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Campus Kangaroo Courts
“Yes Means Yes” in the Constitution State?

The proponents of affirmative consent are quietly pushing forward with their offensive in the sex wars. The national media briefly and intensely debated the “yes means yes” standard for sexual assault in 2014, when California Governor Jerry Brown signed a bill mandating that colleges across the state require that students receive ongoing, affirmative consent for every act at every phase of every sexual encounter. Then New York followed suit without attracting very much press, and the influential American Law Institute started to mull endorsing the standard for colleges across the country.

The latest: Connecticut legislators have recently taken up again the fight to make the Constitution State adopt an affirmative consent policy for college campuses. An effort last year to establish this policy was unsuccessful; if it works this year, Connecticut will be the third state in the country to adopt this rule for college students. The Hartford Courant explains:

The concept, known as “affirmative consent,” shifts the burden of proof in disciplinary cases from victim to perpetrator. Instead of requiring a victim to prove that she or he said no to sexual contact, the policy requires a school’s disciplinary board to determine whether there was an unambiguous and voluntary agreement to engage in sexual activity. If not, a student could be expelled or subject to another punishment.

Such policies “create a safer campus environment for students to come forward after an assault,” said Maddie Granato, a policy associate with the Connecticut Women’s Education and Legal Fund.

What is currently taking place is nothing short of a revolution in the meaning of rape, consent, and due process of law. Though it’s currently confined to campuses, don’t expect this movement to stay that way. After all, it doesn’t make sense for state legislatures to mandate one definition of sexual assault for 22 year-old college students and another for 22 year-olds who are out in the workforce. There have already been some discussion of applying standards like “yes means yes” outside of the campus context, and we fully expect efforts to do so to get more aggressive if and when the campus takeover becomes complete.

As we’ve said before, affirmative consent proponents clearly have the best of intentions: They are trying to combat sexual assault. Additionally, one could also see affirmative consent as a way to attempt to level the playing field in a post-sexual revolution campus romantic scene that all too often seems to conform primarily to the interests and desires of unrestrained young men. But “yes means yes” is no solution at all. The rule is simply unworkable: Many ordinary sexual encounters would run afoul of the standard, if interpreted literally. Moreover, a presumption of guilt—requiring the accused to prove his innocence—is incompatible with American principles of due process of law. Hopefully citizens of the Constitution State, of all places, will recognize this, and urge their representatives to say “no” to “yes means yes.”

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  • jeburke

    “romantic scene that all too often seems to conform primarily to the interests and desires of unrestrained young men.”

    I think TAI has this wrong or at least only half right. Most evidence of sex on campus seems to indicate that young women are all in for the “hookup culture.” Like women everywhere across time, some in the wake of such hookups feel either guilty, or resent their one-time partners’ not continuing to woo them, or react negatively to unwanted ongoing attention. Casual sex may be in, but that doesn’t change the mating dance of the sexes that has been going on for 100,000 years.

  • lukelea

    Sex tapes required for self-defense.

  • FriendlyGoat

    “Many ordinary sexual encounters would run afoul of the standard, if interpreted literally.”

    Those are the ones which may suddenly not take place at all—–which is the point—–leaving the male altogether blameless.

    • Jim__L

      One nice thing about being married long-term, you learn just how many things can mean “yes”. =)

      Literal interpretation of this statute criminalizes innocent behavior. That sort of law is unjust, by definition.

      • FriendlyGoat

        Sexual activity that “does not take place” in the premarital college setting is not criminal behavior. This is the point. The billy goats need a fence. Then they are much better billy goats when contained.

  • Blackbeard

    A core idea of the Administrative State is to criminalize nearly everything and then the State can decide who to prosecute, or not prosecute, based on politics, or whim, or whatever they like. Taken literally “yes means yes” would mean that if a young couple is out on a first date and, for example, the girl looks at the boy, smiles shyly, and takes his hand, that would be a sexual assault. Does anyone think such a thing will ever be prosecuted? And yet having such a law on the books will mean that it is yet another tool that the State can use when it has a point to make.

    When Scalia was still alive I had hopes the Court would ultimately put a stop to this but I fear the liberals are about to have a permanent 5 to 4 or even 6 to 3 majority. Not much hope there.

  • bottomfish

    There is also the “preponderance of evidence” standard in these cases — no need to prove that sexual assault really did occur, just show that “the preponderance of evidence” is that it occurred. Affirmative consent PLUS preponderance of evidence makes a near-insurmountable barrier to proving innocence.

  • Bucky Barkingham

    I thought Liberals want to keep government out of the bedroom.

    • CapitalHawk

      Only if you are restricting the activities of women and homosexuals. Men, on the other hand, should absolutely be restricted. Like a lot. Because men.

  • Matt B

    The left is constructing a new Puritanism for the 21st century. Massachusetts should be next: the bill could be signed into law on Plymouth Rock.

  • biancaneve

    These progressives don’t realize it, but what they’re advocating is no sex unless you have a legally-binding document agreeing to sex. In plain speaking, we call that a marriage license.

  • Brian Flate

    Well since the “constitution state” raped the 2nd Amendment in their anti-gun law hysteria why not move onto the bedroom. Leftist fascists.

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