TIME States

California Passes First-Ever Bill to Define Sexual Consent on College Campuses

Demonstrators protest sexual assault on college campuses at the #YesAllWomen rally in solidarity with those affected by violence in Seattle on May 30, 2014.
Demonstrators protest sexual assault on college campuses at the #YesAllWomen rally in solidarity with those affected by violence in Seattle on May 30, 2014. Alex Garland—Demotix/Corbis

A new definition of sexual consent

Correction: Appended, Sept. 2

The California Senate passed a first-in-the-nation bill Thursday to define what amounts to consensual sexual activity in colleges in the state, a milestone at a time when colleges across the country are under close scrutiny for how they handle campus sexual assault.

The bill will head next to Gov. Jerry Brown’s desk. If enacted, it would make colleges adopt a student conduct policy requiring “affirmative, conscious, and voluntary agreement to engage in sexual activity,” as a condition for state funding. The bill defines consent to sex as the presence of a “yes” rather than the absence of a “no,” a cultural shift that victim’s groups have long advocated. In practice, colleges would be required to use the bill’s definition when they teach students about sexual assault during orientations, and when investigating claims of sexual assault. It would apply any public or private colleges that receive state financial aid funding.

California’s bill comes after more than a year of pressure from the federal government, Congress, and student activists for higher education institutions to do more to prevent the widespread sexual assault occurring on the nation’s campuses. Colleges and universities have been changing their policies for months in response to federal pressure. And after recent changes in the Violence Against Women Act that require colleges to explicitly report their prevention efforts, many colleges will be unveiling new policies and programs this fall where they never existed before.

The so-called “affirmative consent” standard that California’s legislature has introduced in the latest bill is not a new concept. Similar affirmative consent policies already exist at some 800 post-secondary institutions across the country, including the 10 campuses that make up the University of California system. Educators from the University of California collaborated on the bill with its author, State Sen. Kevin de Leon, a Democrat, and the system’s president, Janet Napolitano, has endorsed it. This would be the first time that a state has tried to put such a policy, usually confined to student conduct handbooks, into law.

There is some disagreement in higher education about whether the affirmative consent standard is the best practice. Though many colleges have adopted it, Harvard recently rewrote its sexual assault policy without adopting an affirmative consent standard, to the dismay of women’s advocates. Harvard’s Title IX Officer, Mia Karvonides, said the school rejected such a policy because there is no “standard definition of affirmative consent,” according to the student newspaper The Crimson. Critics of affirmative consent policies often point to an unrealistic set of standards set in 1991 by Antioch University in Ohio, which required verbal consent (excluding “moans”) for “each new level” of sexual activity—a standard that doesn’t reflect the real interactions between human beings during sex.

The California bill stops short of Antioch’s standard.The bill’s language clarifies the definition of consent by stating what it is not. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” it reads. “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.”

The bill’s language does not require verbal consent, said Claire Conlon, a spokeswoman for de Leon, adding that it would allow for “verbal and non-verbal” consent. Conlon said the intent of the bill was to change the way school administrators approach their definition of sexual assault. Instead of asking: “Did she say no?” We are having them ask, did she consent?,” Conlon said. The bill does not require specific punishments for students found in violation of the policy.

Brett Sokolow, a higher education risk management consultant who supports affirmative consent policies and the bill in California, uses a traffic metaphor to describe the kind of behavior these policies are designed to prevent. “You go forward on a green light. You stop on a red light. But most people tend to run the yellows. They tend to increase their speed rather than slowing down to look both ways. Affirmative consent is telling you to slow down at the yellow light. You’ve been able to fondle, pet, kiss, if you assume those lead you to the next behavior without permission, then you are running a yellow light. You are putting your needs to get through the intersection above the needs for others’ safety.” Sokolow said the affirmative consent policy is preventative—it won’t stop predators, but it will coax some male students towards a healthier norm.

Those who oppose the bill are concerned that such a policy, combined with unavoidably murky sexual encounters, will deny college men due process and unfairly categorize them as rapists, causing potentially unfair suspensions and expulsions or reputational damage. Matthew Kaiser, a lawyer in Washington who represents college men accused of sexual assault, said the policy’s broad language could ensnare young men who acted in good faith. Even though the policy isn’t as explicit as Antioch’s, Kaiser sees a similar effect. “When people are having sex,” he said, they “don’t stop and say “can I do this now? It just sort of happens. If someone is sober and awake and not acting upon the other person, that looks like it would be prohibited under this [bill]. That strikes me as problematic, but its not clearly sexual assault. … When you look at the language of the bill, its not clear what counts as sexual assault and what doesn’t. It doesn’t give the school flexibility to be discerning.”

In addition to putting the schools at risk of losing federal funds, Kaiser said, the policy’s enshrinement in student conduct codes would also put schools at risk of breach of contract from a female student if she felt that the male student wasn’t punished adequately.

