How Affirmative Consent Threatens Liberty

The trouble with mandating "yes means yes" on college campuses.

On January 20, most college students in New York and California started their spring semesters under a new regime of sexual policing called affirmative consent ("yes means yes"). Under these policies, any student who cannot prove that he obtained ongoing, unambiguous consent to any sexual activity will automatically be guilty of violating campus sexual assault policies. 

Last fall, Governors Jerry Brown and Andrew Cuomo ordered state schools in California and New York to adopt affirmative consent rules. On January 17, Governor Cuomo announced an initiative to make "yes means yes" policies binding on all private colleges in New York state.  

Affirmative consent laws turn normal human interactions into sexual offenses. They establish a presumption of guilt and strip the accused of due process protections. They are also being used by campus activists to selectively prosecute students with unpopular viewpoints on controversial issues. 

Affirmative consent is part of a three-year campaign to make campuses safer by rescinding the due process rights of students. In 2011, the Department of Education issued a "Dear Colleague Letter" ordering colleges and universities to use a "preponderance of evidence" standard (50.01 percent probability of guilt) to adjudicate cases of sexual misconduct. The letter also advised colleges to subject students to double jeopardy by allowing complainants to appeal not-guilty findings. In a follow-up communication, the Department of Education broadened the definition of sexual harassment to include any "unwelcome conduct of a sexual nature."

Campus sex investigator Djuna Perkins describes adjudication under this system: It "boils down to details like who turned who around, or [whether] she lifted up her body so [another student] could pull down her pants."? Heather Mac Donald warns, "Resolving this evidentiary dispute would not be helped by bedside cameras . . . Pressure sensors would be needed as well to detect asymmetries in touch."

A legal complaint filed by a student at Wesleyan University on November 20, 2014 dramatizes how campus activists can use expansive definitions of sexual misconduct to squelch free speech and freedom of association. In April 2014, John (pseud.), a fraternity member with a 3.9 average and an unblemished judicial record, argued vigorously against a proposal championed by a fellow student, Jane (pseud.), to eradicate all-male residential fraternities from Wesleyan's campus. 

John and Jane had been friends since sophomore year, and in December 14, 2013, they had exchanged text messages in which John asked Jane to hook up. The next morning, John apologized for the messages, and Jane texted back, "we all do dumb shit when we're drunk, we can definitely put it behind us."

The week before the vote on the future of Wesleyan's fraternities, Wesleyan's Dean of Students, Rick Culliton, told John that the text messages John sent to Jane in December were a form of "sexual harassment," and he gave John a "no-contact" order.

John was immediately banned from student government meetings, and the proposal to abolish all-male fraternities passed by a 14-12 vote. In May, a friend of Jane's accused John of kissing her without her consent in September 2010, during the first week of John's freshmen year. Campus adjudicators rejected as irrelevant the fact that John's accuser had attended a formal dance with him as his date months after the alleged kissing incident.

At disciplinary hearings held in May, Wesleyan officials prohibited John from calling witnesses or having legal counsel. John had to write his account of the four-year-old kissing incident without knowing the charges against him. 

John was found guilty of violating Wesleyan's sexual harassment and assault policies. He was suspended for two semesters, weeks before he was supposed to get his diploma. One month later, John was fired from his job as a congressional staffer after his employer learned of his disciplinary record. "I cannot believe [Wesleyan made] me a symbol of fraternity power and rape culture for kissing," John said in an interview with BuzzFeed's Katie Baker.

Even supporters of affirmative admit that it violates due process rights. When asked how an innocent student could prove affirmative consent under the statute, Democratic assemblywoman Bonnie Lowenthal said, "Your guess is as good as mine."   

Ezra Klein, Editor-in-Chief of Vox, admits that under affirmative consent "too much counts as sexual assault" and that innocent students will be branded as rapists. Yet he supports it anyway because "men need to feel a cold spike of fear." New York's Jonathan Chait calls Klein's strategy of false convictions to strike fear into the innocent "a conception of justice totally removed from the liberal tradition."

When our legislators rescind due process protections in response to a moral panic, they seriously impair liberal education. Today, colleges and universities remain the only places in America that ban the procedural protections against arbitrary abuse of power that any just society should provide its members. Colleges and universities that govern by raw power and run roughshod over the rights of their students have lost their moral authority to form the kinds of virtuous, self-governing citizens that are vital to America's future.