San Francisco’s top prosecutor peddles false information about state rape law to students

San Francisco District Attorney George Gascon appears to be unfamiliar with California rape law.

His office’s Victim Services Division held a training on campus sexual assault last week, which was featured on the local news, part of an effort it started a year ago “to streamline the process for reporting sexual assault.”

A web page promoting his office’s efforts to “Break the Silence and End Sexual Assault on College Campuses” – which embeds Thursday’s ABC 7 report – gives this definition of sexual consent:

Consent is not the absence of a “no:” it is a confirmed “yes.” It means that every individual involved actively wants to participate in the physical or sexual act that is happening and has communicated consent. People who are drunk, high, or asleep cannot give consent.

That’s not actually state law on consent, which does not require a “no” or a confirmed “yes” and is more specific about the level of intoxication that negates perceived consent:

(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.

MORE: Students taught to say ‘yes’ every 10 minutes or it’s rape

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred. …

Neither "confirmed" nor "yes" in CA code for rape. Does @SFDAOffice not know its own state's law? pic.twitter.com/tsrcPy6KPi

— KC Johnson (@kcjohnson9) August 8, 2016

The undated web page, which is classified under “Initiatives” but not actually linked from the Initiatives section of Gascon’s site, also lists several statistics with no attribution, including that one in four women have been “sexually assaulted while in college” and

63% of college men whose self-reported acts constituted rape or attempted rape admitted to committing multiple offenses, averaging six rapes each.

MORE: Legal Chaos Predicted Under ‘Affirmative Consent’ Bill

It’s not clear how Gascon’s office has been publicizing the “Break the Silence” page – its only public communication about it recently was a retweet.

Break the Silence and End Sexual Assault on College Campuses @SFDAOffice training https://t.co/Y0qOYXEqyF

— Dr. Lisa De La Rue (@delaruelisa) August 4, 2016

SFDA Victim Services’ Facebook page also doesn’t mention the page, though it includes two photos from Thursday’s training session.

According to ABC 7, Thursday’s training focused on “the red zone,” which refers to a six-week period at the start of the school year when colleges see a glut of sexual-assault reports from freshmen and sophomores:

“There’s a lot of excitement, a lot of your people are out on their own for the first time, living on their own, making their own decisions, in change of their own safety and unfortunately, that puts them at risk,” [Gina] Castro-Rodriguez [of the San Francisco Victims Services Unit] said.

California does have an affirmative-consent law that ties a college’s continued acceptance of state-funded student aid to its implementation of so-called yes-means-yes policies, which flip the burden of proof for sexual consent onto students who are accused of nonconsensual sex.

MORE: Research finds ‘yes means yes’ doesn’t work in practice

But Gascon’s office would not handle those campus disputes unless alleged student victims at San Francisco colleges file charges with law enforcement, which would open investigations that are subject to the state definition of rape and consent.

For a much more thorough explanation of rape and consent under California law, with myriad examples, see this primer by the Shouse California Law Group.