The notion of consent as part of a rape definition isn’t as controversial as some critics make it sound. In 2012, the federal government changed its definition of rape for the purposes of compiling statistics from “the carnal knowledge of a female, forcibly and against her will” to “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Though the federal change is less specific than the California bill, the spirit of the changes is the same—changing the definition from one rooted in the woman’s refusal to requiring her active consent.

Administrators in California reached by TIME didn’t see the policy as overly broad. Any policy that attempts to design the ground rules in sex is inherently imperfect, they said, but the policies that don’t define consent are even less clear. (Harvard’s new definition for sexual assault, for example, prohibits “unwelcome” contact—an impossibly subjective and equally vague term). Dianne Klein, a spokeswoman for the University of California system, which has already adopted an affirmative consent policy, said it’s actually “a little less gray” than the previous policy that didn’t explicitly define consent.

“It makes it more clear. Is it crystal clear? Is it infallible? No. But that’s just the nature of sexual activity,” she said. No matter how the policy is written, colleges investigating sexual assault will come up against the same challenging he-said, she-said, confusion that any person investigating sex crimes must contend with. This policy at least gives students more information about the college’s expectations. Klein rejects the idea that the pendulum has swung too far in the other direction with this policy. “Both parties don’t have to sign a contract before they unzip their pants” she said.

The bill is also helpful, administrators said, because it brings publicity to the sexual assault issue, making it easier for them to get students to understand why understanding the definition of consent is so important.

“The more people talk about it, the more women feel empowered to speak up when they are in bad situations,” said Jerry Price, the Dean of Students at Chapman University, a private university in Orange, Calif. “If men are predators, the more this is talked about, the more reluctant they are going to be to try to get away with things. All this fanfare is good for what we are trying to accomplish.”

Correction: The original version of this story incorrectly identified Dianne Klein. She is a spokeswoman for the University of California system.

TIME Addiction

E-Cigs Are Smokers’ Favorite Quitting Tool

A patron demonstrates an e-cigarette at Vape store in Chicago, April 23, 2014.
A patron demonstrates an e-cigarette at Vape store in Chicago, April 23, 2014. Nam Y. Huh—AP

"The fact that there isn't industry-wide, definitive proof that e-cigs help all smokers quit for good may be irrelevant to smokers"

Electronic cigarettes are a more popular tool for smokers trying to quit than nicotine gums and patches, according to a new study of consumer behavior from Kantar Media. As e-cigarettes have exploded from niche product to $2 billion-plus industry, big tobacco isn’t the only industry facing disruption. E-cigarettes are shaking up the pharmaceutical business too.

Of the adults who used a product to help them quit smoking in the past 12 months, 57% chose e-cigarettes, compared with 39% who used a prescription drug like Chantix and 39% who used other over-the-counter methods including nicotine gum and patches, according to the study. The study’s results are based on more than 20,000 responses to a questionnaire about health-related behavior mailed to a random sample of about 50,000 American households. The results do not show whether or not e-cigarettes are effective at helping people quit — just that people are trying them.

E-cigarette makers are legally prohibited from making claims that their products can help smokers quit. Among scientists, the question of whether or not e-cigs can really help smokers quit remains unanswered. A highly publicized study of almost 6,000 smokers trying to quit in England, published in the journal Addiction in May, showed that they were more likely to successfully quit if they used e-cigarettes than products like nicotine patches and gum. But the quit rate, while better than other options, was still relatively low — and this was among a group of smokers highly motivated to quit. The health effects of electronic cigarettes are also largely unknown.

But the Kantar Media study results show that right now, for smokers, the science on e-cigs may not matter. “The fact that there isn’t industry-wide, definitive proof that e-cigs help all smokers quit for good may be irrelevant to smokers,” reads Kantar Media’s summary of the findings. And, whether or not the science supports it, e-cigarettes make their users feel better about their health. E-cigarette users are 35% more likely than all adults to say their current health is much or somewhat better than it was a year ago, according to the study. Cigarette smokers were, unsurprisingly, less likely than most adults to think their health had improved. Interestingly, e-cig users were more likely to report feeling healthier than were people using other smoking-cessation methods.

The study also offers a window into the typical e-cigarette consumer. According to the study, almost 6 million adults in the U.S. use e-cigs, compared with the 44 million who use a tobacco or nicotine product (including cigarettes). E-cig users tend to be young and male and have lower household incomes than the national average and are more likely than other adults to play video games and poker, more likely to watch reality TV, and go to bars and nightclubs. E-cig users are also more likely to live in the South. In the region including Alabama, Kentucky, Mississippi and Tennessee, the ratio of electronic-cigarette users to traditional cigarette smokers is nearly 2 to 1, according to the study.

In light of the demographic findings, it maybe isn’t surprising that so many e-cigarette users prefer them to other methods of quitting. For young guys having fun, it’s more fun to “vape” than to do nothing at all.

