Ongoing UC Forays Into Sexual Assault Policy

In two weeks, the University of California Board of Regents is expected to hear recommendations from its task force regarding best practices moving forward with the University’s newly expanded sexual assault policy.

Formed in June, following the expansion of UC’s sexual assault policy in March, President Janet Napolitano’s systemwide task force consists of 28 regents, staff and students from across 10 campuses.

A key point in UC’s new sexual assault policy was an “affirmative consent” standard requiring that the agreement to have sex must be an unambiguous and conscious decision, free from coercion, to be understood under no state of incapacitation by each participant.

Converging with both the timeframe and direction of UC’s current push to address gaps in its own sexual assault policies, California politics have also seen recent efforts to augment the sexual assault policies of all institutions of higher education that receive public funding.

Last week, the California Legislature approved a bill that requires public universities and colleges that receive government funding must adopt a similar standard of affirmative consent within their respective sexual assault policies.

If signed by Governor Jerry Brown, SB 967 will require UCs, California State Universities, community colleges and independent colleges to update their policies to define consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.”

While the UC policy was specific in its language dealing with cases where alcohol or drugs are involved, the Legislature’s bill represented a broader stroke.

During adjudication of sexual assault cases, the UC policy takes into consideration whether or not the alleged assailant, held to the same standards as what policy refers to as a “reasonable person,” understood the victim was incapacitated due to the influence of drugs or alcohol. SB 967, however, more closely associates being under the influence with the circumvention of consent, regardless of which party was intoxicated.

“Being intoxicated by drugs or alcohol does not diminish one’s responsibility to obtain consent,” reads the UC policy, ostensibly allowing for consent to be reached even when drugs or alcohol are involved. The Legislature’s affirmative consent bill currently does not mandate schools to develop an equivalent policy.

Furthermore, the bill specifically stated that silence is not consent. Despite this as well as previous assertions by Assemblywoman Bonnie Lowenthal, one of the bill’s primary co-sponsors, that affirmative consent requires verbal communication, the bill’s final text left room for forms of nonverbal consent with the removal of a clause that previously warned against the danger of relying on nonverbal cues such as body language.

Currently, the UC policy does not address the question of whether or not consent needs to be verbally communicated.

The most current systemwide statistics show that from 2010 to 2012 reported incidents of attempted or completed rapes saw a nearly 20 percent increase from 28 to 37. During those same years, UC Irvine saw 24 reported incidents of sex offenses, with an increase in numbers during the past two years. Half of those were classified as rapes.

In late August, the UC endorsed Senator Barbara Boxer’s (D-CA) Survivor Outreach and Support Campus Act. The SOS Campus Act called for an independent advocate for sexual assault prevention and response at every institution of higher education that receives federal funding. The responsibilities of the advocate would be to inform victims of sexual assault of their options regarding medical care, law enforcement, forensic exams, crisis intervention and legal rights, regardless of whether or not they decide to report the crime.

According to the latest National Crime Victimization Survey from the Department of Justice, sexual assault is one of the most underreported crimes with only 40 percent of incidents reflected in statistics.

The formation of the task force occurred shortly before a report by the California State Auditor that indicted UCLA and Berkeley for improperly handling incidents of sexual assault.

In early August, student representatives from the task force sent out a survey seeking student input regarding experiences with current sexual assault prevention and response efforts at each UC. It is expected that the survey’s findings, as well as the task force’s other recommendations, will be one of the main agenda items of the Regents meeting on September 17 and 18.