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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.”

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.

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  • UnCivilServant||

    Aaaand, there went all the comments

  • WTF||

    The skwerlz have risen early today.

  • Drake||

    Shaazaam!

  • ||

    Reason buries its mistakes in a small ditch.

  • WTF||

    I have it on good authority that BOOOSH! drove them into a ditch, and we're still recovering.

  • Drake||

  • UnCivilServant||

    So, they're Malthusians and want to drive down the surplus population?

  • WTF||

    The photo of the woman Director of Public Prosecutions is a fine illustration of the banality of evil.

  • Drake||

    Hey, since nobody is willing to have sex with her, nobody gets to have sex.

  • WTF||

    And any men who do have sex will be punished for not wanting sex with her.

  • straffinrun||

    I just rubbed one out to her picture and imagined her saying "No".

  • Loki||

    Careful, I'm pretty sure under some law somewhere that could be considered sexual assault. She didn't consent to your fantasy.

  • LemonMender||

    And reconstructing my comment:

    The rape conference was designed partly to address the long-standing gulf between rape allegations and convictions, as well as a variation between different forces in the way they deal with rape allegations.

    So, in other words, as long as anything short of 100% of rape allegations result in convictions, we cannot rest. And we can achieve that by replacing "he said, she said" with "she said. he said? Don't make me laugh: He doesn't get to say anything."

  • Drake||

    Evidence smevidence is what I say.

  • WTF||

    Exactly. It's some kind of weird reverse-sharia law. Any man can be automatically convicted on the mere word of any woman, proof and evidence not needed.

  • Drake||

    Imagine the dating a British woman and considering breaking up with her. It has to be terrifying. No wonder they drink so much.

  • MarkLastname||

    Trials are gay, just take the guy out back of the police station and blow his brains out.

    In 20 years that'll be a serious proposal.

  • Win Bear||

    “It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink.

    People have a free choice in how much they drink, and they should be responsible for the consequences of their drinking, whether it is passing out in the street, automobile accidents, signing a contract, or having sex. It's not society's job to protect you from the consequences of your irresponsible choices.

  • Notorious G.K.C.||

    I wouldn't go that far. If the woman can't consent because she's too drunk and/or unconscious, then having sex with her ought to be considered rape. I don't mean "loosened up" by alcohol, I mean literally incapacitated.

    I don't know what kind of rule the UK-ians are going to adopt, maybe it's stricter.

  • Loki||

    The current feminist push is for any drunken hookup, including sex where the woman is not incapacitated but just "loosened up" as rape under the theory that no woman anywhere would consent to sex with a man without being drunk. They're pretty much trying to criminalize heterosexual sex as much as possible. I used to think that was hyperbole, but now I'm pretty sure it's not.

  • Win Bear||

    I wouldn't go that far. If the woman can't consent because she's too drunk and/or unconscious, then having sex with her ought to be considered rape.

    Short of having a neurologist present, how are you going to determine whether a person is merely passive or too drunk? How is a sex partner going to determine that? And what purpose is served by doing so? Why should other people pay for the legal consequences (prosecution, police work, etc.) for someone drinking too much?

    What's so hard to understand about "don't drink yourself into a stupor or live with the consequences"?

  • cpmondello@gmail.com||

    yeah....and if she wears the color red that means she likes it hard up the butt!!!

    It IS societies job to protect those whose are vulnerable, like young drunk girls being taken advantage of.

    Let me guess...you are a conservative Christian!

    Well, when Christian gets killed in Iran, just for being a Christian, its their own fault because they chose to be a Christian in an area where they know there are consequences. So why do so may Christians in USA think one way about a young drunk girl who gets raped and a Christian who gets tortured and killed?

  • JeffreyinSandySprings||

    not a good analogy. A girl who consents or even encourages sex when drinking can turn around the next day and say that she was coerced. I've seen it happen when I was at college a long time ago and it is still happening.

    Big difference between a Christian missionary who makes a completely sober choice to go to a hostile land where he might face the consequences of his actions.