TIME Companies

This Big Tobacco Merger Would Unite 2 Major E-Cig Brands

A salesman waits for customers as he enjoys an electronic cigarette at a store in Miami, Florida on April 24, 2014.
A salesman waits for customers as he enjoys an electronic cigarette at a store in Miami, Florida on April 24, 2014. Joe Raedle—Getty Images

Two of the three biggest tobacco companies, Reynolds American and Lorillard, sent shockwaves through the financial world Friday when they announced they were in talks about a possible merger. If the deal goes through, Reynolds, the maker of Camel cigarettes, would buy Lorillard, best known for its popular menthol cigarette, Newport.

It’s a complex deal with many factors at play, and there’s always a chance it won’t be completed. But the most surprising thing about the potential deal is that it marks the first time electronic cigarettes were one of the driving factors in merger talks between two tobacco companies.

“This transaction in our view will be very positive for the global tobacco industry and could be the just the beginning of future transactions with e-cigs/vapor being the underlying catalyst,” wrote Wells Fargo analyst Bonnie Herzog of the deal. That’s a pretty big milestone when you consider that the first patent for electronic cigarettes was awarded just a decade ago.

Each of the two companies has an electronic cigarette brand. Lorillard acquired its brand, Blu Ecigs, in April of 2012, and it’s the stronger of the two. With the help of celebrity spokespeople Stephen Dorff and Jenny McCarthy, Blu now has about 40% of the retail market share in the U.S. Reynold’s brand, Vuse, which stands out mostly because of its fancy engineering, has yet to be tested on the national market, having gone on sale nationwide only just last month after a trial period in select markets.

Less competition might be bad for smokers of traditional cigarettes, as it could mean higher prices and fewer options. But the merger, if it happens, could be good for smaller players in the electronic cigarette industry. The e-cig business is still small compared to traditional smokes, at roughly $2 billion in U.S. sales compared to tobacco cigarettes’ approximately $100 billion. The merger talks bring awareness and credibility, says John Weisehan Jr, the CEO of Mistic Electronic cigarettes. And J. Andries Verleur, the chief of VMR Products, the market leader in online sales of e-cigs, adds: “The more aware consumers are of the category, the better we do.”

 

TIME Education

Colleges Are Breaking the Law on Sex Crimes, Report Says

Demonstrators protest sexual assault on college campuses at the #YesAllWomen rally in solidarity with those affected by violence in Seattle on May 30, 2014.
Demonstrators protest sexual assault on college campuses at the #YesAllWomen rally in solidarity with those affected by violence in Seattle on May 30, 2014. Alex Garland—Demotix/Corbis

New survey amid push for congressional action

Many American colleges and universities are bucking federal law in their handling of campus sexual assaults, according to a survey released Wednesday by a top lawmaker on the issue.

Senator Claire McCaskill, a Missouri Democrat, said the results reveal a broad failure by many schools but also offer possible solutions as she and a bipartisan group of lawmakers draft legislation to address the problem. They’re likely to produce a bill around the time students head back to campus this fall.

The survey results come as pressure grows on higher-education institutions to improve their handling of sexual assault from the White House, Department of Education and student advocates. Schools are legally required to address sex crimes and sex harassment under Title IX, a law that prohibits schools that receive public funding from discriminating on the basis of sex. In May, the Department of Education began publicly listing the schools under investigation for violations of Title IX, and the number recently reached 64. The scrutiny has colleges scrambling to improve their policies and procedures.

Colleges and universities are not following even the most basic rules already required of them, according to the survey. Results from the 236 schools that responded to the survey revealed that even though colleges are legally required to have a Title IX coordinator (a staff member responsible for managing the school’s compliance with the laws on sexual harassment and sex crimes), 10% of schools did not. And 41% of schools surveyed had not conducted a single sexual-assault investigation in the past five years.

“That means that they are saying there have been zero incidents of sexual assault on their campuses,” McCaskill said in a call with reporters. “That is hard to believe.”

Schools are required by law to investigate when they know or reasonably should have known about a sex crime on their campus. But more than 21% of “the nation’s largest private institutions” surveyed conducted fewer investigations than they reported to the Department of Education, with some schools reporting as many as seven times the number of incidents of sexual violence than they investigated, which “on its face is violating the black-letter law in this country,” McCaskill said.

Other results revealed a lack of professionalism inherent in the process of handling sex crimes at many of the institutions. Even though most schools, 73%, had no protocol for how to work with the local police, many schools nonetheless had not adequately trained personnel on how to deal with these serious crimes internally. Twenty-one percent of the schools provided no training on sexual-assault response for members of faculty and staff, and 31% provided no training to students. A third of schools failed to provide basic training to the people adjudicating claims, 43% of the nation’s “largest public schools” let students help adjudicate cases, and 22% of institutions gave athletic departments oversight of cases involving athletes — a stat McCaskill called “borderline outrageous.”

The lack of police involvement combined with the institutions’ broad-based failure to handle these crimes adequately, means there is little deterrent for perpetrators on campus.

“We will ultimately have a system that is more of a deterrent than we have now,” McCaskill said. “The folks preying on college students — they have little to no fear of serious consequences.”

