PR: On the Heels of Judicial Reversal, Law Professors Assail Affirmative Consent

Contact: Gina Lauterio

On the Heels of Judicial Reversal, Law Professors Assail Affirmative Consent

WASHINGTON / February 8, 2016 – Following a landmark legal decision last summer, law professors across the country are criticizing affirmative consent policies as ineffective, unfair to defendants, and harmful to women. SAVE calls on lawmakers to focus on proven rape control strategies such as enhancing campus security measures, reducing alcohol-related assaults, and involving criminal justice authorities.

On August 4, 2015, judge Carol McCoy overturned a decision of the University of Tennessee at Chattanooga to expel a student on allegations of sexual assault. McCoy ruled the university’s affirmative consent standard “improperly shifted the burden of proof” because the “ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” (1)

Following the judicial reversal, legal experts began to express a range of concerns with the standard, including the policy’s unworkability, lack of effectiveness, curtailment of due process rights, wrongful convictions, constitutional problems, and broader social effects.

John F. Banzhaf, professor at George Washington University Law School, explains the affirmative consent standard “is not logical — nobody really works that way.” (2)

University of Kansas law professor Corey Yung worries that affirmative consent policies are ineffective “because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative.” (3)

Nadine Strossen, faculty member at the New York Law School and former president of the ACLU, notes: “These affirmative-consent rules violate rights of due process and privacy…Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.” (4)

Tamara Rice Lave of the University of Miami School of Law reinforces concerns about shifting the burden of proof to the defendant: “But with affirmative consent, the accused must put on evidence.” (5)

Alan Dershowitz, Emeritus Professor at Harvard Law School, explains that “Requiring the accused to demonstrate that affirmative consent was obtained, which is often difficult to prove,” would result in an “unacceptable” number of wrongful convictions. (6)

Baruch College law professor Jay Weiser highlights the constitutional problems: “The new affirmative-consent rules run afoul of many constitutional principles” because they are “vague and overbroad” and “amount to government-compelled speech.” (7)

Harvard Law School faculty member Janet Halley reflects on the broader social effects of affirmative consent policies that would “foster a new randomly applied moral order that will often be intensely repressive and sex-negative…They will install traditional social norms of male responsibility and female helplessness.” (8)

Referring to a proposal being considered by the American Law Institute, San Diego law professor Kevin Cole writes that the draft’s overly broad affirmative consent provisions would determine “the legality of every sex act between individuals who are not in an intimate, cohabiting relationship” and “will pose dangers to [women] whose protests are genuine.” (9)

University of Pennsylvania law professor Paul Robinson argues, “The most promising path to changing the culture of sexual consent on college campuses is to adopt and regularly reaffirm ‘yes means yes’ as the rule of proper conduct, but to reject it as the principle of adjudication.” (10)

The Foundation for Individual Rights in Education (FIRE) summarizes the legal pitfalls with affirmative consent, concluding, “Expanding the definition of an offense so broadly that it encompasses truly innocent people in an attempt to secure more guilty findings is unacceptable.” (11)

This week marks the two-year anniversary of the introduction of an affirmative consent bill in California. On February 10, 2014, Kevin de León introduced SB 967, which mandated the “yes-means-yes” standard for all California colleges. Seven months later Gov. Jerry Brown signed the controversial bill into law.

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

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