It seems strange in the 21st century we are still talking about ways to handle cases of sexual violence on college campuses that are fair to both the accuser and the accused.
But that is exactly what is happening at the University of Hawaii and down at the State Capitol.
Bills are advancing at the Legislature (House Bill 451 and Senate Bill 387) to urge UH, when addressing reports of sexual violence, to apply a standard of affirmative consent to determine if what happened was consensual sex or sexual assault or rape.
The affirmative consent bills are part of an effort to require the university to improve how it handles sexual assault, domestic abuse and other sexual violence issues reported by students, faculty and staff. Each measure says improve or else lose state funding.
This comes at a time when the University of Hawaii at Manoa is one of 55 colleges and universities under federal review for the way they deal with reports of sexual harassment and other sex crimes.
The investigation led by the U.S. Department of Education Civil Rights Office was launched to make sure the educational institutions are in compliance with sexual violence reporting and discipline requirements mandated by the Violence Against Woman Reauthorization Act signed by President Obama in 2013.
“It is painful this has taken so long. It is difficult getting consensus. The university is consensus-driven and you don’t get consensus overnight on much of anything.” — Randy Moore, chairman, UH Board of Regents
If colleges and universities fail to follow the law, they stand to lose federal funding.
Affirmative consent bills moving forward in the state House and Senate are a priority of the Hawaii Women’s Legislative Caucus and the Hawaii Commission on the Status of Women.
Both organizations fault UH for under-reporting and downplaying the seriousness of sexual misconduct on its 10 campuses.
“It is unfortunate the UH has been so slow to progress, “ says Catherine Betts, an attorney who is the executive director of the State Commission on the Status of Women.
In 2013, the last year for which statistics are available, UH Manoa reported 8 forcible sex offenses on campus and in residence halls, and in 2012, there were 11 incidents of forcible sex offenses. In 2011, UH Manoa reported 12 forcible sex offenses.
Betts says colleges and universities that have affirmative consent standards have become safer.
Affirmative consent standards have been adopted in various forms by 800 colleges and universities across the country. It’s called a “yes means yes” policy. California was the first to adopt a statewide policy last year.
In the past, investigations of sexual violence often put the burden of proof on a female victim by asking how hard she fought off her attacker or how many times she said “no.”
Affirmative consent differs by putting the onus on both parties to make a case that they mutually agreed to have sex.
“It is inappropriate for the Legislature to get involved in a definition of affirmative consent. The lawmakers are overstepping their bounds when it is completely unnecessary.” — J.N. Musto, executive director, University of Hawaii Professional Assembly
Betts says, “An affirmative consent standard provides a clear definition of what constitutes consensual sex rather than focusing on what a female victim wore, how well she knew her attacker or what she failed to say to him. With affirmative consent, consensual sex is not the lack of a ‘no’ but rather the presence of a ‘yes,’” says Betts.
Affirmative consent is unambiguous and voluntary agreement to engage in sex, which can be revoked at any time. The agreement must be made consciously.
Betts says this is particularly important considering national news stories about sexual assaults that occurred after victims were intoxicated or drugged. And she says it is consistent with Hawaii law, which states an incapacitated person is incapable of consenting.
Justin Murakami of the Sex Abuse Treatment Center says, “Silence or lack of resistance can no longer be interpreted as a go-ahead for sex.”
The State Senate Higher Education and Judiciary committees heard testimony on an affirmative consent bill and gave the measure preliminary approval.
Members of the House Higher Education committee Tuesday will hear the House version of the bill.
The University of Hawaii objected to the Senate bill at the Senate’s hearing Thursday, saying the issue is already being addressed by the UH internally and that’s where it is best handled.
UH officials say they expect soon to release an updated, system-wide sexual violence policy to put the UH in compliance with new Title IX and VAWA requirements.
UH spokesman Daniel Meisenzahl says the policy is undergoing final review by the university’s attorneys. He says it should be ready within weeks.
The UH says the new policy also includes revised language dealing with affirmative consent.
In addition, the university is supporting a bill that asks for $1.1 million dollars to create a separate office and staff to ensure compliance with federal mandates addressing campus sexual violence.
UH last updated its gender and sexual violence policy in 2006.
“The message you are giving us is you are working on this but we have no idea of how long it is going to take you.” — Senate Judiciary Chairman Gilbert Keith-Agaran, speaking to a UH official
Jan Gouveia, UH vice president for administration, told the state senators whenever there is a system-wide change at the university it takes a long time. She says updating the policy has taken months of research and work with committees, as well as getting agreement from three unions representing more than 10,000 faculty and staff members.
J.N. Musto, executive director of the University of Hawaii Professional Assembly, the faculty union, says he resents the Legislature meddling in this issue.
“We have been working to revise the policy of handling sexual harassment and sexual violence for the last year. It is inappropriate for the Legislature to get involved in a definition of affirmative consent. The lawmakers are overstepping their bounds when it is completely unnecessary.”
Gouveia told lawmakers it is “not the best course of action” to threaten to withhold state funds from the university if it fails to deliver on this issue.
Senate Judiciary Chairman Gilbert Keith-Agaran told Gouveia and university President David Lassner, “the message you are giving us is you are working on this but we have no idea of how long it is going to take you. We don’t know if without an incentive, we can’t be sure the university will do anything.”
In an interview after senators heard testimony on the bill, Randy Moore, chairman of the UH Board of Regents, said, “It is painful this has taken so long. It is difficult getting consensus. The university is consensus-driven and you don’t get consensus overnight on much of anything.”
Moore called the slowness in updating the sexual violence policy particularly painful, “ because this is the 21st century. We have come a long way. It is about appropriate, respectful behavior among human beings.”