TIME E-Cigarettes

Snuff and E-Cigs Are Not Harmless, Say Scientists

New research casts doubt on nicotine's safety—even if you aren't smoking

New research from the American Heart Association journal Circulation shows that patients who stopped using smokeless tobacco after a heart attack had improved life expectancy—similar to that of people who quit smoking. The finding offers new information about the dangers of smokeless tobacco, the risks of which are not as well understood as cigarettes’.

“That was a big surprise for us,” said Dr. Gabriel Arefalk, lead researcher and a cardiologist at Uppsala University Hospital in Uppsala, Sweden. “For smoking, it has been known for decades now that people benefit from discontinuation, especially after having suffered a heart attack, but for snus we had no idea what to expect.”

The researchers reviewed data on 2,474 heart attack survivors under 75 in Sweden who used snus (oral snuff) from 2005 to 2009. About 675 quit. During the two years of follow-up, 69 of those who continued using snus died, compared with only 14 quitters. Based on this data, researchers determined that those who quit snus had almost half the mortality risk of those who didn’t quit, which is similar to the benefit of smoking cessation, according to a release from the American Heart Association

Dr. Arefalk, who is also a clinician, said the researchers wanted to study the problem because they didn’t know what to tell patients about the risks of using snus after a heart attack. He cautioned that the study was small and far from enough to determine a causal relationship, but added “It’s the best evidence we’ve got so far, so from our perspective at our clinic, [the advice to patients] is probably that you should discontinue all kinds of tobacco,” if you’ve had a heart attack, Dr. Arefalk told TIME.

The study is one more piece of evidence that ads to our understanding that smokeless tobacco carries its own risk. Though the study was about snus, it has implications for other kinds of nicotine delivery systems, including e-cigarettes.

The FDA is currently taking comment from experts over the next few weeks as the agency tries to determine the best rules to regulate the nascent e-cig industry, which is approaching nearly $2 billion in U.S. annual sales. And though there isn’t yet enough information or scientific research to back this up, common sense says that e-cigs, which do not burn and contain fewer chemicals than regular tobacco cigarettes, must be better for a smoker’s health. Yet, some cardiologists, as TIME learned, are reluctant to see electronic cigarettes as harm-reduction tools.

For starters, nicotine is not a benign substance, especially when it comes to cardiovascular health. As Dr. Steven Nissen, Department Chair of Cardiovascular Medicine at the Cleveland Clinic, put it, nicotine has “profound effects on the heart.” The highly addictive drug can lead to surges in heart rate, constriction in the blood vessels, and spikes in blood pressure—the very effects that heart medications are designed to counteract.

“To come up with new diabolically clever way to addict Americans to nicotine is a terrible idea,” says Dr. Nissen. “[E-cigarette companies] are pitching very hard that they can make smoking safer. [But] nicotine is an addictive drug, no matter if you smoke it or ‘aerosolize’ it. Why you would want to addict another generation to nicotine is beyond me. Public health suggests we should fight electronic cigarettes the same way we fought tobacco.”

Another concern, beyond the possible impact of nicotine, are concerns about small, potentially toxic, particles and what they can do to the sensitive cardiovascular system, says Dr. Aruni Bhatnagar, a professor of medicine at the University of Louisville and spokesperson on electronic cigarettes for the American Heart Association.

Dr. Bhatnagar is studying the toxic effects of e-cig vapor on mice. Like all doctors, he is careful to point out that we don’t know enough about these devices. But he says that wishful thinking about harm reduction could be especially problematic when it comes to cardiovascular health. The risk of cardiovascular disease for a person who smokes only 2-3 cigarettes a day is already 80 percent of the risk to a pack-a-day smoke. “Very low levels of smoke are very dangerous for cardiovascular tissues. Cancer is more linear—you have to smoke a large amount for a very long period of time to get lung cancer,” he says. “But reducing harmful levels is not going to mitigate the cardiovascular risk. That is why we are greatly concerned about e-cigarettes when it comes to the high sensitivity of cardiovascular tissues to a low level of these pollutants.”

Electronic cigarette manufacturers and their customers often point to the low levels of particles in electronic cigarette smoke as compared to the appropriate levels of air pollution determined by agencies like OSHA. But, Dr. Bhatnagar says, these claims can be misleading because the thresholds take into account the necessity of polluting the air to some degree—they aren’t an endorsement of a safe level of pollution. From a cardiovascular perspective, he says: “There is no threshold, there is no level of these particles that you can say is safe.”

For now: Smokers—and snuffers, and e-cig smokers—beware.

TIME Sexual Assault

Why Victims of Rape in College Don’t Report to the Police

Demonstrators protest sexual assault on college campuses at the #YesAllWomen rally in solidarity with those affected by violence in Seattle on May 30, 2014.
Demonstrators protest sexual assault on college campuses at the #YesAllWomen rally in solidarity with those affected by violence in Seattle on May 30, 2014. Alex Garland—Demotix/Corbis

Senator Claire McCaskill hosts a round table to address how and when law enforcement should be brought into campus sexual assault cases

The frustration in the room was palpable on Capitol Hill on Monday afternoon where a group sexual assault victim advocates and law enforcement experts in sex crimes met to talk about how the police and college administrators could better together to handle campus sexual assault.

