Affirmative Consent Is Spreading
New Jersey and New Hampshire consider "yes means yes" bills
Affirmative consent policy is gaining ground beyond California. Just a few months after the golden state passed a law redefining rape for college students, legislatures in both New Jersey and New Hampshire are considering doing the same. The aim of affirmative consent policy is to shift the sexual standard from "no means no" to "yes means yes", and in doing so reduce sexual assault rates or at least make it easier to prosecute assaults on campus. In theory this may not sound like a bad idea, but California's law—and those being modeled after it—come with a lot of problematic assumptions and extras baked in, as Reason writers have previously detailed here, here, here, and here.
New Jersey's proposed affirmative consent legislation, introduced in both houses of the Legislature, would require "institutions of higher education to adopt affirmative consent standard and other policies regarding sexual assault, domestic violence, dating violence, and stalking." The statute defines affirmative consent similarly to how California did:
"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 the person 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.
(…) 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: (1) the accused's belief in affirmative consent arose from the intoxication or recklessness of the accused; or (2) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(…) 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: (1) the complainant was asleep or unconscious; (2) 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; or (3) the complainant was unable to communicate due to a mental or physical condition.
The New Jersey proposal also lays out procedures and record-keeping requirements that colleges must follow when handling sexual assault, stalking, and domestic violence claims. And it requires colleges to adopt a "preponderance of the evidence" standard when adjudicating these cases. Under this standard (the lowest standard of proof used in civil claims), the accused must be found guilty if college administrators perceive more than a 50 percent likelihood that he or she is. "Traditionally," explains Cathy Young, "the standard for finding a student guilty of misconduct of any kind has been 'clear and convincing evidence'—less stringent than 'beyond a reasonable doubt,' but still a very strong probability of guilt."
In October, New Hampshire legislators introduced nearly identical legislation. Under its proposed bill, private colleges that don't adopt affirmative consent policies would lose tax-exempt status, while public universities would lose state funding. Earlier that month, New York Gov. Andrew M. Cuomo said the State University of New York (SUNY) will institute a system-wide definition of sexual consent that adheres to affirmative consent standards, among other policies aimed at addressing sexual assault.
As Associated Press noted, affirmative consent policies are being driven by "pressure to change how (colleges) handle rape allegations" from both students and the U.S. Department of Education. Sarah McMahon, co-director of Rutgers' Center on Violence Against Women and Children, told AP that it's great that this is receiving attention, "but it's not a new issue. I think what's fuelling it are student protests about how their institutions have mishandled cases."
This seems a popular and uncontroversial consensus: a lot of college campuses were doing a terrible job serving sexual assault victims. Perhaps a logical response would be for 1) colleges and university systems exploring areas where they can improve victims services and 2) turning over the actual investigation and adjudication of sexual assault cases to police and the criminal justice system.
Students all over the country already have been rising up and demanding their campuses change the way they handle rape allegations. And schools have been changing policies. It's not an overnight process, yet it's underway and gaining momentum. But instead of letting this more grassroots and individualized reform thrive, state legislators are attempting to save the day with an one-size-fits-all, magic-bullet solution that strips student due process rights, increases bureaucracy, and ignores reality.