Janet Napolitano, president of the University of California and a former prosecutor and secretary of Homeland Security, warned in an article in the Yale Law & Policy Review published online this month that "a cottage industry is being created" on campuses dedicated to handling tasks that fall outside the expertise of colleges and universitiesUnfortunately, Napolitano's essay at Yale Law & Policy Review (PDF) tries hard to thread the political needle of rape hysteria while at least appearing to give the accused their due. She makes the claim, which real civil rights advocates would reject, that "universities are well positioned to undertake the necessary education and research, and prevention and response actions, that leadership in this area will require." She further endorses the silly and wholly impractical "yes means yes" standard:
"Rather than pushing institutions to become surrogates for the criminal justice system," she said, policymakers should ask if "more work should be done to improve that system’s handling and prosecution of sexual assault cases."
Critics claimed, among other arguments, that affirmative consent standards are unfair to those accused of sexual violence. But UC’S policy language negates those claims‐ -- “consent is an affirmative, unambiguous, and conscious decision by each par‐ticipant to engage in mutually agreed upon sexual activity.” The standard pro‐vides greater clarity for both partners than the previous “no means no” stand‐ard by requiring lucid, affirmative statements or actions at each step of a sexual encounter in order to ensure consent. Put simply, only yes means yes.This is magical thinking that entirely elides the real problems of discerning consent in the absence of signed releases or actual video. As Cathy Young observed last year in Time,
One of the partners could start feeling ambivalent about an encounter after the fact and reinterpret it as coerced — especially after repeatedly hearing the message that only a clear “yes” constitutes real consent. In essence, advocates of affirmative consent are admitting that they’re not sure what constitutes a violation; they are asking people to trust that the system won’t be abused. This is not how the rule of law works.
In other words, there's no means to ascertain whether consent actually occurred. This recently came up in a case at Washington & Lee University, in which a girl declared she had been raped after seeing her boyfriend kiss another girl; rape charges were filed long after their sexual encounters. If anything, this is a setup for a mammoth expansion of the bureaucracy and a micromanaging of students' personal affairs.
Viewed strictly as a bureaucratic turf battle (i.e. mission creep), this makes sense, but it's clear it serves no other end. Napolitano created a new "task force" with broad mandates and lofty mission statements, but no specifics with regards to protecting the rights of the accused. It's larded with boilerplate language from the rape crisis hysterics, with accusors dubbed "brave student survivors" with all the forthright hyperbole one expects in praise for fourth graders. If Napolitano has come out, timidly, late, and not especially forthrightly for principles of justice, whatever positives may arise there are washed away by her collusion with the OCR and its corrosive contempt for due process.