The group had assembled for a roundtable hosted by Senator Claire McCaskill (D-Missouri), one of a team of three senators working to draft legislation that would address growing concerns about campus safety. As TIME wrote in a recent cover story, criticism of how college campuses have dealt with sexual assault has risen this year with accusations that officials have been sweeping the problem under the rug. But the tension over universities’ mishandling of these issues begs the question of why college administrators are expected to deal with these cases in the first place. A passive observer might wonder, shouldn’t these serious crimes be dealt with by the police? The answer, it turns out, is that administrators and police will have to work together to address the problem.

Yet the difficulty of building more effective partnerships became clear as the conversation unfolded at the round table today. Victim advocates articulated fears about anything that would make the relationship between law enforcement and the schools overly formal. For the advocates, doing right by the victim often means respecting her or his wishes not to report the crime to the police and even telling the victim about the possible downsides of the criminal justice system– which can lead to a months-long process that might threaten a victim’s confidentiality. In response, law enforcement officers explained how difficult it can be to pursue criminal action when they don’t collect evidence from the victim early in the process, making it difficult for them to get repeat offenders off the streets.

The question of when and how to involve the police in campus sexual assault is a salient one for administrators and politicians as they work together to overhaul the system of reporting and preventing these incidents. Alexandra Brodsky, a student at Yale law school and an organizer at Know Your IX, a grassroots organization that educates sexual assault survivors about their civil rights in the college setting, illustrated the tension beautifully during the discussion when she said: “When I reported violence to my school, I was told not to go to police. But I never would have told [the school] if I knew I was going to be forced into that option.”

If colleges are going to do a better job of handling sexual assault, college administrators are going to have to work together with police chiefs. But that collaboration is difficult, particularly because victims (especially those in college), are reluctant to report their assaults to the police.

In a 2007 study funded by the U.S. Department of Justice that surveyed 5,446 undergraduate women and 1,375 undergraduate men at two large public universities in the South and the Midwest, just 2% of sexual assault victims incapacitated by drugs or alcohol and just 13% of “physically forced” victims reported the crimes to law enforcement (that’s why increased reporting at colleges is, counter-intuitively, a good sign).

So, why don’t victims go to the police? Every victim is different, but there are a few common themes that ran through the testimony at the hearing and through conversations with experts in the field.

1. They don’t want anyone to know. In the round table, confidentiality was the most often sighted goal of both victim’s advocates and police officers and prosecutors who work most closely with victims. Survey data backs them up. Contrary to Washington Post columnist George Will’s bizarre theory that reporting sexual assault could confer a “coveted status” for victims, research shows that college victims don’t report sexual assault to the police because they don’t want anyone to know. In the 2007 study, 42% of the “physically forced” victims who did not report the incident to the police said it was because they “did not want anyone to know.” Nearly half of the victims gave the same answer in an earlier survey (also funded by the National Institute of Justice) that randomly surveyed 4, 446 women attending two or four year colleges during 1997.

Victims, especially those in college, know that reporting rape comes with a social risk, especially when the perpetrator is someone they know. At a small or midsize college, the rapist is likely to be part of the victim’s social circle. “I’ve seen this in every single case. The victim lose friends or becomes a social pariah. If you report on a really small campus, its really difficult to re-integrate after you report,” says Bruno.

Interestingly, even as the attitude towards victims has improved over the last several years in the broader culture and by police, self-blame and shame has persisted among victims, leaving them just as unwilling to come forward. Years ago, says Scott Berkowitz, the founder and president of the Rape Abuse & Incest National Network (RAINN), the most common reason victims gave for not reporting was: “‘I think I won’t be believed. I think I will be blamed.’ We hear that less often. Now it is much more common to hear: ‘I want to keep this private. I don’t want people to know. I’m embarrassed.'”

2. They don’t understand what constitutes rape. The 2007 survey showed that just over 35% of victims said that they didn’t report to law enforcement because it was “unclear that it was a crime or that harm was intended” (44% gave that same answer in the earlier 1990’s study).

The victims’ confusion does not mean that all of these crimes fell somewhere in the gray. More likely, their confusion reflects shame, denial, and internalized misconceptions that rape is always perpetrated by a stranger and involves physical violence, when often, rape happens between acquaintances and involves alcohol, threats, or other kinds of coercion.”Victims don’t often identify it as a crime because they know the person, they trusted the person, sense of denial or disbelief that it happened,”says Colby Bruno, Senior Legal Counsel at the Victim Rights Law Center, who represents victims of sexual violence in civil matters, with particular expertise in representing college students.

3. They are afraid the police won’t believe them. In the more recent 2007 study, 21% of physically forced victims and 12% of incapacitated victims did not report because they didn’t think the police would take the crime seriously and 13% of forced victims and 24% of incapacitated victims feared the police would treat them poorly. Victims have also reported that their colleges discouraged them from reporting.