  • Ed Ucation||

    I have a feeling this is a ploy by women to ensure consistent orgasms. Guys, you are just gonna have to put more effort into it. If she is screaming "yes yes yes," you are in the clear.

  • Bardas Phocas||

    Don't touch that booby!

  • rudehost||

    This should be simple to fix. Have every male file charges with the university every time they have sex. After all he didn't give his affirmative consent. Flood the system and shut it down.

  • ||

    This should be simple to fix.

    One good orgy ought to do the trick. You think a kind, entrepreneurial-spirited business like Brazzers or Girls Gone Wild could put this issue to bed with a few vertical feet of paperwork.

  • MarkLastname||

    They would just change the law to make it gender-specific. The fig leaf of gender neutrality is one they care little about. Hence why we don't have a Violence Against People Act.

  • Dweebston||

    “a conception of justice totally removed from the liberal tradition.”

    In other words, an accurate description of modern liberalism.

  • Cyto||

    I scanned the Klein article... beyond the particulars the most worrisome thing about it is the underlying premise that "affirmative consent" is so utterly important to the culture that all other matters fall to the side. Including logic, reading comprehension and any acknowledgement of psychology.

    Make no mistake, "Affirmative Consent" is not what it pretends to be, and the people behind it are not motivated by the things they say they are motivated by. Rape has nothing to do with this argument. This is about crafting a powerful weapon to be wielded against their enemies.

  • ||

    What are they fighting over?

  • Cyto||

    This is a continuation of the PC "sexual harassment" initiatives of the 80's. At my first job after grad school we received mandatory sexual harassment training from an EEOC rep. She walked us through a series of video examples designed to help us identify workplace sexual harassment. (backed up by immediate firing if you ran afoul of the policies)

    After explaining "have sex with me or I won't give you a raise" was wrong, they moved on to other "hostile workplace" examples for us to identify. The last one was a casual conversation over the water cooler. A guy mentions that there is a party this weekend and asks a woman if she wants to go. She says no, and he replies with "Everybody's gonna be there, it should be a blast." to which she replies "no thanks, I"m busy".

    We were supposed to discuss each scenario and say if it was harassment or not. The last scenario was harassment (a fireable offense) because she said no and he asked again. Not a pattern of 50 times, but twice in one polite conversation lasting less than 15 seconds. Thankfully an older female coworker took up the cause and told the EEOC lady that she had lost her mind.

    Remember, this was our Federal government telling us how to behave at work - meaning our employer had to back these standards or face action from federal regulators.

    You want to know where "Affirmative Consent" is headed, just look back at "hostile work environment".

  • Win Bear||

    And people wonder why men don't talk to women at work anymore, and why women have such a hard time getting ahead.

  • Don'tTreadOnMe||

    ....or laid.

  • R C Dean||

    No shit, Win.

    One of the women I work with complimented a female colleague on her outfit recently. We were all kind of in the same hallway conversation, and there was a space in the talk for me to also offer a compliment.

    What I said was, "You know, I'm really not allowed to comment on, or even notice, what women are wearing around the office." Rueful chuckles and nods all around.

  • Notorious G.K.C.||

    Hey, I watched the sexual harassment training video, and it war great! The actors seemed so excited!

    At least I *think* it was a sexual harassment video, I may not have been specific in my Googling.

    /paraphrase of Wally from Dilbert

  • MaleMatters||

    Good comment.

    You may like:

    "The Sexual Harassment Quagmire: How To Dig Out" http://malemattersusa.wordpres.....-quagmire/

    It's a detailed look at what I think is the sexes' most alienating and destructive behavioral difference, which is responsible for much of what is called sexual assault of women.

  • Vincent Milburn||

    If neither party gave affirmative consent, who raped who?

    I guess we are presuming that only men can rape women.

  • Vincent Milburn||

    Maybe they could both be charged for co-rape.

  • Fairbanks||

    I've been wondering about that since this idea was proposed. I've yet to see it addressed. Does anyone know?

  • Marshal||

    The difficulty of defining incapacitation and consent was underscored last week when Dean Wasilolek took the stand. Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex.

    "They have raped each other and are subject to explusion?" Hitch asked.

