Affirmative Consent for Sex: R.I.P.?

Contact: Gina Lauterio

Affirmative Consent for Sex: R.I.P.?

WASHINGTON / December 28, 2016 – Following heated debates on campus sexual assault, legislators in 10 out of 11 jurisdictions decided to not enact affirmative consent legislation in their states in 2016. Connecticut was the only state to pass an affirmative consent bill into legislation (1). California was the first state to enact such legislation at the end of 2014, and Connecticut is only the third state, after New York, to adopt such a law (2).

The major news story for campus sexual assault in 2016 was the sexual assault case involving Brock Turner at Stanford University. This incident occurred in California, despite the existence of a widely touted affirmative consent law in that state. The case highlighted the necessity for greater law enforcement involvement in such crimes (3).

Affirmative consent proposals experienced a range of other set-backs in 2016, suggesting a turn to other strategies to end campus sexual assault:

In March, a federal District Court ridiculed the Brandeis University affirmative consent policy. Judge Dennis Saylor wrote, “it is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship” (4).

In May the membership of the prestigious American Law Institute, by a four-to-one margin, voted down a proposal to make affirmative consent the centerpiece of a proposed overhaul of its Model Penal Code for Sexual Assault (5).

In August, a study found “yes-means-yes” policies bear little relationship to the reality of sexual foreplay among college students. Based on interviews with California students, sexual encounters reportedly “just happened” following, for example, a nuzzling of the neck or tug on a partner’s sweatpants (6).

SAVE believes sexual assault is a crime, and should be treated as a crime. In January, SAVE will launch its Safe Students in ’17 campaign, which will feature its model Campus Equality, Fairness, and Transparency Act (CEFTA), designed to further involve criminal justice experts in campus sexual assault cases (7).

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