Victims aren’t wrong in their perception. According to research funded by the U.S. Department of Justice, only 18% of reported rapes result in a conviction.

4. They don’t know how much control they will have after they report to the police. Victims are afraid of going through a public rape trial because of how awful it can be for the victim. Media portrayals of rape trials show how often they are about the victim’s character and credibility. Given the low rate of conviction, victim’s naturally decide it isn’t worth the risk. Unfortunately, there is wide discrepancy between how prosecutors and police officers in various jurisdictions handle sex crimes. Some will give broad power and control to the victim, while others may pursue the case against the victim’s wishes. Predicting those outcomes are difficult for victims and the advocates who advise them (a theme reflected in today’s round table). According to Carrie Hull, a detective with the Ashland Police Department in Ashland Oregon who attended the round table, said reporting was up 106% from 2010 to 2013 after the implemented a program called “You Have Options,” designed to decrease barriers in reporting, which gives women three options when reporting to police – to give information only, to trigger a partial investigation, or to trigger a complete investigation that will be referred to the prosecutor.

Bruno says that prosecutors are more likely than they were a few years ago to follow the victim’s wishes to drop a case. Still, it is impossible to predict the outcome, and victims are rightly scared by what they know of the system.

As I’ve reported before, rapists are very often repeat offenders. The best way to ensure that more victims report is to continue to create flexibility in the system for victims and change the wider culture so that victims will feel supported. Being the victim of rape will never reach George Will’s imagined “coveted status,” but at the very least, we have to work together to ensure it’s not a shameful one.

Read more on how campuses should handle sexual assault.

TIME

Electronic Cigarette Executives Get Schooled in Senate Hearing

A patron demonstrates an e-cigarette at Vape store in Chicago, April 23, 2014.
A patron demonstrates an e-cigarette at Vape store in Chicago, April 23, 2014. Nam Y. Huh—AP

"I think we have seen this movie before," Senator Richard Blumenthal said. "It is called big nicotine comes to children near you and you are using the same kinds of tactics and promotions and ads that were used by big tobacco and proved so effective"

In a hearing Wednesday afternoon that harkened back to the famous congressional Big Tobacco hearings two decades ago, Senators on the Commerce, Science and Transportation Committee eviscerated electronic cigarette executives Jason Healy, CEO of blue eCigs (owned by tobacco company Lorillard), and Craig Weiss, CEO of NJOY, leaders of the two leading e-cig brands.

The hearing was on the marketing practices by the electronic cigarette industry, which the Senators said appeals directly to kids, a lift straight from the tobacco industry’s playbook, when it began in the 1950s to try and hook young people early to addictive nicotine. Though nicotine is not the carcinogenic ingredient in tobacco cigarettes, it is the culprit behind why so many continue to smoke, and it’s hardly a benign substance either. Nicotine is highly toxic on its own, and there has recently been an increase in calls to poison control centers after contact with electronic cigarette liquid containing nicotine. Nor is the substance good for the developing teen brain.

The Senators and those offering testimony at the hearing, which included electronic cigarette executives and representatives from public health organizations, were in agreement that electronic cigarettes should not be sold to kids under the age of 18. At issue was whether the marketing practices employed by electronic cigarette makers, which are currently unregulated by the federal government, were designed to appeal to kids.

At the hearing, the e-cigarette executives were skewered by the Senators who had the facts on their side. A recent CDC report showed that the use of electronic cigarettes by middle school and high school students doubled from 2011 to 2012. The same survey showed that more than 1.78 million middle and high school students nationwide have tried electronic cigarettes. A recent American Legacy Foundation report found that last year 14 million kids saw ads for electronic cigarettes on TV, 9.5 million saw them in print.

A study from RTI International and the Florida Department of Public Health published in the Journal of Pediatrics showed that exposure to electronic cigarette advertising jumped 256% from 2011 to 2013 among adolescents aged 12 to 17. Mr. Healy’s company, blu eCigs was found responsible for almost 82% of the ads that reached that age group.

Slumped in their chairs, the beleaguered executives, Mr. Weiss and Mr. Healy, argued that their marketing was not directed at kids, but adults. Electronic cigarettes, both men argued, are designed to entice those who already smoke to use the product, claiming they are a valuable public health tool to help wean the 40 million adult smokers off of deadly cigarettes. “It is our corporate mission to [make] obsolete the combustion cigarette,” Weiss testified.

“Every time I use an e-cigarette instead of a combustible cigarette, that’s a good decision,” said Mr. Healy, a smoker who “vapes” (inhales through the e-cigarette vaporizer).

Healy and Weiss aren’t wrong that electronic cigarettes hold promise to improve the nation’s well-being if they can get America’s smokers off of combustible cigarettes–a view held by many in public health. Scientific research has not yet determined how or whether electronic cigarettes can really get people to quit smoking, but it is a technology we should embrace to see if it can. As Mitch Zeller, head of the FDA’s Center for Tobacco Control has said: “We have to have an open mind on the potential for these emerging technologies to benefit public health.”