    "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek.

    http://www.indyweek.com/indywe.....id=4171302

    Whoever "interprets" the rules controls the outcome.

  • MarkLastname||

    Remember, all they want is equality...

  • MaleMatters||

    But check this out:

    At Male Matters USA, search for:

    "A rape epidemic -- by women?"

    At Salon.com, search for:

    "When the rapist is a she"

    At psmag.com, search for:

    "When Women Sexually Assault Men"

  • Win Bear||

    I don't have a problem with private universities making rules about sex on campus; any private institution should be free to make such contractual agreements as a condition of attendance. I think many parents might well choose a college with a strict "no sex" policy.

    The problem with the administration's policies is that the federal government massively subsidizes education with tax dollars and then uses control of those subsidies to impose a particular social vision on the entire country.

  • Rasilio||

    Saying they have the right to make any rule they want is one thing.

    Criticizing the rule as being stupid is something completely different

  • Win Bear||

    But this rule isn't just a stupid rule between private consenting parties, it is, in fact, imposed by government on institutions that everybody is forced to pay for.

  • Don'tTreadOnMe||

    I think the obvious solution is to video all sexual encounters and send them to the administration for review.

  • Notorious G.K.C.||

    Well, it would lure more people into working for HR.

  • Eggs Benedict Cumberbund||

    Prog-topia

  • MonsPubis||

    “men need to feel a cold spike of fear." Again, emotionally driven policy that was poorly thought out and clearly uses no evidence to support his claims on why the policy should be enforced in the first place. But in all honesty, what do you expect from progs...

  • Jack Strawb||

    True. Progressivism ran out of honor as it increasingly adopted the tactics of the right.

  • DEG||

    I haven't read the article yet. I see the headline:

    Robert Carle on How Affirmative Consent Threatens Liberty

    My first thought was: That's the point.

  • Loki||

    Affirmative consent laws turn normal human interactions into sexual offenses. They establish a presumption of guilt and strip the accused of due process protections...

    This is a feature not a bug, you'd know that if you weren't a filthy MALE GAZING MYSOGYNISTIC RAPE APOLIGIST!!!11!111!!!!!! /sarc

    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.”

    I love it when these assholes let the mask slip, it tells you who they really are. The charge that the left really just wants to criminalize their hated opponents is not hyperbole, it's fact. They pretty much admit to it. How will innocent people be able to prove their innocence? "Who cares, so long as we can turn as many men as possible into criminals and make the rest afraid to speak up for fear of being accused of sexual assault." Fuck you Bonnie Lowenthal, and fuck you too Ezra Klein, you fucking left-tard douchenozzles. I hope you both get Lou Gerhig's disease.

  • MarkLastname||

    With that comment, Klein went from garden-variety idiot to Otto Weiniger-style bigot and piece of shit in my book. If I ever meet him, I'll spit in his face, I don't care if it's a crime.

  • Azaz||

    F.u.c.u. Fornication under consent of university

  • Rebel Scum||

    Even supporters of affirmative admit that it violates due process rights.

    Surely they will come to their senses and reverse their positions after experiencing this stunning revaluation.

  • Rebel Scum||

    revelation*

  • MarkLastname||

    Admit? They don't 'admit' it. Violating due process was the whole point of the law, they brag about it.

  • JeffreyinSandySprings||

    of course affirmative admit does. But since when has the constitution meant anything when it interferes with a liberal achieving his goals.

  • Rasilio||

    Hey this could be a good thing.

    Take a bunch of smart college guys and make it basically illegal for them to have sex with women and we'll have fully functioning sex bots in less than a decade.

    Then where will those feminists be?

  • Ketogenic Paleo||

    Not just guys but lesbians with psychotic exes too. /unintendedconsequences

  • buybuydandavis||

    “men need to feel a cold spike of fear.”

    Men vote republican. They need to be disempowered.

  • buybuydandavis||

    "any student who cannot prove that he obtained ongoing"

    Was it literally written into the policy that penises are evil, or did they at least pretend the policy was gender and preference neutral in the language of the policy?

