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How Affirmative Consent Laws Criminalize Everyone


This year, nearly all college students in New York and California started their spring semesters under a new state-mandated regime of sexual policing called affirmative consent (“yes means yes”). Under these policies, any student who cannot prove that he obtained active, ongoing, unambiguous consent to any sexual activity will automatically be guilty of violating campus sexual assault policies. These draconian new rules are binding only on college students. They do not apply to college faculties and administrators, and they certainly don’t apply to the legislators who passed these laws.

Affirmative consent laws trivialize sexual assault by turning nearly everyone who has ever dated into a sexual offender. For example, if a student throws her arms around her boyfriend and kisses him without his permission, even if she has done this dozens of times before, she has violated affirmative consent policies. She can, at some later date, be hauled before a campus judiciary on charges of sexual assault. Victims of sexual assault should fear this new regime, because it will inevitably confuse rightful cases of abuse with capricious accusations.

Journalist Cathy Young writes, “One would think that [our] legislators would have some second thoughts about endorsing a bill that essentially redefines some 95 percent of human sexual encounters as rape (including married sex, since the bill specifically states that a prior relationship creates no presumption of consent).” In an anonymous letter to The Atlantic Monthly, a recent college graduate realized how “out of touch with reality” affirmative consent is when his first college girlfriend threw her hands up in disgust and asked, “How am I supposed to get turned on when you keep asking for permission for everything like a little boy?”

Law school professors have been at the forefront of criticizing the way affirmative consent rules violate basic principles of due process and fair procedure. Yale Law School Professor Jed Rubenfeld wrote that “people can and frequently do have fully voluntary sex without communicating unambiguously; under the new consent standards, that can be deemed rape if one party later feels aggrieved.” George Washington University’s  John Banzhaf writes, “As things escalate, is he supposed to ask before each of the twenty, thirty, sixty steps? Nobody talks like that, not even lawyers.” George Mason’s David Bernstein writes “There is one type of sexual relationship that . . . involves primarily explicit consent–the relationship between a prostitute and her (or his) clients, with exact sexual services to be provided determined by explicit agreement in advance.”

Affirmative Consent Allows for Selective Prosecution

legal complaint  a student at Wesleyan University file on November 20, 2014 dramatizes how campus activists can use expansive definitions of sexual misconduct to squelch free speech and freedom of association. In April 2014, John (pseud.), a fraternity member with a 3.9 average and an unblemished disciplinary record, argued vigorously against a proposal championed by a fellow student, Jane (pseud.), to eradicate all-male residential fraternities from Wesleyan’s campus. John and Jane had been friends since sophomore year, and in December 14, 2013, they had exchanged text messages in which John asked Jane to hook up. The next morning, John apologized for the messages, and Jane texted back, “we all do dumb shit when we’re drunk, we can definitely put it behind us.”

Wesleyan officials prohibited John from calling witnesses or having legal counsel. John had to write his account of the four-year-old kissing incident without knowing the charges against him.

The week before the vote on the future of Wesleyan’s fraternities, Wesleyan’s dean of students, Rick Culliton, told John that the text messages John sent to Jane in December were a form of “sexual harassment,” and he gave John a “no-contact” order. Culliton’s colleague, Scott Baker, assured John that because the texts were an isolated occurrence, they would not constitute “a serious Title IX concern.”

Unfortunately, it was indeed a serious concern. John was immediately banned from student government meetings, and the proposal to abolish all-male fraternities passed by a 14-12 vote in his absence. In May, a friend of Jane’s accused John of kissing her without her consent in September 2010, during the first week of John’s freshmen year. Campus adjudicators rejected as irrelevant the fact that John’s accuser had attended a formal dance with him as his date months after the alleged kissing incident.