But Senators including Richard Blumenthal (D-Connecticut) and Amy Klobuchar (D-Minnesota), both former prosecutors, undermined those health promotion claims during cross-examination, calling into question the brands’ use of celebrities, social media, free cigarettes, and TV and print advertisements in major television markets (NJOY advertised during the Super Bowl), and flavors that appeal to kids.

“The only difference between your testimony today and testimony of the tobacco executives is that you are not under oath,” said Senator Blumenthal. “I find in your testimony a sense of denial that I cannot credibly accept because it is defied by the numbers. 18 million teens were exposed to blu’s print TV ads in 6 months and NJOY’s ads reached 3 million teens [these statistics come from the American Legacy Foundation report]. There is a legal principle that people are responsible for the natural and logical effects of what you do, and you know that you are reaching children.”

“I think we have seen this movie before,” he continued. “It is called big nicotine comes to children near you and you are using the same kinds of tactics and promotions and ads that were used by big tobacco and proved so effective.”

Holding up a picture of Robert Pattinson, the star of the popular Twilight films, vaping an NJOY, Blumenthal asked Weiss, “Do you deny he is designed to appeal to teens?”

“He’s a 28 year old adult smoker,” Weiss replied. “Are you saying if they are older than 18, they have no impact on people under 18?”

“Our target is to reach adult smokers,” said Weiss.

Senator Klobuchar took over the same line of questioning. “Have you gone to the Twilight movies, Mr. Weiss? I’ve been to those movies with my daughter, who is 16, and I can tell you, in those theaters, the people in there are kids…[Pattinson] is an adult smoker that appears in movies that appeal to kids. That’s what matters to me.”

Klobuchar continued, “I’ve got to tell you that most people over fifty are not going to know Robert Pattinson. Justin Bieber is over 18, someone put him out there, I don’t think anyone is going to think [he is being] marketed to adults. This is my exhibit D, that heavy duty marketing [efforts] go on to youth.”

Another tense moment occurred between Senator Barbara Boxer from California, who grilled Weiss and Healy about flavored e-cigarettes.

Weiss and Healy both contended that having different flavors available appeals to adults, too. Some Senators referred to a website sponsored by blu’s parent company, Lorillard, stating that flavors like “cherry” and “vanilla” make children vulnerable to electronic cigarettes. Healy responded that the average age of a consumer using blu’s cherry flavor is in the high 40s. The average overall consumer of blu eCigs is 51, said Healy.

Responding to questions from Senator Boxer (D-California) about the flavors NJOY plans to introduce, Weiss made a slip, saying “for adults, we have single malt scotch.”

“Adult flavors?” said Boxer. “As opposed to those for children.” Weiss continued nervously, attempting to remember the new flavors off the top of his head: “In addition, there’s vanilla bean, there’s also peach tea, there’s also, um…”

At the end of her time to question, Boxer said: “Mr. Healy and Mr. Weiss, you can con yourself. But we don’t know if this product gets people off cigarettes yet, so don’t think you are doing some great mission. Don’t say you care about kids,” said Senator Boxer. “Don’t be a part of this, because you’ll regret it.”

But the harshest words came from Senator Jay Rockefeller (D- West Virginia), who said to the executives: “I’m ashamed of you. I don’t know how you go to sleep at night. I don’t know what gets you to work in the morning except the color green of dollars. You are what is wrong with this country.”

TIME E-Cigarettes

Industry Is Winning the E-Cig Regulation Battle

An e-cigarette on March 05, 2013 in Paris.
An e-cigarette in Paris. Europe is moving faster than the U.S. to regulate. Kenzo Tribouillard—AFP/Getty Images

Correction appended: June 12, 2014

It’s a critical time for the e-cigarette industry. In April, the FDA announced proposed rules to regulate e-cigarettes as tobacco products. The announcement kicked off a period of public comment so that e-cig makers and public health experts can raise concerns and give the FDA the necessary facts to write an appropriate set of final rules. Regulation is just like writing the rules of a new game—on one side there are businesses vying for industry-friendly regs, and on the other are public health advocates.

So far, it looks like the businesses are winning. When the FDA first announced the start of the rule-making process, Time wrote about the positive reaction to them by e-cigarette executives, who saw them as a reasonable first step that would not greatly interfere with their businesses. Now, a few weeks into the rule-making process, business continues to be optimistic while public health advocates are getting worried.

“The deeming rule that the FDA has proposed is very, very, very limited in its scope,” says Stanton Glantz, a cardiology professor at the University of San Fransisco and one of the most vociferous proponents of strict rules for e-cigs. “It requires a useless warning label and says they can’t be sold to kids under 18, but it doesn’t put any restrictions on internet sales, which means kids under 18 can easily get them. It has no restrictions on marketing at all.” This puzzles Glantz. “You would think that the Obama administration would be supporting tobacco control because it would reduce health care costs.” As far as Glantz is concerned, the administration has erred on the side of the tobacco interests.

