On May 19, Connecticut’s state Senate passed an “affirmative consent” bill, which would require public and private colleges and universities to use an “affirmative consent” standard in determining whether a sexual encounter is consensual. Statements from one of the bill’s co-sponsors suggest, though, that she doesn’t quite have a handle on how the standard would be implemented on campus or on the serious jeopardy the standard poses to the fundamental principle of due process.
The bill, SB 636, defines affirmative consent as “an active, unambiguous and voluntary agreement by a person to engage in sexual activity with another person that is sustained throughout the sexual activity and may be revoked at any time by any person.” It also specifies that “a dating relationship or past sexual relationship does not constitute consent.” The bill mandates that colleges provide annual sexual assault prevention and awareness training for students and employees. Schools must also ensure the accuser and accused have certain information about the investigative process and their options, like the accuser’s right to report to law enforcement and both parties’ right to have an advisor with them throughout the process.
Like California’s SB 967, which was passed last year, SB 636’s language fails to make clear what exactly in practice is required of a student engaging in sexual activity to avoid running afoul of the law. When it came to California’s law, even its proponents expressed significant disagreements about what “affirmative consent” required.
Perhaps more worrying, though, are remarks from Senator Mae Flexer, who introduced the bill. According to the Hartford Courant, Flexer argued for the bill thusly:
"It will stop the victim blaming," Flexer said, and will stop the familiar line of questioning that focuses on whether a victim was drunk or if she wore a short skirt.
Instead, Flexer said, the burden will be on the assailant to explain why he or she thinks they got a "yes."
Flexer said that affirmative consent can be a verbal yes, but can also involve physical cues. "If a man and woman are kissing … and she goes to take off his shirt and he moves away," Flexer said, then the man is indicating by that nonverbal cue that he does not want to go further.
There are three problems here, none of which are new. First is that in any investigation or hearing where finding the truth is a priority, asking uncomfortable questions is often necessary. Fact-finders must seek details that might reveal one party’s story to be more or less plausible, and focusing on details is often one of the ways they can determine a witness’s credibility. For example, questioning a complainant about alcohol consumption is not necessarily victim-blaming. After all, alcohol consumption affects the reliability of one’s memory, and the consumption of large quantities of alcohol can render a person incapacitated. Since incapacitation negates consent, it is bizarre for Flexer (or, if this is a mischaracterization of her statements, the Courant) to suggest that questions about a complainant’s drunkenness should be curtailed. Rather than a blanket prohibition, tribunals should be free to ask these questions when they are relevant and should avoid doing so when the purpose behind the questions is more prejudicial than probative.
Second, Flexer evidently believes that the burden of proof should lie on the person she calls “the assailant”—in other words, the accused individual who is traditionally (though not lately) presumed innocent until proven guilty. The presumption of guilt is particularly dangerous in campus rape cases, not just because of the frequent lack of concrete evidence but also because respondents often face accusations about alleged incidents that happened years earlier. It is an exceedingly difficult task for anyone to disprove claims that they did something so long after the fact, when memories, evidence, and witnesses are all diminished or unavailable.
Finally, Flexer describes what she imagines to be a typical scenario in which, presumably, the students have avoided assaulting each other by using common sense and reading nonverbal signals. But if Flexer aims to depict two students obtaining affirmative consent, she’s failed. The woman should have asked before attempting to take off the man’s shirt. He shouldn’t have to move away to avoid it. That’s the whole premise behind moving from “no means no” to “yes means yes.” Consent, according to the legislation, must always come before the touching, or the touching is presumptively non-consensual.
Ultimately, if those promoting the affirmative consent standard cannot even articulate how it would work in real life, how can we possibly expect it to be implemented fairly by college administrators? And how can we expect college students to follow the unknowable standard? To make students liable without giving them clear guidelines for what they may or may not do is flatly incompatible with principles of due process.
Senator Joe Markley opposed the bill, characterizing it as “an example of government trying to involve itself in things it is not in a proper position to adjudicate.” FIRE certainly agrees that colleges are not competent to adjudicate allegations of such serious crimes. Markley also called it “peculiar” that his peers were determined to change how consent is determined for only college students. His concerns were echoed by a retired University of Connecticut clinical social worker and a UConn student separately writing in to the Courant to opine on the bill. (Like many others, the student also questioned what, precisely, the bill requires students to do.) FIRE is glad to see these commonsense concerns being raised, but we are troubled by the momentum that the unworkable, ill-defined affirmative consent standard is gaining.
Connecticut’s bill will now move to the House of Representatives. Check back to The Torch for updates.