof away from the accuser to the accused may seem appropriate from an emotional standpoint, but it goes against our fundamental system of justice which abides by “innocent until proven guilty,” not “guilty until proven innocent.” This does not mean that universities should not teach affirmative consent. There definitely needs to be cultural changes when it comes to sexual assault. However, the proper response is educating students, not crafting a policy that ensures more guilty verdicts and compromises the integrity of the justice system. “Guilty until proven innocent” does not make sexual assault cases more accurate or fair.

If you’re a student and you’ve been accused of sexual assault, it is critical that you find a lawyer willing to fight for your reputation in the administrative school hearings as well as in court. We have handled matters in front of student conduct boards and administrative hearings. We know how to fight for your rights in these non-judicial settings. Call us. We can help.