by Bruce S. Thornton // Defining Ideas
California recently passed a law requiring that sexual encounters between students in universities and colleges can proceed only on the basis of “affirmative, conscious and voluntary agreement.” Failure to resist or to ask the partner to stop the encounter can no longer be taken as consent. Institutions that wish to receive state funds or financial aid must adhere to this standard when investigating charges of “sexual assault,” a phrase redefined to include behaviors once considered boorish or insensitive, but not legally actionable. The California law follows on the 2011 Department of Education’s Office of Civil Rights’s “dear colleague”letter that instructed schools investigating sexual assault complaints to use the “more likely than not” or “preponderance of the evidence” standard of evidence rather than the “clear and convincing” one.