Should the Requirement for Affirmative Consent to Sex be Controversial?

©2014 Kenneth N. Margolin

California recently passed into law, a principle that several college campuses have incorporated into Student Handbooks – the requirement for affirmative consent before and during sexual activity. The California statute, dubbed the “yes means yes” law, has attracted some criticism as being unrealistic and divorced from real life experience. Is the criticism justified? In order to answer that question, it is necessary first, to read the statute. The statute requires colleges to draft policies consistent with the law in order to be eligible for state funding for student financial assistance. The policies must include the following provisions:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

(C) The complainant was unable to communicate due to a mental or physical condition.

Much of the statute should be unobjectionable, as it seeks to make clear that pressing sex on a person who is not able, out of fear, intoxication, unconsciousness, or some mental or physical disability, to consent, is not allowed. It never has been allowed – the statute simply leaves no doubt. Nowhere does the law require verbal or written consent, as some critics, perhaps sarcastically, have suggested. There is no mandate that a student ask his (or her – though one suspects that the law is aimed primarily at men seeking sex with women) partner, whether she wants to engage in each step of a sexual encounter. An affirmative physical response should count as “consent.”

Despite the benign portions of the law and its potential benefit as a tool to educate students about proper sexual mores, there are areas of concern that could lead to injustice against an accused. The law could encourage college officials to be too quick to assume that an accused was responsible for engaging in sex without consent, when the actual circumstances were more ambiguous, especially when alcohol or drugs were involved. Paragraph (4) will require a college disciplinary hearing official – typically untrained in deciding sexual assault allegations – to determine if an accused who says that both he and his partner were intoxicated and willing, “reasonably should have known [that his partner] ... was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.” In some cases, a person’s incapacity will be obvious, for example, if witnesses saw the accused leading a stumbling, incoherent victim to a bedroom. Often, however, both students in a drunken sexual encounter may have impaired judgment, and may not even remember who initiated sex or how it progressed. Under the loose “preponderance of the evidence” standard, a college hearing officer may find it too easy to assume that the accused should have known that his partner was sufficiently incapacitated to render her incapable of consent.

Some critics of the law worry that the requirement that the accused prove he gained consent before sexual activity, destroys the presumption of innocence by requiring the accused to prove affirmatively an element of his defense. Criminal law protections are already lacking in college disciplinary proceedings. In most, for example, the accused’s failure to testify can be taken as evidence of responsibility for the offense charged. The loose procedures in college conduct code hearings, and the potentially catastrophic consequences of being found responsible for sexual assault, are a reason why a “clear and convincing” evidence standard should be used, not the “preponderance of the evidence” standard of the California law, and federal Department of Education mandate.

The gorilla in the room, little discussed, is equal application of the law. If two college students engage in sex when both their judgment was impaired by drugs or alcohol, then, unless one of the students took advantage of the other, they both may have violated the law. Yet, it is difficult to imagine a college conduct board finding a female student responsible for sexual assault against a drunken male. A student who knowingly, sexually victimizes another, should be charged criminally, found guilty, expelled from college, and sentenced in the criminal courts. Colleges enter dangerous territory when they attempt to criminalize two-way poor judgment, and levy severe consequences on an accused, when both participants in sex were impaired.