Life in Santa Monica generally means having a wide range of friends from different walks of life, mostly from the gym. I workout at the Loews hotel gym, and for me that means I have older retired bazillionaires along with young hipster tech boys who are just making their way in the world, in my social circle. There is also the solid family guy with high school and college kids who I was chatting with this past weekend. His son is in his first year at college and amid the joys of freedom for both parent and child comes the nervousness of a father who recalls the craziness he experienced in a time when the world was much more tolerant of bad behavior by the youth.
As a divorce and child custody lawyer, I have to attend continuing education classes and conferences. I take a wide range of such classes. I’ve attended the basic “annual updates to the law” to highly focused conferences. Part of staying up to date is being aware of how seemingly unrelated issues can impact my client’s interests. That’s why I attended a conference on “Campus Sexual Assault and False Allegations” last month.
Sexual assault is a major topic in the news these days. Vice President Joe Biden appeared at the Oscars specifically to address the issue and highlight the need for prevention and awareness. Colleges across the country have been informed by the federal government that they must do more to end sexual assault and prosecute those cases where it is alleged.
Under Title IX, colleges are tasked with providing a safe environment for students and it is through this lens that the colleges are being forced to become police, prosecutor, judge, jury and enforcer of sexual assault claims. The problem with this is that the area of sex is a murky, confusing, shame-filled, guilt-ridden, morass, often being explored for the first time by college students who are emotionally immature and ill-informed about their wants, needs and boundaries, or those of their purported partners.
Colleges and universities have been given almost no direction or procedures other than the mandate to “do something or risk losing your federal funding” — which means that administrators are scrambling to create protocols without the benefit of legal backgrounds or clear administrative guidelines.
Students are mandated to attend “Assault Awareness Classes” that are poorly constructed with little sense of the reality of how humans engage in courting and sexual relations. The focus is on teaching women that all men are potential rapists and any time they have a bad feeling about their sexual experience they should consider it to be assault at a minimum and rape at the extreme and they should report it. But what is that telling the men? That they are going to be perceived as potential rapists by the women, but also by the college. They will be presumed guilty, and have little chance to be found innocent.
What the colleges do is open an investigation, which is essentially just an administrative process that will result in the accused being put through a hearing where they are not allowed to cross-examine the accuser (because that is blaming the victim and too traumatizing for them), they are generally not allowed an attorney to represent them in the hearing, they are not allowed pre-hearing discovery and they are faced with non-professionals at all stages of this process, most of whom are appointed and not wanting to be there.
The result is that the colleges are finding people guilty of sexual assault and rape on little or no evidence, because they have to “do something” in the current environment and if that means that an innocent person gets their college experience, and maybe their life, ruined, well so be it.
Under California’s Campus Sexual Assault Prevention standard, the “yes means yes” consent law, each party engaging in relations is required to have continuing consent, that means asking at each stage and receiving permission to proceed. Yes means yes is great in concept, but not how most people relate. Also, it’s not a guarantee, because someone can change their mind afterwards and say that even though they said yes, they felt pressured to say yes, so it wasn’t actually a yes. Is that grounds for a sexual assault claim? Yes. Should it be? Not in my book.
We can’t tell people they have to be clear in their communications and then allow them to ex post facto change the meaning of their words. We do a disservice to everyone when we don’t have standards for due process, for clear communication and for understanding that some things are just messy and murky and young adults fumbling their way through a new found sexual freedom might feel guilt or shame that is not properly laid at the feet of their alleged abuser.
That’s why I tried to explain this father in the gym that he needs to have a very different conversation with his son about sex than what his son was going to hear at college. He needs to hear that it could be far more dangerous than just a pregnancy or a sexually transmitted disease — it could destroy his career and life.
We need to have more conversations about how to establish relationships, how to let them grow and evolve and we need to have a more enlightened view of the way that humans actually relate; but until then, parents need to be talking to their college age children about sex in a proactive and preventative way.
David Pisarra is a Los Angeles divorce and child custody lawyer specializing in father’s and men’s rights with the Santa Monica firm of Pisarra & Grist. He welcomes your questions and comments. He can be reached at email@example.com or 310-664-9969. Follow him on Twitter @davidpisarra.