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.”