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Contact: Gina Lauterio

Email: info@saveservices.org

Law Professors Voice Concerns Over ‘Affirmative Consent’ Policies for Sex

WASHINGTON / September 9, 2015 – A growing number of legal scholars are expressing concerns over affirmative consent policies that some universities are considering for implementation. The concerns follow recent passage of laws in California and New York mandating such policies on college campuses.

This past week, Tamara Rice Lave of the University of Miami law school wrote on her blog, “I have a problem with legally requiring affirmative consent. I don’t see how making a person prove that her partner consented doesn’t switch the burden of proof to the accused…I find this trend to be extremely troubling.” http://prawfsblawg.blogs.com/prawfsblawg/2015/09/affirmative-consent-and-switching-the-burden-of-proof.html

Nadine Strossen, former president of the American Civil Liberties Union and current professor at New York Law School, recently noted, “These affirmative consent rules violate rights of due process and privacy. They reverse the usual presumption of innocence. Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.”  http://news.hamlethub.com/ridgefield/events/48981-former-aclu-president-nadine-strossen-will-be-the-keynote-speaker-at-wcsu-s-constitution-day

Professor Corey Yung at the University of Kansas worries that affirmative consent policies are ineffective and may turn out to be harmful to victims: “because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative.” http://concurringopinions.com/archives/2014/10/californias-college-rape-rule-is-probably-a-bad-idea-but-not-for-the-reasons-the-critics-say.html

In his law review article, Touro Law School professor Richard Klein undertook a detailed analysis of state rape statutes and concluded, “Instead of the historical requirement that the state prove each element of the offense – and lack of consent is the crucial element – it may well now be the case that the defendant must prove that there was consent by a preponderance of the evidence.” http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1075&context=scholarlyworks

On August 4, 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 “improperly shifted the burden of proof…Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf

Stop Abusive and Violent Environments is working to promote effective solutions to campus sexual assault: http://www.saveservices.org/