COMMENTARY – California recently enacted a new law they say will help prevent campus sexual assault. Known popularly as the “yes means yes” or “affirmative consent” rule, the idea is that people won’t do anything sexual with each other unless someone openly says “yes” or makes an explicit affirmation.

Sounds good, right?



Wrong.



The idea is insulting and dangerous. Here’s why:



1. Sexual assault on campus is a civil rights violation under Title IX and requires proof only of “unwelcomeness,” which is much easier to prove than lack of “affirmative consent.” Terms such as “non-consent” and lack of “affirmative consent,” are used only in the criminal justice system and are much more difficult to prove compared to “unwelcomeness.” Burdensome criminal laws should never be used on campus.



2. “Unwelcome” means a person subjectively does not want sex. “Affirmative consent” means even if a person does not want sex, a forcible attack is allowed so long as the offender claims he made a “mistake” about “affirmative consent.” Under “unwelcomeness,” such “mistakes” are not allowed.



3. Most perpetrators lie about whether a victim gave any type of consent; they can just as easily lie about whether a victim gave “affirmative consent.”



4. “Unwelcomeness” applies to all civil rights assaults on campus whether they occur because of “race, national origin,” etc., or “sex.” Changing the law from “unwelcomeness” to “affirmative consent” allows offenders to rape college women with impunity. Imagine lawmakers proposing a new law allowing black students to “affirmatively consent” to racist violence.



5. Anything other than “unwelcomeness” diminishes women’s 100 percent authority over their bodies by reducing that 100 percent by whatever amount of weight is given to the forcible rapist’s “mistake.”



6. Female students already lack full equality under Massachusetts law (among other states) where gender isn’t even on the list of protected categories for either educational equality or hate crimes laws. “Race” is there, as is “national origin.” Even “transgender” is there, but plain old gender is not, which means female students are only fully equal if they used to be males.



7. All schools that accept federal funds are required to comply with Title IX. This includes nearly every public and private college and university in the nation. However, under a horrible new law (known variously as Campus SaVE, Clery, or the new campus section of the VAWA), schools covered by Title IX now have the ability to subject only violence against women to worse standards (such as “affirmative consent”) compared to violence based on “race, national origin,” etc. The SaVE Act is currently facing a constitutional challenge in federal court (my case) on the grounds that it violates women’s equal protection and due process rights.



If lawmakers really want to make education a safe and egalitarian place for women and girls, they should stop trying to destroy the meaning of the word “unwelcomeness,” and focus instead on making sure “gender” appears in all civil rights and hate crimes laws.



And members of Congress such as McCaskill, Gillibrand, Casey, Grassley, Lahey and Blumenthal should stop filing sneaky legislation such as Campus SaVE and the latest bad idea, “CASA.” These laws look good but they segregate and weaken women’s rights. President Obama has been touting these laws as good things and he recently announced another “task force” he says will help stop the epidemic of campus sexual assault.



But the proof is in the headlines.



Students have been back to campus for less than a month and in the past two weeks alone, in just one region of Massachusetts, the media have reported multiple sexual attacks of women at Stonehill College, Framingham State University and Bridgewater State University. Most of the facts are being hidden from the public and, to nobody’s surprise, the schools are citing the SaVE Act as giving them permission to keep information confidential. Officials even refuse to say whether they are complying with civil rights laws or imposing more burdensome criminal law standards on campus.



Students and the general public have a right to know the truth, but oversight is tough because Congress has given schools permission to be more secretive than ever before. For tips on how to hold schools accountable – check out campusaccountability.org.



Wendy Murphy is adjunct professor of law at New England Law|Boston and a well-known television legal analyst. A former prosecutor, Murphy specializes in the representation of crime victims in civil and criminal litigation. Her first book “And Justice For Some” was published in 2007 and was released in paperback in 2013. Read more of her columns at wendymurphylaw.com.



