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Why Affirmative Consent On Campus is So Challenging

Now that the issue of sexual misconduct and assault on college campuses has moved squarely into the public spotlight, college officials are revamping their sexual misconduct policies and replacing the old norm of “no means no” with a new standard of “yes means yes,” otherwise known as affirmative consent.  

Under these policies, any student who cannot prove that he or she obtained active, ongoing, unambiguous consent at each stage of ongoing sexual activity will automatically be guilty of violating campus policies if accused of sexual misconduct. As you’ll see, this is a standard that’s even higher than the one necessary to prove that a criminal violation has taken place.

What’s driving the increased public attention – and thus the schools’ rush to address this incredibly complicated issue?  It’s the evolving federal guidelines about how universities must handle the response to, and prevention of, sexual assault on campus.[2], the government website devoted to Title IX compliance, recommends that each university specifically define consent for students, including language, for example, that consent cannot be granted by somebody who is incapacitated, that past consent doesn’t imply future consent, and that consent can be withdrawn at any time.  As with almost everything having to do with this topic, the surface meaning of these phrases and their interpretation in a given situation can yield very different conclusions.

So what IS Affirmative Consent?

An estimated 1,500 institutions of higher education now use some type of affirmative consent definition in their sexual assault policies, according to the National Center for Higher Education Risk Management.  New York and California have passed laws that define affirmative consent in the context of campus sexual assault and misconduct as an affirmative, unambiguous and conscious decision by each participant to engage in mutually agreed-upon sexual activity” and this language is fast-becoming the model definition being adopted by many schools across the country. In addition, the consent must be “ongoing” throughout any sexual encounter; silence or lack of resistance does not indicate agreement.

But if “affirmative consent” policies are framed as requiring explicit consent, — and as requiring that such consent be “ongoing throughout a sexual activity” — then those laws really would be, as some critics have charged, so impractical as to be functionally indefensible. Should a couple who has been dating for two years and who have had sexual intercourse hundreds of times really be required to obtain explicit verbal consent before each and every sexual encounter to protect against a possible charge from either partner in the future? Should they be required to obtain a new statement of consent for “each new level of sexual activity,” with the stipulation that body movements and non-verbal responses are not consent?

Like I said: consent, particularly in relationships, is often a complex psychological and emotional dynamic. Is it a state of mind or an act? If it’s the former, is consent the subjective experience of the alleged victim or a reasonable person’s perception under all the circumstances of the incident? If consent is an act, exactly what is required? Affirmative communication? Or just the absence of a veto? And what are its bounds? Does consent the night before imply consent tonight?  Does consenting to a one type of sex act imply consent to another?  The questions don’t stop there. Does a power imbalance negate consent otherwise given? Does voluntary intoxication? And on and on.

Problems with the New Affirmative Consent Standards– Do They Violate Due Process Rights?

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 wryly asks, As things escalate, is he supposed to ask before each of the twenty, thirty, sixty steps? Nobody talks like that, not even lawyers.”

Proponents of affirmative consent say it’s a valuable tool to address sexual misconduct and will help clarify the difference between consensual and coercive sex. Critics say the policy, while well-intentioned, is unenforceable and may even violate civil rights. “No one denies that consent is required for sexual activity, but the problem is when the burden of proof shifts to the accused to prove his or her innocence,” said Samantha Harris, a lawyer with the Foundation for Individual Rights in Education, a Philadelphia-based organization, which opposes the standard. “It’s an overcorrection.”  

What Can You Do?

• Read, read, read: Your school has a code of conduct that explains what’s expected of students. Read that policy! It may be boring, but it’s important to understand the rules.

• Ask, ask, ask: If you have any questions regarding your school’s affirmative consent policy, be sure to ask questions.

• School Meetings: Most colleges and universities are scheduling meetings and other forums to discuss affirmative consent. Be sure to find out when and where they’ll occur and attend.

• Take Your Friends: Don’t let your friends skip out. If there is a meeting to discuss affirmative consent, be sure to bring along your roommates and friends.

• Call a Lawyer: If you’re accused, or expect to be accused, of violating the affirmative consent policy at your school, call an attorney as soon as possible.

If You’ve Been Accused – or Think You May be Accused – of Campus Sexual Misconduct or Assault, Contact Our National Title IX Attorneys

The consequences of being accused by your school can be devastating.  While alleged conduct code violations are always serious and should be handled carefully, the current high-scrutiny environment regarding campus sexual assault means that accused students must be fully prepared to rigorously defend themselves – both on the facts and on the law.  Contact the experienced Title IX campus sexual assault defense attorneys at Duffy Law immediately to discuss your situation.   Call 203-946-2000 today.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.