Our friend Glenn Reynolds once observed that the affirmative consent debates on college campuses are “just a test“—a preview of the efforts to redefine the meaning of sexual consent for the general public, as well. In the last two years, state legislatures in New York and California have mandated that all colleges in their jurisdiction adjudicate sexual assault under a Yes Means Yes standard—meaning that students must obtain explicit consent for every sexual act in every sexual encounter (including, theoretically, handholding or a kiss on the cheek). California also required that public high school sex education classes train students in the new paradigm. Meanwhile, a growing faction of legal scholars has started entertaining the idea of affirmative consent as the appropriate standard, not just for campus disciplinary tribunals, but for criminal proceedings as well.
But the transition from campuses to courts hit a major stumbling block yesterday, when the American Law Institute—a group of judges and scholars that prepares a “model penal code” that many state legislatures use for guidance in crafting their own criminal laws—resoundingly repudiated Yes Means Yes. The Washington Times reports:
In a rebuke to a feminist idea that has migrated from college campuses to mainstream culture, an influential legal group overwhelmingly rejected Tuesday a provision that would have endorsed an “affirmative consent” standard for the purpose of defining sexual assault. […]
Brookings Institution Nonresident Senior Fellow Stuart Taylor Jr., who attended part of Tuesday’s meeting, applauded the ALI’s rejection of the affirmative consent standard as resistance to an ideologically-driven and unrealistic idea.
“I think it’s a very encouraging indication that the broad membership of the American Law Institute, which is a pretty elite group, has repudiated a radical expansion of sex-crime law that was sought by a powerful faction of people whom I regard as ideologues,” Mr. Taylor said.
Butler is right that Yes Means Yes represents a menace to civil liberties—on campuses, yes, but even more so in a courtroom, which has the power not just to expel someone but incarcerate her. By radically expanding the definition of sexual assault, affirmative consent would technically make criminals of many if not most ordinary citizens, meaning that the authorities would have broad leeway to punish disfavored individuals and groups. And by requiring that the accused prove that she obtained explicit consent, the law would undermine the principle of innocent until proven guilty that is the lodestar of enlightened criminal justice systems. At least one judge has suggested that the standard is unconstitutional.
But the Yes Means Yes opponents should not be too encouraged by this one victory. The fact that the American Law Institute was even had a vote on adding this standard to the model penal code would have been unthinkable 25 years ago, when Antioch College‘s adoption of Yes Means Yes made it a national laughing stock. In the last five years alone, the Yes Means Yes forces have won victory after victory, persuading hundreds of colleges to adopt standards like Antioch’s, and even persuading state legislatures to formally codify them. A generation of lawyers is being trained by an increasingly left-wing academy that enforces Yes Means Yes for its students. So the American Law Institute vote 10 years from now may yield a very different result.