  • Empress Trudy||

    I like the idea of wrapping all women in an electronic cyborg suit that can only be incrementally unlocked when she gives out the code for the component and only that component. That way there's finally no ambiguity about he said she said. He asked and she provided the unlock code. The problem will be of course when women then demand an instantaneous unilateral RE lock code. But I imagine that's an engineering problem can be solved eventually. AND just to be sure, the system would monitor the woman's real time blood alcohol level or drug level to make override decisions based on the level of intoxication of the woman. If the system deems she's not sufficiently sober to render a good solid judgment then the unlock codes would be disabled.

  • CN_Foundation||

    Universities that violate due process have become morally bankrupt and should not be trusted to teach our youngest ADULTS who are not quite children but are not wards of the State and are not wards of these Universities.
    https://en.wikipedia.org/wiki/In_loco_parentis
    First, it allows institutions such as colleges and schools to act in the best interests of the students as they see fit, although not allowing what would be considered violations of the students' civil liberties.

  • Win Bear||

    Can we have "affirmative consent" for getting screwed by government agencies? Like taxes, zoning boards, police? Now that's an "affirmative consent" I could get behind.

  • MarkLastname||

    So if I get into a taxi, and initially consent to being driven across town, but suddenly decide I don't want to, but, petrified with fear of the scary brown taxi driver, stay silent until reaching my destination, has the taxi just kidnapped me? Because of the lack of continuous affirmative consent? Or if I get into a cab while drunk, is the driver not robbing and kidnapping me, according to affirmative consent law?

  • BambiB||

    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.

    So be sure to video record all your sexual activities. No telling when some womyn will want to see herself getting boinked on a 52-inch courthouse video screen.

  • MaleMatters||

    Even videos won't help. A woman who is out for revenge will simply say, "I knew he was videoing. He told me off-camera to act it up or else."

    You must understand that the objective of "Yes Means Yes" is not to prevent sexual assault but to prove women are victims and to punish men regardless of the reason.

  • BambiB||

    Guess men have to band together to shut women out. Completely.

  • MaleMatters||

    Which is a shame.

    I sincerely believe it all could have been so very different -- so much better -- between men and women. There's still hope. See:

    "The Sexual Harassment Quagmire: How To Dig Out" http://malemattersusa.wordpres.....-quagmire/

    It's a detailed look at what I think is the sexes' most alienating and destructive behavioral difference, which is responsible for much of what is called sexual assault of women.

  • ||

    Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
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  • Edwin||

    why is no one commenting on one of the biggest things in the article, that the government at Wesleyan used these laws to kick an opponent out of a vote to get their way?

    How fucking despicably corrupt is that? How is no one suing the school?

  • MaleMatters||

    No one seems to want to recognize what's occurring on campus: a movement that is an astonishing, brazen act of anti-male sexism and discrimination.

    All born of politicized feminists' successful campaign to promote men as rapacious beasts and women as ever-innocent lambs.

    Do not take your anger out on the everyday woman, only on the campus femists (female AND male) who push the sexism.

    To see how incredibly wrong the sexism is:

    “The Doctrinaire Institute for Women's Policy Research: A Comprehensive Look at Gender Equality” www.malemattersusa.wordpress.c.....-research/

  • MaleMatters||

    I truly hate even to think this after reading about the Wesleyan University student who filed a complaint:

    Did the WU prepare him, as well as some of the male students who learned of his experience, to become our next mass killer? Re-read what the university did to him, this time putting yourself in his shoes. Scary. When a rigged system takes away everything from a man who now has nothing, what does he have to lose?

    I sincerely believe it all could have been so very different -- so much better -- between men and women. Maybe there's still hope. See:

    "The Sexual Harassment Quagmire: How To Dig Out" http://malemattersusa.wordpres.....-quagmire/

    It's a detailed look at what I think is the sexes' most alienating and destructive behavioral difference, which is responsible for much of what is called sexual assault of women.

  • Robert Riversong||

    For a picture-perfect previous of what Yes Means Yes really means in practice, see: Campus Sex Under Affirmative Consent - video

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