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Topic focus: California colleges and sex-related affirmative consent

Was there consent?

That is a central and fundamental query asked by criminal investigators in any matter alleging sexual assault, and issues surrounding it can become ambiguous and complex, indeed.

And, of course, an ultimate and definitive determination regarding that question -- as made by a California court or jury -- can have dramatic and life-altering implications for an accuser and a criminal suspect, respectively.

Especially if an evaluation of consent as relates to an allegation of sexual assault is incorrect.

It is always nice -- indeed, it is critically important for notions of justice and fair play -- when objectivity reigns supreme in a criminal investigation and outcome.

Unfortunately, the concept of consent is inherently subjective and can be hard to prove, with "he said, she said' exchanges sometimes leading to a slippery slope of uncertainty that can yield unjust outcomes.

It is certainly interesting to note that California last year became the first state to pass legislation requiring all colleges to craft official policies on sexual assault that set forth a standard on so-called "affirmative consent."

The goal, say proponents, is to bring clarity to what might otherwise be mixed signals between two people regarding sexual activity. Under the law, consent requires some affirmative -- that is, conscious and voluntary -- agreement to engage in sex, even if that consent is not verbalized.

The legislation is far from being universally endorsed. A critic who is quoted in one media article discussing the consent law and its application on California college campuses calls it an "aspirational standard" that will not work in the real world.

Notably, a student who allegedly engages in sexual contact without first taking steps to ensure that a partner has affirmatively consented can be called to account before an authoritative campus body.

Although "the disciplinary stakes are high," notes the above-cited article, there is no automatic transfer of a case to state criminal investigators.

That is not to say, of course, that such a matter won't ever result in a criminal investigation and sexual assault charge. That is a very real possibility.

Given that, coupled with the fact that in many instances consent is a highly unclear and contested matter, an individual accused of sexual assault and contesting that charge might reasonably want to contact a proven criminal defense attorney for advice and aggressive legal representation.

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