Robby Soave: Teach ‘Yes Means Yes,’ but Don’t Expel Violators

September 30, 2015

By Robby Soave at The Orange County Register

California legislators have a new plan to reduce campus sexual assault: require that kids learn about the principles of affirmative consent before they even make it to college. It’s a shame that this wasn’t the plan all along, because teaching students about “yes means yes” is a much better idea than California’s previous idea: expelling students for failing to prove that their sexual encounters meet the requirements of an unworkable affirmative consent law.

Senate Bill 695, which was signed by Gov. Jerry Brown earlier this month, will require all high schools that offer health classes to include sexual harassment training as part of the curriculum. The bill instructs schools to make “information on the affirmative consent standard” a part of class discussion and to inform students about “legal aspects of sexual harassment and violence under state law.”

This approach, while well-intentioned, is not without issues. The affirmative consent standard – which maintains that parties to a sexual encounter must outwardly agree to each new sexual act – is not actually a legal standard. California colleges are required to enforce it in campus sexual assault adjudication, but criminal courts in the state can’t put people in prison for failing to comply with it. That’s a difference that might confuse students if not addressed properly. As Joe Cohn, a lawyer with the Foundation for Individual Rights in Education, told the Guardian, “What we would support is teaching students about how desirable it is to have better communication about their partner’s boundaries up front. That is not a bad thing. But teaching students that it is a requirement dramatically undermines student rights.”

If schools teach students that sex is illegal without affirmative consent, then this law is a bad idea. But as long as schools treat the affirmative consent standard as an aspirational goal – one should strive for clearer communication of sexual expectations, even when not explicitly required – rather than a license to restrict students’ rights or scare them away from the idea of ever having sex at all, SB695 could work. Better education could, in theory, curb sexual assault rates on college campuses by fostering a generation of teens more likely to ascertain ironclad permission before they have sex.

But it still utterly fails as the standard by which to judge college sexual assault cases – an ill-considered requirement of last year’s “yes means yes” law.

That law forces college administrators to settle rape disputes using the affirmative consent standard.

The faults are glaring. What if two students say the words before they start kissing but don’t re-up the consent discussion before the touching begins? And while it’s often understood that “nonverbal cues” play a key role in human interaction, the law doesn’t recognize them.

Compounding this problem is the preponderance of evidence standard – the burden of proof in college sex trials as required by the “yes means yes” law. Adjudicators are supposed to find students guilty of assault if they are even 51 percent certain the affirmative consent standard was violated.

This means that accused students must somehow prove to university administrators who lack formal legal training that they had permission to engage in each and every sex act. This confluence of factors, which no actual criminal court would ever recognize as satisfactory for due process, heavily tilts the playing field against accused students, essentially codifying that students in these trials are guilty until proven innocent.

It’s all well and good to teach teens that clearly articulated consent is the goal. But expelling students who have been denied their constitutional rights and have no way to prove their innocence isn’t a recipe for a culture of healthy consent.

Robby Soave is a staff editor at Reason.com, where he covers campus issues.