The “Yes Means Yes” sexual consent standard, which requires that a person receive ongoing, affirmative consent throughout every phase of every sexual encounter, is gaining momentum. Both the California and New York state legislatures have required that all colleges in their jurisdiction use this standard when adjudicating sexual assault (meaning, technically, that a woman who reaches out to hold her boyfriend’s hand on the quad, without asking permission, is guilty of misconduct, even if the standard would not be applied in that case). Now it looks like one of the most well-respected legal organizations in the country may endorse “Yes Means Yes.” The Chronicle of Higher Education reports:
The American Law Institute, a scholarly group influential in legal circles, is beginning to craft guidelines on campus sexual assault that will seek to outline best practices and bring some clarity to the tangles of compliance with federal law. […]
[Stephen Schulhofer, a law professor at NYU and leading member of the committee] wasn’t intending to recommend an affirmative-consent benchmark for criminal law. But he said it was worth considering something close to it for a college setting. “I think it’s better to have both parties understand that you don’t take the next step unless you’re sure that it’s welcome,” he said.
The ALI doesn’t have the authority to compel campuses to adopt this standard. But if it endorses “Yes Means Yes,” we can likely expect even more universities and state legislatures to follow its lead and enact similar policies. This would be a disaster for campus civil liberties, hugely expanding the authority of administrators to punish students they don’t like (since virtually everyone who has had a romantic encounter has technically run afoul of the standard).
Supporters of affirmative consent clearly have good intentions—in particular, to level a sexual playing field that all-too-often seems to be tilted in favor of exploitative frat boys—but “Yes Means Yes” is simply unworkable, and incompatible with due process of law. At least one wise judge has issued a ruling to this effect. Let’s hope that the academics at ALI pay attention to her reasoning, rather than caving to political pressure from campus activists.