The affirmative consent standard is a bad one for college sexual assault trials—in combination with the preponderance of evidence standard and lack of due process protections, it creates a scenario where the accused is essentially presumed guilty unless he can prove his innocence.
But is merely teaching affirmative consent so bad? In an op-ed for The Orange County Register, I argue that a new California law requiring high schools to educate teens about affirmative consent might pass muster:
If schools teach students that sex is illegal without affirmative consent, then this law is a bad idea. But as long as schools treat the affirmative consent standard as an aspirational goal – one should strive for clearer communication of sexual expectations, even when not explicitly required – rather than a license to restrict students' rights or scare them away from the idea of ever having sex at all, SB695 could work. Better education could, in theory, curb sexual assault rates on college campuses by fostering a generation of teens more likely to ascertain ironclad permission before they have sex.
Teaching affirmative consent and requiring evidence of affirmative consent are two different things, however:
It's all well and good to teach teens that clearly articulated consent is the goal. But expelling students who have been denied their constitutional rights and have no way to prove their innocence isn't a recipe for a culture of healthy consent.
Read my full op-ed here.