Naturally, one of the biggest concerns among health advocates is children’s access to e-cigarettes—and marketing of e-cigs to teens is up 321%, as TIME recently reported. The Centers for Disease Control and Prevention estimates that almost 2 million students in the U.S. have tried e-cigarettes. Policies to address the issue run the gambit from the least controversial—like establishing an age restriction on purchasing e-cigs and child proof packaging—to the more divisive, like prohibiting marketing to teens, prohibiting internet sales, and restricting the use of kid-friendly candy-like flavors.

But even the most basic restrictions—like better product labeling, and child proofing—were absent from the FDA’s initial deeming rules, making other restrictions on advocates’ wish lists seem that much further away. “Any meaningful rules on marketing of e-cigarettes are years, and years, and years away,” says Glanz, pointing out that if restrictions were imposed, e-cog companies would likely sue over marketing restrictions on first amendment grounds.

Craig Weiss, the CEO of NJOY in Scottsdale, Arizona, one of the leading electronic cigarette brands, also thinks the FDA rules will stay fairly restrained. “The FDA are smart people,” he says. “They have to read everything and they will, but I think what you saw in the proposed regulations, that’s what you are going to see in the ultimate regulations as well.”

As for whether any child-marketing restrictions would make sense down the line, Weiss says there are appropriate curbs, but there is no reason e-cigarette marketing should be as strict as tobacco. “You are confusing the arsonist with the firefighter,” he says. “Why would you treat products that are part of the solution as products that are part of the problem?” he says. Though NJOY is careful not to make direct claims that their products can help smokers quit, Weiss is a big believer in the potential for electronic cigarettes to replace cigarettes. Weiss supports limits on the age of actors in ads and rules against e-cigs appearing in cartoons, but he rejects the idea that there is anything wrong with his ads, which do feature young adults.

That’s not good enough for public health advocates. “The best way to market to kids is to market to young adults,” says Glantz, “If you designed marketing to stop smoking in a 50 year old, it could be done. That’s not what they are doing. It wouldn’t be on MTV, it would be on evening news.”

Weiss responds: “I’m interested in converting every adult smoker in the country to these products. I think it would be a tragedy for smokers to be smokers for decades before we advertise in a way that is appealing to them.”

The battle over e-cig regulation isn’t settled, but if what’s going on now is any indication, that battle may have actually been over—and won by industry—before it even started.
Correction appended: The original version of this story incorrectly described which restrictions are absent from the FDA’s initial deeming rules.

TIME

Here’s the Real Reason College Sex Assault Reports are Rising

It may actually be a sign of progress

+ READ ARTICLE

It would seem an odd cause for optimism: the number of sex crimes reported by colleges rose 52 percent between 2001 and 2011, according to a government report released on Tuesday, even as overall crime on campuses dropped.

Yet to many counselors and administrators, the increase is a sign that schools are getting better at handling sexual assault, a problem Time highlighted in a recent cover story. It sounds counterintuitive, but here’s why:

For a number of reasons — institutional resistance, lack of understanding, victims’ own fears — colleges have historically under-reported sex crimes on campus. The substantial jump in reports — from 2,200 to 3,300 over a decade — doesn’t necessarily mean that more sexual assaults occurred as much as it shows that colleges are getting better at acknowledging the ones that have always taken place. This is likely the result of a number of factors: schools becoming better educated about defining sexual assault and more transparent about disclosing when it happens, and victims feeling increasingly empowered to come forward because of these changes.

The Obama administration has made preventing campus sexual assault a priority, appointing a White House advisor on violence against woman, ramping up investigations into colleges’ alleged mishandling of sexual assaults, and threatening to withdraw federal funding from schools that fail to adequately address sexual violence. According to the new data, the increase in reported incidents was particularly high in 2010 and 2011, rising by 15% both years, which could be an indication that the administration’s efforts are having an effect.

There’s another development reflected in the data that shows how our understanding of what constitutes rape is evolving. While more “forcible” sexual offenses were reported between 2001 to 2011, there was a whopping 90% decline in “non forcible” sexual offenses, from 461 in 2001 to 45 in 2011. It’s not a stretch to infer that some of the rise in “forcible” offenses is because colleges stopped classifying so many assaults as “non forcible.”

Misconceptions about rape and sexual assault lead some college administrators to mistakenly believe that sexual assaults between intimate partners or involving a victim incapacitated by alcohol don’t count as “forcible” sexual assault. The change in reporting patterns likely reflects a reeducation of college administrators on the appropriate definitions of force, says W. Scott Lewis, a lawyer at the NCHERM group, a firm focused on safety and risk management in higher education. “They are now starting to realize that force also includes rendering someone incapacitated, coercion, and intimidation,” Lewis says. “If I take you out and watch you take shot after shot while I drink one glass of wine, there’s an element of force–using the alcohol instead of a knife.”

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