New York City officials want to require “affirmative consent” not just for sex, but for “sexual encounters” in general, at colleges in New York City, including private colleges, reports the Wall Street Journal. Since a lot of consent is not considered “affirmative” by supporters of such requirements (see this discussion of a similar law in California), the proposed “affirmative consent” ordinance will intrude deeply into students’ private lives, while doing nothing to prevent rape.
A prominent New York City criminal-defense attorney, Ron Kuby, said an affirmative-consent policy will likely help protect accused students by clarifying sexual boundaries. “From a criminal-defense standpoint I think it’s laudatory,” he said. “It may take the fun and spontaneity out of sex, but I don’t care. That’s for the kids to worry about.”
Kuby was a key player in the ironically-named Center for Constitutional Rights, whose founder, William Kunstler, an icon in the liberal New York legal community, once said that he didn’t believe in criticizing civil-liberties violations, atrocities, or gulags in communist countries like Vietnam, since that would undermine the progressive cause.
Contrary to Kuby’s misguided claim, the requirement won’t protect accused students. In fact, even if a student actually obtains “affirmative” consent to certain things, no one will believe him. The idea of a student asking for permission to do something like touch someone else’s intimate areas is so laughable that no one would believe he actually asked for it and got it (at least not anyone my age sitting on a campus disciplinary body – I practiced education law for years, and helped represent a private college, a state board of education and a local school board in litigation as well as students and faculty in other cases, in addition to working for the Education Department’s Office for Civil Rights).
If you were on a campus disciplinary body, would you actually believe a man who claimed he asked his girlfriend, “may I massage your clitoris?” or “may I touch your breast?” Few young people would ask such a thing for fear of killing the mood through sheer discomfort on the part of the previously-willing person that was asked such an awkward question. Given that reality, an adjudicator would tend to disbelieve a young man who claimed he explicitly asked his partner (since a randy young person would have powerful reasons not to ask a partner even about sexual contact that is likely to be wanted or welcome). Thus, even innocent students who comply with an absurd “affirmative” consent requirement for sexual touching are likely to be convicted.
Applying an “affirmative consent” standard beyond sex to sexual touching and sexual interaction is especially problematic. When it comes to intimate touching (which can give rise to sexual assault allegations), as opposed to penetration (which gives rise to rape allegations), obtaining affirmative consent in advance is both less feasible, and less believable, as I have previously explained. By contrast, it is believable that someone would ask for sex itself (which, if credited, could defeat a rape allegation), as opposed to intimate touching. Conversely, imposing an “affirmative” consent requirement does absolutely nothing for rape victims (victims of forcible penetration), since a person who lies about whether he committed rape will just lie and say the victim verbally consented.
In the criminal justice system, false allegations are relatively uncommon (although far from non-existent). But false allegations are much more common on campus, as even feminist adjudicators seem to find out once they end up adjudicating cases. Yale is very pro-complainant, requires “affirmative” consent, and suggests “verbal” consent is the preferred method of obtaining consent. But even its staunchly feminist adjudicators find many sexual harassment allegations (over half of the allegations at Yale processed in 2013) to be “unsubstantiated,” despite broad definitions of what is prohibited. Professor KC Johnson’s piece at Minding the Campus criticizes Yale for what he viewed as lacking concern for due process — linking to a 2013 Yale report summarizing the pending and completed cases involving sexual harassment or rape – since Yale proceeds based even on anonymous allegations, and a simple preponderance is needed for conviction. Campus conviction rates rose further in 2014, as colleges came under more federal pressure to expel accused people (and complainants recovered large amounts of money in legal settlements with colleges as a result), but Yale continued to record unsubstantiated allegations. (This is so even though campus officials often expel students even when the facts are murky. For examples of students expelled despite likely being innocent, see here, here, here, here, here, here, here, here, here, here, and here.)
In practice, these “affirmative” consent laws discriminate against people in long-term, monogamous relationships. California’s similar “affirmative” consent law effectively discriminates against people in long-term relationships, by saying in the language of the statute that a relationship can’t even be an “indicator” of consent “by itself.”
But a relationship, and a couple’s past consensual sexual activity, can shed crucial light on whether it is plausible that the couple later willingly engaged in the same kind of activity. For example, State v. Garron (2003) reversed a sexual assault conviction because the court had excluded much of the complainant’s overall “course of conduct over a six-year period” with the accused. Evidence relevant to whether she consented included her “repeated physical contact” with him, and her past “kisses” of him and “grabbing” his “derrière.” And even in contract law, where stricter consent requirements apply, consent or agreement can be inferred from the parties’ past relationship, such as their “course of dealing,” or “course of performance.”
Verbal or “affirmative” consent is more evident in fleeting sexual relationships than in long-term monogamous relationships. People explicitly negotiate with hookers and virtual strangers, as to whom there is verbal, “affirmative” consent (like a hooker and a john haggling over exactly what sex to engage in for what price, since one doesn’t want sex, and the other doesn’t want to pay). Such verbal discussion is often unnecessary among people in committed relationships, among whom it generally doesn’t happen regarding intimate touching.
The new California law and the proposed New York ordinance endanger people in committed relationships that later go sour even when the sex in question was enjoyed by both partners. Some campus sexual assault allegations happen because the accused stopped dating the accuser, or cheated on her during a long-term relationship. This law affects people in long-term relationships more than people in fleeting sexual encounters.
Intimates don’t “affirmatively” consent to many things, since there’s no need. My wife and daughter don’t ask for permission before hugging me, because I am not a stranger who might mind a hug. And my wife and I don’t explicitly discuss whether to have sex, we use euphemisms that only are an “indicator” of consent based on the prior history of our relationship — something the California law discourages considering.
Hans Bader is a senior attorney at the Competitive Enterprise Institute.