The classical problem in investigating and prosecuting so called date rape cases is that there are seldom any third party eye witnesses to the incident and the case boils down to a contest of he said she said. There have been a number of proposals to change the law to put the burden on the accused rapist to prove that he obtained consent for intercourse. Now there is a legislative proposal to establish a standard of affirmed consent in state colleges and universities.
Bill pushes into college sex lives to help rape victims
California lawmakers want to take the burden of preventing rape off victims by requiring that college students looking to hook up prove they had agreed to have sex.
The "affirmed consent" standard - already in place at many universities - could be required at all publicly funded California colleges and universities under a proposed state law being considered by the Legislature.
The move comes as women's groups - joined by President Obama - have expressed outrage at the lax way college officials across the country have responded to reports of rape on their campuses.
But some say that requiring each partner to explicitly agree to have sex goes too far into people's bedrooms and unfairly limits due process rights of the accused.
Affirmed consent is defined as an "unambiguous and conscious decision by each participant to engage in a mutually agreed upon sexual activity" with the consent ongoing throughout.
The proposed bill, SB967, says that "lack of protest or resistance does not mean consent, nor does silence," and it's the responsibility of the person initiating sex to ensure the other person consents.
The bill by state Sens. Kevin de Leon, D-Los Angeles, and Hannah-Beth Jackson, D-Santa Barbara, passed the Senate and is being considered by the Assembly.
The have been cases where the accused successfully used the defense of, "She didn't say no". This legislation would only apply to college disciplinary proceedings and not criminal trials in the public court system. There are many situations where women students choose not to subject themselves to the stress of the criminal justice system, but want the college administration to take steps to protect them from having to have contact with a man that the say has raped them. That could lead to the suspension or expulsion of the accused student.
UPDATE:
Here is a link to the actual text of the bill.
h/t Tara