Speech before California Senate Education Committee on Proposed Affirmative Consent Law

In March of 2014, Anne was invited to speak before the California Senate Education Committee on the subject of the California Campus Affirmative Consent law. On the strength of her speech, several committee members urged the author of the bill under consideration, Sen. Kevin deLeon, to have Anne help with the drafting of the legislation. Unfortunately Sen. deLeon chose to ignore both Anne’s offer and his colleague’s advice, but Anne still drafted up a model affirmative consent law.

View video of Anne Mitchell’s Testimony before the California Senate Education Committee regarding SB 967, the Affirmative Consent Law

Text of Anne Mitchell’s Testimony before the California Senate Education Committee regarding SB 967, the Affirmative Consent Law

Good morning Madam Chair and Members,


Thank you for this opportunity to speak with you.


My name is Anne MItchell. I am here as an attorney whose practice has been solely focused on gender issues, as a woman who has lived on a California university campus, while I was at law school at Stanford, and as the mother of a son who will be going off to college all too soon.


I am also here as the head of a project to prevent school shootings.


You might say that I have a deeply vested interest in safety in the academic arena.


I also have a background in both policy and legislative drafting, including having authored part of our Federal anti-spam law.


And I want to make clear that even though I am here opposing the passage of this bill, I strongly support what this bill is trying to do. It is only the actual language of the bill, as it presently reads, that I oppose. In fact, I would be honored to work with you to help address the language concerns that I bring before you today.


I am also here as a messenger, bearing messages of concern from such recognized authorities as Professor Christina Hoff-Sommers, and, at least as importantly, messages from the mothers of some of the dozens of students, from dozens of universities across the country, who have had their lives destroyed by policies exactly like this one.


Policies that were enacted with the best of intentions, but without the forethought necessary to preclude horrible, disasterous unintended consequences. “He said/she said situations” that rapidly deteriorated into “an innocent life was ruined” situations, and almost to a one because the language of the university sexual conduct policy was vague, ambigous, and overbroad.


Just like the language of this bill.


I cannot put too fine a point on this: each situation started out in exactly the same way. With a campus policy – just like this one. Well-intended, but poorly executed.


Policies which, like this one, shift the burden of proof from the accuser to the accused.


Policies which, like this one, invite charges of a criminal nature into an academic tribunal, peopled not with trained triers of fact, but with academic administrators whose first duty must be to the school. And who out of fear of doing the wrong thing, can’t do the right thing.


A tribunal where the accused faces academic expulsion, and worse, over unknowable, unprovable facts.


Policies which have led to students across the country – at universities such as Occidental, North Dakota University and Xavier University, to name just a few – being labelled as sex offenders and expelled from school, only to have the criminal justice system later determine that they had been wrongly accused. But too late – their lives, already in shambles, will never be the same again.


These students have been destroyed. By policies just like this one.


Policies which, with their very ambiguity and overbreadth invite accusations, both real and imagined – and invented.


Such a policy, requiring ongoing verbal or otherwise clear affirmative consent, without tight definitions, without boundaries, will do – and has done – more harm then good. It exposes students – not just men, but women as well – to misguided, and even specious charges.


Please don’t put


our young women, and our young men, at such risk.


I would suggest that it also puts the universities – the UC system, the CSU system, and any university that would fall within its perview – at financial risk. Because parents will be unwilling to expose their children to the possibility that a confused, or jilted, or even vengeful person could so easily level such an accusation. They will be unwilling to send their children into a system where the burden of proof for such an accusation is on the accused.


How can they prove ongoing affirmative consent? A signed agreement, timestamped every five minutes to prove ongoing consent? A videotape of the act? A witness?


I know that I would never allow my son to attend a school with a policy written the way that this one is, that would put him at such risk for, for example, something as innocent as kissing his girlfriend. Because yes, that simple act falls within the language of this bill.


I commend you for this effort. It is an important effort. Your hearts are in exactly the right place. And I know that you are charged under the Violence Against Women Act to come up with a policy.


But not this policy. Not as it is written.


I implore you, before you move forward, rework the language. Tighten it up. Provide clear definitions for what you mean by terms such as “incapacitated”, and “the influence” of alcohol, drugs or medications. Explain how you determine if consent is present throughout the entire activity, if lack of resistance does not mean consent. Resolve the discrepancy between “expressed either by words or clear, unambiguous action”, and the caution, in the very next sentence, against “relying solely on nonverbal communication.”


I, and the experts on whose behalf I speak, stand ready to assist you in any way that we can.


