The Connecticut State Capitol in Hartford.
On June 1, Connecticut Governor Dannel P. Malloy signed into law HB 5376, a bill to require “affirmative consent” as the new standard on all Connecticut college campuses when investigating and adjudicating allegations of sexual assault. Connecticut is now the third state in the country, following California and New York, to require that students be able to prove that they obtained affirmative consent prior to engaging in sexual activity.
Sexual assault on campus is a pressing problem that has captured the attention of students, professors, administrators, parents, and lawmakers. A comprehensive approach that is fair to all is needed to make sure that students’ worst fears revolve around failing an exam—not being a victim of a devastating violent crime.
Many have come to believe that the solution to stopping sexual assault is to focus on definitions of consent. With few exceptions, such as statutory rape, if both parties consent to a sexual act, then the law sees no problem. And at first glance, HB 5376 seems harmless—of course there should be consent between individuals to engage in sexual activity. Like most legislation, the devil is hidden in the details; HB 5376 is no exception.
First and foremost, the move to affirmative consent effectively and unfairly shifts the burden of proof from the complainant to the accused, as FIRE and others have previously explained at length, and as at least one court has ruled.
Second, there is a serious definitional problem here. HB 5376 states that “affirmative consent may be revoked at any time during the sexual activity by any person engaged in the sexual activity.” The bill goes on to say that “it is the responsibility of each person to ensure that he or she has the affirmative consent of all persons engaged in the sexual activity to engage in the sexual activity and that the affirmative consent is sustained throughout the sexual activity.”
What exactly constitutes sexual activity? Does a lingering hug count? What about kissing someone on the cheek or lips? While some might scoff at this question, the fact that the bill defines nine different terms, and that sexual activity is not among them, suggests that this question is one the authors of the bill found it convenient to avoid.
Worse still, how are college students supposed to ensure affirmative consent is sustained throughout the sexual activity? Are they to ask between each kiss whether it is okay to kiss again? Or every 10 minutes, as one affirmative consent advocate recommends? Some interval of time in between? Perhaps it’s each time the sexual activity “escalates,” as California would have it. What, then, if the activity de-escalates and then re-escalates? And doesn’t what constitutes as escalation vary from person to person? Given that anyone accused of violating this law is going to have to prove that he or she did whatever is required to get consent, this is a pretty vital question that Connecticut legislators should have asked before voting for HB 5376. FIRE asked similar questions of students at New York University (NYU) last October shortly after New York enacted its affirmative consent law.
As expected, NYU students were affirmatively confused.
And there are still further problems with HB 5376. As attorney and writer Hans Bader explained in his May 8 article in the Examiner:
Depending on how it is interpreted, Connecticut’s affirmative-consent law, HB 5376, may violate due process by excluding critical evidence of consent. Ominously, the law says that “the existence of a dating relationship or a past sexual relationship between persons shall not constitute consent to engage in the sexual activity.” It is certainly true that being in a sexual relationship or dating relationship does not give anyone the right to force sex on anyone else. But the existence of a sexual relationship is often highly relevant to the issue of consent, providing powerful circumstantial evidence of consent.
HB 5376 may brand innocent behavior as sexual misconduct because of the due process concerns Bader describes. For example, the law states that it is not a “valid excuse to an alleged lack of affirmative consent” if the accused student was “intoxicated or reckless or failed to take reasonable steps to ascertain” consent. An accused student is also not excused if he or she “knew or should have known” that the alleged victim “was unable to consent because [he or she] was unconscious, asleep, unable to communicate due to mental or physical condition or incapacitated due to the influence of drugs, alcohol, or medication.”
FIRE takes no issue with the general premise that sexual activity with individuals who lack the capacity to consent is unlawful. But under HB 5376, a young woman in a committed relationship who wakes her sleeping boyfriend with a kiss, for example, may now be guilty of sexual misconduct because she could be prohibited from using the existence of that relationship as evidence of consent. (If this fact pattern sounds extreme, just look at the facts of the case in Doe v. Brandeis University.) She would also be in violation of the affirmative consent standard because she could not prove she obtained consent in advance.
Is this really what the Connecticut legislature had in mind when it passed this bill? Likely not, but under a plain reading of HB 5376, innocent college students—and victims—could be wrongfully labeled sexual predators simply because they did not participate in a state-mandated sex talk beforehand.
Policymakers can enact common-sense, reasonable, and effective reforms to better combat sexual violence, provide resources to victims, and protect the rights of all students. Unfortunately, HB 5376 misses the mark.