For Some ‘Affirmative Consent’ Supporters, Injustice Is A Feature, Not A Bug

Robert Shibley Senior Vice President, FIRE
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California’s new law requiring “affirmative consent” for sex on campus is “terrible.” It “tries to change, through brute legislative force, the most private and intimate of adult acts.” Two college seniors in a loving, committed relationship could “fail its test” if they “slip naturally from cuddling to sex.” It’s “extreme” and plagued with “overreach.”

Often glibly referred to as the “yes means yes” law, California’s Senate Bill 967 has made national news and spawned copycats across the country including the enormous State University of New York system, but not without opposition. The above quotes don’t come from one of the law’s many and politically diverse opponents, though. They come from a supporter of the law, Vox.com co-founder Ezra Klein, who says, “Its overreach is precisely its value.”

Klein has done a valuable service by providing the most honest assessment yet of why the law is manifestly unjust in every traditional sense of the word — and why its supporters don’t care.

Obvious problems with the bill abound. It requires that consent “be ongoing throughout a sexual activity,” but specifies no interval for this continuous demand for consent. Is every five minutes enough? Every minute? Even less? Or perhaps it’s every stage of sexual activity — but what constitutes a stage? The law provides no guidance. Waiting for a “no” or other indication that a partner isn’t interested isn’t enough, and consent can be withdrawn at any time. That means even a contract or explicit agreement ahead of time would have no value, as it would be void as soon as one party decided he or she wanted to stop.

The bill also effectively shifts the burden of proof to the accused, making him or her guilty until proven innocent. The question is no longer whether or not someone actually consented to a sexual act, it’s whether the accused can prove that they received such consent — and short of a videotape of the entire encounter, that proof is unlikely to exist. (Videotaping sex without someone’s knowledge is, of course, illegal.) And while in criminal courts, juries must believe that it’s not even reasonable to doubt a person’s guilt, California’s law says that colleges must require campus tribunals to declare the accused a rapist if they are only 50.01 percent likely to be guilty. In today’s political climate, does this seem a prescription for a fair trial?

To Klein and other supporters, these aren’t bugs, they’re features. Citing White House-endorsed statistics saying that one in five women will be victims of actual or attempted sexual assault in college, Klein says that “men need to feel a cold spike of fear when they begin a sexual encounter,” and that “cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations” are “necessary for the law’s success.” Why? To change a perceived culture of entitlement to sex among campus men into a culture where those “unfair” cases “become lore in frats and cautionary tales that fathers e-mail to their sons.” It’s hard to see how this would dissuade serial predators intent on nonconsensual sex — at least one study suggests that they are the bulk of the problem — but it could certainly have an impact on those who don’t place enough value on enthusiastic consent.

Nobody seems to believe that colleges are doing a good job handling sexual assault. Yet California’s law and similar laws being proposed across the country, along with efforts currently in Congress like the Campus Accountability and Safety Act, aim to push colleges even further into a business in which they have no expertise and less credibility. Rather than focus on getting complaints into the criminal justice system and improving that system if necessary, activists are demanding more out of a system that can’t even put rapists in jail where they belong. And now they’re doing it through a system of consent that was famously the butt of Saturday Night Live parody when Ohio’s Antioch College tried to institute it in 1993.

If 20 percent of the young women we send to college truly are suffering from attempted or completed sexual assault, this represents a law enforcement problem of staggering proportions. Yet instead of making sure the police are involved, the state of California has put its faith in a law that by its plain language makes nearly everyone guilty of rape — but only in a campus kangaroo court. That has to be cold comfort not just to those wrongly accused but to today’s campus victims, who, without the involvement of law enforcement, will watch their attackers unceremoniously booted off campus — and freed to prey on the tens of millions of American women who aren’t currently paying college tuition.

Robert Shibley, an attorney, is Senior Vice President of the Foundation for Individual Rights in Education.