Face-Off: Affirmative Consent

Jessica Heppler

With many universities updating their sexual misconduct policies to include affirmative consent, everyone has something to say about why it is wrong, from students to Harvard Law School professors. But most of these criticisms are unfounded, primarily due to serious misconceptions. My primary concerns are about criticisms that all sex will inevitably be classified as rape under such a mandate or that such a policy undermines due process. The former misconstrues affirmative consent and the latter is based on serious misunderstandings regarding how “due process” translates from courts to schools.

According to the uniform State University of New York definition of consent, affirmative consent “can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.” Opponents dissent, “What counts as consent? Won’t it make sex unnatural and unsexy, or does this mean every sexual encounter without this will be rape?”

Many fear that this new definition, “yes means yes” instead of “no means no” puts a large burden on the accused. Slate’s Amanda Marcotte explained that such a policy will not matter for the majority of sexual activity, but when there is a sexual assault reported, it will make sure the most relevant questions are asked. Instead of asking what she (victims are mostly female) was wearing, it will be more important to ask if and how consent was given or expressed.

And yes, it does place the burden on the initiator. Some refer to it as “You Better Be Pretty Damn Sure” law. I am inclined to agree; it worries me that people are more concerned that the sex they are having will be non-consensual than they are about whether their partner is actually consenting. It is very easy to ask how your partner is feeling or if he or she is doing all right. It really isn’t that much of a buzzkill.

Another concern many people have about new sexual assault policies—like those at Harvard University—is that it will undermine due process insofar as sexual assault will require a “preponderance of evidence” rather than “clear and convincing evidence.” Using this to criticize sexual assault policies—at least at public schools—is something of a straw man argument. According to the Article 10, Volume 53 of the Boston College Law Review “The Process That is Due…,” Lavinia M. Weizel explains why the preponderance of evidence is adequate for sexual assault complaints in the university.

Federal courts have upheld the need for university disciplinary hearings to be more informal than court hearings. This essentially means that whoever decides must not sanction students based on less than probable facts.

Moreover, that private interests are at stake is crucial to the “preponderance” requirement as well. Clear and convincing evidence is necessary only when civil liberties are at stake, like permanent civil commitments or denaturalization. The preponderance is usually used in civil rights cases; sexual assault falls under this category. The article goes on to explain how this upholds due process for both the school and the accused. If someone has an issue with the “preponderance” requirement, it is not a sexual assault issue. This is the case for almost all disciplinary hearings in a university setting.

While 28 Harvard Law professors may have signed a letter indicting this policy, there are 122 total. Ultimately, new sexual assault policies have been subject to unfair criticisms and straw man arguments. Worries about affirmative consent are not totally unfounded, but they––and different clauses meant to protect all involved parties—are highly misconstrued. Interpreting these policies more charitably is required for a more robust understanding of why they are in place and who is being protected.

Grant Kusick

Hardly anyone is satisfied with the current state of sexual misconduct policies in place at universities around the country. There are those who believe that administrations do not do nearly enough to protect students or pursue justice for victims. This is understandable, given the long and sordid tradition of schools hushing up rape accusations to protect their own interests.

There are others, however—myself included—who are concerned that many sexual misconduct policies violate the most fundamental principles of due process. Introduced in July, Harvard University’s new sexual assault policy typifies the move toward ensuring swift expulsion. Everything from investigation to sentencing is handled privately within the Title IX office. Accused rapists do not have access to legal counsel or representation if they cannot afford it. Accusers may not be cross-examined. To top it off, the standard of proof required for conviction has been moved from “clear and convincing evidence” to a “preponderance of evidence”—a more than 50 percent chance of guilt.

In response, 28 Harvard Law School faculty members and emeriti signed a letter calling upon the university to withdraw the new misconduct policy. “As teachers responsible for educating our students about due process of law …we find the new sexual harassment policy inconsistent with many of the most basic principles we teach,” they said.

The new policy reflects the pervasive idea that because of the emotionally harrowing nature of rape and entanglement in structural gender inequality, rape must be prosecuted differently than any other crime. Many sexual assault victims have been silenced by administrations in an effort to save face. Harvard’s response is to do away with cross-examination and any honest attempt to verify claims. The intent is to protect victims, but the result is a complete inversion of the American legal process.

The letter continues, “The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment.” With respect to cases where determining consent is difficult and inebriation is involved, Harvard’s new policy is actually not that extreme. It lacks an “affirmative consent” clause, which the forthcoming State University of New York policy includes.

Colloquially known as “yes means yes,” affirmative consent encourages people to give strong signals and respect their partner’s wishes. This is an important step forward in the sexual culture of campus life. As a legal standard, however, it is incredibly worrying. Cathy Young of The Daily Beast notes, “Yes means yes shifts the burden of proof to the accused, which fundamentally conflicts with the presumption of innocence.”

Much of the new approach to consent and to what constitutes sexual assault is necessary and just. But the amount of grey area involved makes adjudication complicated. An approach that keeps students safe and guarantees fair treatment for both victims and the accused is necessarily more complicated. It requires the participation of legal scholars, such as those at Harvard, who have been unnerved by recent trends and left out of the process. They recognize that it is unacceptable to address the injustice of rape and gender inequity by compromising our most fundamental principles of justice.