Professor Hoff-Sommers points out that the infamous “1 in 5” statistic – that 1 in 5 women will experience sexual assault during their college career, is predicated not on a scientific study, but an online survey in which the women did not self-report that they were assaulted, but rather the survey administrators decided that certain activities reported by the women were to be counted as sexual assault. These included such activities as “attempted forced kissing.” On the other hand, a multi-year study by the Federal Bureau of Justice Statistics found that the number of sexual assaults against college women, rather than being 1 in 5, is more on the order of 6 per 1000, and furthermore that the number of sexual assaults against college women is in decline. Still too many, but a far cry from the 1 in 5 that is being used to whip academic administrators into a frenzied panic.


The following are four short statements from the mothers of students who were accused under university sexual assault policies such as the one before us today. These women have entrusted me to carry their message to you; they are trusting you to hear it. Each of these stories is verifiable; two of them are easily found in the media. There are dozens more like them, and it would be my privilege to introduce you to each and every one of the families involved.


Sylvie Casper explains that “My son was accused of sexual assault by another student at the College of William and Mary in January of 2013. Blindsided by the accusation which came two months after the alleged event, he was called before the dean, immediately suspended from the college and had his athletic scholarship revoked. He was given 7 days to appear before a college honor hearing. Realizing how serious these charges were we hired a defense attorney who advised our son not to appear at this hearing. My son was prosecuted in the criminal courts and he was found not guilty. But he was not offered a fair process at the College of William and Mary. The dean told my son that he was facing serious charges. If found guilty he would be suspended and allowed to return only after the accusing student had graduated from the college. The dean also told my son that if he did not attend the hearing, the accuser’s version of the events would be accepted as fact. Given those options my son resigned from the college under duress. Despite the not guilty verdict, my son has not been able to transfer to another college due to his transcript which states he “resigned under suspicion of an honor code violation. Ineligible to return”.


Tiffany H. wants you to know that “In our case, a drunk girl kissed and made advances toward our son. Our son told the girl “No”… 3 days later the accuser saw our son with his girlfriend – a girl he has dated since 2011 – and our son ignored the accuser. Later that evening our son was pulled into the security office at the university and our hell began. He was innocent. He passed a voluntary polygraph. The local law enforcement didn’t prosecute. But still, our son lost his hopes, his dreams, and all he had worked for….he was expelled for sexual misconduct. This is what a preponderance of evidence standard, and the current interpretation of affirmative consent, will do – it will ruin innocent lives. Today our son is trying to put his life back together.. at 18 ½ years old. He suffers from nightmares, anxiety, post traumatic stress disorder, and has trust issues. He is working hard with a counselor to overcome the attack on him. The attack on his innocence. The attack on his reputation and good name. He will never be the same. Our family will never be the same.”


Allison Strange says “I am the mother of a male student who was falsely accused of sexual assault while in college at Auburn University. My son was subsequently expelled from Auburn through a campus disciplinary hearing process that provided him with little support, with no ability to question his accuser on her accusations, with negligible investigation by the school regarding the veracity of his accuser’s claims, and with no due process protections at the college level while he was fighting to clear himself of the accusations in the criminal court system. It has been almost three years since my son’s nightmare began and I still find myself crying about it often, especially when I see how hard he is trying to move forward knowing that his college experience will never be what we had hoped for him. Our family has survived a hellish experience that should never have happened.”


And finally, Sherry Warner-Seefeld says “My name is Sherry Warner-Seefeld and I am the proud mother of Caleb Warner. Our family’s nightmare began in January of 2010 when Caleb was told by the University of North Dakota Dean of Students that a young woman had accused him of sexually assaulting her. Caleb was expelled. [Editor’s Note: Caleb’s accuser was found by the police to have filed a false statement, and a warrant was issued for her arrest. Caleb was cleared of all charges in the local criminal justice system, but the university has staunchly defended its finding, and has blocked all of Caleb’s efforts to reopen his case with the school. His academic career was effectively ended.] Caleb and our family have lived in that frozen state of shock, disbelief and disorientation which victims feel. Personally, I have grown to hate the large flush of adrenaline flowing through my body that I feel every time I talk about this experience. My heart pounds even now as I write these words to strangers who will never see my face or hear the anguish in my voice as I describe the crippling effect of this victimization. The three months of police investigation was a time of unimaginable anxiety and dread, when I would lie awake night after night trying to figure out how to keep my son safe. Honestly, I do not believe the psychological damage will ever truly be gone.”


Again, we know that you are trying to do the right thing. But vague, undefined, and overbroad language is the wrong thing. Especially when it can be so easily abused, so easily miscontrued, so easily misapplied – and can so easily destroy innocent people, based on innocent actions.


Please let us help you to do the right thing, the right way, with the right language.


I thank you again for this opportunity to raise these concerns, and I stand ready to assist you in this effort in any way that I can. Alexandra Salgado has my contact information.


Thank you.