Affirmative Consent: Banning 99% of All Sex Acts
SUCCESS – May 2014:
On February 24, 2014 the U.S. Department of Education proposed a new regulation that would require colleges to mandate “affirmative, unambiguous, and voluntary agreement” between students engaging in sexual relations.
The proposed rule triggered an outpouring of opposition. On April 2, the Department of Education removed the Affirmative Consent provision from its proposed regulation.
WHAT IS ‘AFFIRMATIVE CONSENT’?
Rapes have plummeted to their lowest levels in decades—see graph. Still, some insist our society is permeated with what they call “rape-culture.” Their solution? Affirmative Consent, which is described as persons’ “affirmative, unambiguous, and voluntary agreement” for any sexual encounter.
How would Affirmative Consent work in practice?
On March 31, 2014, a would-be rapist crept into a dormitory at the University of Illinois-Chicago and accosted a student as she was taking a shower. Fellow student David Guerrero heard her screams, rushed to her aid, and successfully stopped the attack.
This assault was stopped thanks to bystander intervention. Improved campus security measures could have helped, as well. Does anyone believe a new policy that mandates “affirmative, unambiguous, and voluntary” consent would have prevented the incident?
So Affirmative Consent policies would lull potential victims into a false sense of security, while turning all sexually active students into sex offenders — see Ten Steps to Turn any Student into a Sex Offender, below.
The victim-advocacy group Rape, Abuse, and Incest National Network has recommended several strategies to reduce campus sexual violence. Rape is a crime, and should be treated as a crime.
- Cathy Young: Want to Have Sex? Sign this Contract
- KC Johnson: A Deceptive California Bill on Campus Rape
- Hans Bader: California Activists Seek to Redefine Quiet, Consensual Sex as Rape
- Wendy McElroy: Making Men Rapists
TEN STEPS TO TURN ANY STUDENT INTO A SEX OFFENDER
The stringent and impractical requirements of Affirmative Consent would have the effect of making 99% of all sex encounters subject to legal action. This would make it easy to brand any student, male or female, a sex offender for life. Here’s how:
1. Actions Don’t Speak Louder than Words
Under Affirmative Consent, actions cannot be taken at face value. No matter how actively your partner participates in sex, you can still be found a rapist because “relying solely on nonverbal communication can lead to misunderstanding,” according to a recently-introduced California bill. Apparently, endearing glances and passionate hugs don’t count.
2. Once Isn’t Enough
According to the California bill, giving consent at the beginning doesn’t suffice. The bill requires that both parties “continue to consent to sexual activity.” And how do you prove that consent was given? Press “Oh, yes!” on your cell phone app at preset 3-minute intervals?
3. Navigating the Incapacitation Minefield
No one can give consent if they are unconscious or nearly passed out, of course. But Affirmative Consent advocates take the idea much further, claiming that any impairment precludes consent to sex. So forget about that glass of champagne before consummating your wedding vows!
4. “OK” May Not Suffice
Affirmative Consent supporters insist consent needs to be “enthusiastic.” Which means “OK” or “sure” won’t do, because they claim “muted” consent is not really consent. So how many decibels will be determined to be acceptable at the sex assault hearing?
5. No Physical Proof
Under the current Department of Education sex assault policy, there is no requirement for a person who claims to be a victim of sexual violence to get an examination. This means a student can be found guilty of rape without any medical or DNA evidence.
6. What’s the Rush?
Current policies do not establish time limits to filing a claim. At Pomona College in California, a student waited over two years to make a complaint, nearly preventing the accused from being awarded his diploma.
7. Marital Bliss is no Defense
The California bill does not distinguish between a one-night fling and a couple in a long-term relationship having sex: “The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent.” All that matters is explicit, “enthusiastic” consent–preferably documented in triplicate–every step along the way.
8. Giving Kangaroos a Bad Name
College disciplinary committees were set up to handle complaints of plagiarism and cheating. But campus sex courts are out of their league when they try to adjudicate complicated “he-said, she-said” allegations. And even when police investigators decide the accuser is fibbing, the campus tribunal may still find the defendant to be guilty, as happened to Caleb Warner at the University of North Dakota (pictured on the right).
9. Attorneys Not Welcome
Most colleges prohibit the accused from being represented by an attorney. So campus tribunals may get away with abbreviating their already-minimal “due process” requirements. Time to consider majoring in pre-law?
10. Verdict by Coin-Flip
In criminal trials, “beyond a reasonable doubt” is the basis for reaching a verdict of innocence or guilt. But the Department of Education mandates use of the “preponderance of evidence” standard, which means the accused can be found guilty based on only 50.01% certainty. Heads I win, tails you lose!
Until Proven Innocent
Sexual assault continues to be a problem on our nation’s campuses. But concocting an ill-conceived legal regime and inviting campus administrators into the bedroom threatens to turn the whole rape prevention effort into an exercise in parody.