At disciplinary hearings held in May, Wesleyan officials prohibited John from calling witnesses or having legal counsel. John had to write his account of the four-year-old kissing incident without knowing the charges against him. John was found guilty of violating Wesleyan’s sexual harassment and assault policies. He was suspended for two semesters, weeks before he was supposed to get his diploma. One month later, John was fired from his job as a congressional staffer after his employer learned of his disciplinary record.  “I cannot believe [Wesleyan made] me a symbol of fraternity power and rape culture for kissing,” John said in an interview with BuzzFeed’s Katie Baker.

When asked how an innocent student could prove affirmative consent under the statute, Democratic assemblywoman Bonnie Lowenthal said, ‘Your guess is as good as mine.’

Even proponents of these laws admit that they establish a presumption of guilt and strip the accused of due process protections. When asked how an innocent student could prove affirmative consent under the statute, Democratic assemblywoman Bonnie Lowenthal said, “Your guess is as good as mine.” Ezra Klein, editor-in-chief of Voxadmits that under affirmative consent “too much counts as sexual assault” and that innocent students will be branded as rapists. Yet he supports it anyway because “men need to feel a cold spike of fear.” New York’s Jonathan Chait calls Klein’s strategy of false convictions to strike fear into the innocent “a conception of justice totally removed from the liberal tradition.”

Legislators who rescind due process protections in response to a moral panic seriously impair liberal education. Today, colleges and universities remain the only places in America that ban the procedural protections against arbitrary abuse of power that any just society should provide its members. When such violations of due process occur in a workplace or government agency, they are in opposition to established procedures and engulf the institution in scandal. A free society depends upon the willingness of its educational institutions to train future generations to respect due process and the rule of law. Colleges and universities that govern by raw power and run roughshod over the rights of their students harm all of us by forming passive, cowering graduates unprepared for democratic self-governance.

Invite Police to Oversee Sexual Assault Cases

College disciplinary boards have an abysmal record of handling sexual assault cases.  They have a history of expelling innocent students and stigmatizing them for life as sex offenders in hearings that lack any semblance of due process. When they correctly identify sexual predators, the harshest sentence they can deliver is expulsion from campus, which does a terrible injustice to both the victims of sexual assault and the wider community.

Shuffling predators from community to community rather than criminally prosecuting them allows them to continue preying on new victims.

Forensic consultant David Lisak estimates that 3 percent of college men are responsible for more than 90 percent of rapes. These men find colleges to be ideal hunting grounds. They are particularly likely to victimize intoxicated first-year women, and they are repeat offenders, averaging six assaults each. Shuffling predators from community to community rather than criminally prosecuting them allows them to continue preying on new victims. Jesse Matthews, who was arrested in November 2014 for abducting Hannah Graham, was charged with sexual assault in two campus disciplinary procedures never reported to the police. As Reason magazine’s Robby Soave asks, “Do the bureaucrats at the Department of Education—who are now mandating that universities [expel] rapists—really sleep any better at night with the knowledge that they have made it more difficult for violent criminals to earn degrees?”

Because college rape tribunals have become substitutes for criminal prosecutions, only 20 percent of college women ever report rapes to the police, a much lower rate than that of the general population (32 percent). Ironically, campus tribunals enable campus rapists by shielding them from the criminal justice system. But, as Rubenfeld argues, colleges can’t just send students to the police. They must develop systems that integrate college hearings processes with law enforcement.

If a student makes a formal complaint of sexual assault at her school, the school should provide her with an advocate to help her navigate the criminal justice system and to make sure she is treated properly. Meanwhile, sexual assault hearings should be conducted by law enforcement officials with training in forensics and the ability to subpoena witnesses. This would place the responsibility for investigating violent crimes in the hands of competent professionals. It would also give police valuable information on dangerous predators in their communities.

An integration of campus tribunals with law enforcement would make colleges healthier places for both men and women. Such a system would protect men from false and frivolous accusations of assault, and it would make our communities safer for women. Perhaps most significantly, “sexual assault” would have the same meaning on campus as it does off campus and in courts of law. This would deter our college administrators and legislators from trivializing violence against women through vague, protean definitions of assault that conflate failed romances and social gaffes with violent sexual offenses.

Some of the material in this article was published on on February 3, 2015.