Colleges across the country have begun to institute problematic “affirmative consent” policies governing sexual activity among students — sometimes called “yes means yes” policies. While the details vary from campus to campus, affirmative consent policies generally require that participants in sexual activity obtain objectively demonstrable consent at every step of a sexual encounter.
These policies are problematic because under most affirmative consent regimes, a student who engages in consensual sex may be found guilty of sexual assault simply by being unable to prove that he or she obtained unambigious consent to every sexual activity throughout a sexual encounter.
An increasing number of colleges and universities have adopted affirmative consent policies in an effort to combat sexual assault on campus. But these policies threaten fundamental fairness by enforcing standards against accused students that are often vague and/or overbroad, and may lack the details necessary for students to comply. Indeed, many such policies are, for all practical purposes, impossible to follow.
Worse still, it is difficult, absent some kind of recording, for an accused student to be able to demonstrate that he or she received a verbal or other explicit “yes” for a sexual encounter even when consent was, in fact, given. Because many policies require the indications of consent during sexual activity to be “continuous,” or that explicit consent be given for every stage of every sexual encounter (though what constitutes a “stage” is seldom defined), even a written acknowledgment that a person wishes to have sex, such as a text message or the use of a smartphone application to record consent, may not serve as sufficient proof that a party received consent to sexual activity. This leaves those accused of sexual misconduct under “affirmative consent” policies with no way to prove that they actually obtained consent from their partner or partners. As one court put it, under an affirmative consent policy, “the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” Mock v. University of Tennessee at Chattanooga, No. 14-1687-II (Tenn. Ch. Ct. Aug. 10, 2015).
For example, California’s 2014 affirmative consent law requires California’s public and private university and college students to obtain verifiable, “ongoing” affirmative consent throughout the course of a sexual encounter. It is impossible to tell from the bill’s wording how often students must pause to receive explicit consent in order for their sexual activity to qualify as sufficiently “ongoing” and thus consensual. How might a student accused of nonconsensual sex demonstrate his or her innocence? Students left guessing about exactly how to prove receipt of affirmative consent are not alone. In response to this very question, the statute’s co-author, Assemblywoman Bonnie Lowenthal, said at the time, “Your guess is as good as mine.”
In New York, students’ sex lives are also regulated by a state law regarding affirmative consent. FIRE traveled to New York City to ask random college students what they knew and thought about their state’s law. If their answers are any indication, many students engaging in consensual sex in New York are just an accusation away from being unjustly found guilty of sexual misconduct.
Those familiar with American law’s fundamental principle of “innocent until proven guilty” may notice that affirmative consent standards effectively flip this principle on its head, leaving accused students guilty unless they can prove themselves innocent. Such a standard amounts to an abandonment of the principles of fundamental fairness in campus tribunals.
You can read more in FIRE’s Guide to Due Process and Campus Justice. And if you have been found guilty of sexual misconduct for consensual sex solely because of the application of an unjust affirmative consent standard, please consider submitting your case to FIRE.