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Dershowitz: Affirmative Consent Good in the Bedroom, Bad in the Courtroom

By October 15, 2015

Writing in The Washington Post, Harvard Law School professor emeritus and longtime civil liberties advocate Alan Dershowitz makes a compelling case that while affirmative consent may be a good model for individual communication about sexual activity, it is a “dreadful mistake” for universities to use it to determine whether a student has committed sexual assault.

To explain this distinction, Dershowitz divides issues of consent into two separate questions. First, there is the primary personal question one faces of whether “to proceed or not to proceed” with a sexual encounter. Second, there is the question of how a judicial system—either a court of law or a university tribunal—“decides whether a given sexual act did or did not receive consent.”

With regard to the first question, Dershowitz writes that he believes affirmative consent is a very good thing:

[I]t is better that 10 acts of potentially welcome sex be avoided than that even one act of nonconsensual sex occur. Put more simply, we should always err on the side of being absolutely certain that our potential partners have, in fact, consented. I have always urged my children, my friends and my students to act on that principle. It may well be true that requiring overt verbal consent de-romanticizes the act under some circumstances.  But that is a small price to pay for avoiding any act of nonconsensual sex, which can be catastrophic to the victim.

But when it comes to the second question—whether a person should be found responsible for sexual assault—affirmative consent increases the risk that innocent students will be found guilty. Dershowitz argues that this result is unacceptable, echoing Blackstone’s formulation (named after the legendary English jurist William Blackstone):

Even though it is better for 10 potentially welcomed sexual acts not to occur than for one non-consented act to take place, it simply doesn’t follow that the same calculus should be applied in the context of enforcement and punishment on a college campus. In that very different context, it is better for 10 individuals who did not obtain consent to go free than for even one individual who did obtain consent to be wrongfully punished. Being wrongfully punished can be catastrophic for a student.

Dershowitz also takes on the federally mandated “preponderance of the evidence” standard, arguing that this, too, unacceptably increases the risk of an erroneous finding of guilt:

While that lower standard makes convictions easier to reach, it also means that for every 100 students who are disciplined under this standard, as many as 49 of them may well be innocent.  That ratio is unacceptable in any civilized society that cares about the rule of law and the principle of fairness. Requiring the accused to demonstrate that affirmative consent was obtained, which is often difficult to prove, tips the balance even further.

FIRE strongly agrees. Both the preponderance of the evidence standard and the affirmative consent standard undermine fundamental fairness and, in the case of affirmative consent, the presumption of innocence to which anyone accused of such a heinous offense should be entitled. FIRE also agrees—and we have seen this time and again—that due process matters in campus judiciaries because “[a] wrongful conviction for sexual assault may end a student’s opportunity for further education and a meaningful career.”

You can read Professor Dershowitz’s thoughtful articulation of these important points in full on The Washington Post’s website.