A lack of due process in “yes means yes” — or “affirmative consent” — laws, which seek to define how college men and women engage in sexual activities, isn’t just harmful to men.
Under the recently passed California consent law, colleges and universities have to be just 50.01 percent sure that accusers are telling the truth in order to brand the accused rapists and possibly expel them from school. This “preponderance of evidence” standard can be decided without allowing the accused legal representation or the ability to cross-examine their accusers and witnesses.
Thus far, the focus among critics has been on how this disregard for the Fifth and Sixth Amendments — the basic tenets of the criminal justice system — hurts men, as they are the most likely to be on the receiving end of such treatment. But what isn’t being discussed is the fact that these laws have the potential to hurt women as well.
The laws do not explicitly say that “victims” are all women or that the accused are all men. It couldn’t. Currently, the focus — whether from the Obama administration’s “Dear Colleague” letter or feminist activists — has been on men being the perpetrators. But writing a law to that effect would have caused some serious civil rights violations.
Proponents of the law, such as Vox’s Ezra Klein, note that it is simply a “rare” scenario for an innocent man to be falsely accused, but believe such cases are “necessary” for the law to ultimately work.
Putting aside the fact that this would require defining up to 10 percent of accusations as “rare,” the important point is that this law fosters an increase in such accusations. When the “preponderance of evidence” standard means that the accuser’s story just has to be slightly more believable than the accused, and due process rights are ignored, the attention this law has received (from proponents and opponents) has made it known enough to be a problem.
But here’s a potential scenario the law could create that no one’s talking about: What happens when young men, fearing they will be falsely accused by women they’ve slept with (even if they think that ever-important trust has been achieved), start pre-emptively accusing women of sexual assault because, as the law stands, a man has just as much a right to accuse as a woman?
Usually, men who accuse women of rape are subject to ridicule and portrayed as weak, but a 2012 study published in the American Psychological Association found that 19 to 31 percent of male college students reported experiencing unwanted sexual contact, according to a reading of the study from Pacific-Standard Magazine, a social-science news website. The study’s researchers, according to Pacific-Standard, claimed the vast majority of that unwanted contact was from women.
And what happens if a man counter-accuses a woman who says she couldn’t give consent because she was too drunk by claiming that he was also too drunk to give consent? Should one of these scenarios occur (and I predict they will as those horror stories Klein admonished permeate college campuses), the law would either have to give the man equal credibility or admit the law is inherently biased.
Of course, such a wash could make the law invalid, as the “he said, she said” defense would crumble when both parties had an equal claim to sexual assault.
A third scenario, involving an accusation between a lesbian couple, is also a possibility. And if you think that same-sex sexual assault doesn’t occur, consider this study from the Wisconsin Coalition Against Sexual Assault, which linked to several studies showing anywhere between 5 percent and 57 percent of lesbians reporting they had experienced “attempted or completed sexual assault or rape by another woman.”
Studies have shown that men are far less likely to report sexual assault than women, but with a law like this, where the choice could be between seeing their futures ruined by an accusation or coming forward with an accusation — young men would likely choose the latter option.
If the law remains as it is written, then women would become just as disadvantaged. If, as opponents predict, the law leads to an increase of accusations, anyone accused — man or woman — would be hurt by the lack of basic due process rights.
