How ‘Affirmative Consent’ Laws Threaten Due Process

A few weeks ago, California Governor Jerry Brown signed into law the nation’s first “affirmative consent” law. When it was proposed back in June, I said the proponents were control freaks. The law essentially says that consent must be given, affirmatively and actively, for each act of a sexual encounter. In other words “yes means yes.” It sounds reasonable enough doesn’t it?

The law has already spread with lawmakers proposing similiar laws across the country. New York Governor Andrew Cuomo implimented the policy at the SUNY system of universities across New York with plans to incorporate it into state law. Lawmakers in Illinois, New Hampshire, and New Jersey have plans to introduce similiar legislation across the country.

While the lawmakers proposing the bills are all Democrats, the laws have found support in unlikely corners, social conservatives and even some libertarians. writer Conn Carroll supports the laws because he wants to discourage the “hookup culture.” Libertarian blogger Kelli Gulite argues that the laws clear up the “ambiguity of the existing consent standards.”

However, while the affirmative consent laws are a well-intentioned attempt to address a problem (rape), they ultimately do more harm than good, especially where civil liberties are concerned. These laws will result in (mostly) young men either being expelled from universities and/or charged with a crime they did not commit.

Here’s some reasons why affirmative consent laws are not the way to go:

1) Sets us on the road to “precrime”. One of the lawmakers proposing these laws for their state, N.H. State Rep. Renny Cushing state this “We need to change the dialogue and we need to start talking about prevention rather than have a legal concern about whether or not someone was capable of giving their consent.”

I’ve heard that before somewhere:

These laws will no more prevent rape than laws against hate speech will prevent murder.

2) It eliminates the presumption of innocence. The laws state that someone is guilty of rape if there was no yes. This will force the defendant to have to prove that there was a yes. That forces the burden of proof on the defendant, not the state and the university. The only logical way for a potential defendant to protect themselves from a rape allegation is to record the sexual encounter or some kind of proof that the encounter was explicitly consentual.

In other words, we’re right back to the problem these laws were trying to prevent “he said vs she said.” Under the reasonable doubt standard, that’s clearly not enough evidence on its own to force a conviction. However, in a campus proceding or a civil lawsuit, there is no reasonable doubt but only preponderance of evidence.

These laws codify the process of the campus-based procedings which have been criticized as essentially kangaroo courts that threaten the rights of the accused.

3) It will lead to the prosecution of boorish behavior and bad sex as rape. In her defense of these laws, Gulite wrote:

The best way to show why affirmative consent is a better standard than previous standards is through an example. Two students agree to have vaginal intercourse, but without warning or asking permission, the male student begins to have anal intercourse. Of course, the female could say no immediately after taking a few seconds to register what happened and the male could oblige. However, the sexual assault has already occurred.

Under the affirmative consent standard, the victim has recourse. Without it, she does not. (emphasis hers)

Perhaps I’m a caveman, but I fail to see a case for disciplining, suspending, or expelling the young man; let alone having him arrested and subjected to the legal process for essentially an act of boorish behavior. This particular example looks like something that should be best handled between the two of them without involving the university or the authorities.

If this woman has recourse under this example under affirmative consent, what about bad sex in general? Or if a woman regrets a sexual encounter the next day? We know false rape accusations happen, even if we don’t know what the exact percentage is. I fear this standard will just increase the number of them.

The road to hell, or the loss of liberties, is often paved with good intentions. The affirmative consent standards are an excellent example of this. We should resist the urge to “just do something” to address sexual assualt at colleges. We should also resist using the government to impose our own personal morality. All those will do is just lead to erosion of more liberties.


I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The and Rare. You can also find me over at the R Street Institute.
  • SABRMatt

    Some estimates have false rape accusation rates as high as 30%. That’s before it becomes law that you can nail any guy you want with whom you have slept just by claiming you never said yes. Lena Dunham now thinks she was raped after laughing about the notion when her roommate heard her story and told her that’s what she thought it was. It cheapens the seriousness of rape to call all sexual encounters that are less than contractually stipulated rape. It will just make it more difficult for well-meaning feminists to better educate society at large as to what not to do.

  • Sarah Baker

    I agree with you, Kevin. Affirmative consent does nothing to help sort out the truth where either the accused or the accuser is a criminal and/or willing to lie. All it does is turn misunderstandings and regrets into crimes. I want to put people in jail who intentionally rape other people. I think criminalizing something that amounts to “accidental rape” is a miscarriage of justice and reflects a statist notion that all life experiences that are less than ideal must be prevented via government.

  • Stephen Littau

    Just in case some readers think Kevin is being hyperbolic or paranoid, I can tell you that what he is describing has already happened. I wrote a post about one such example at United Liberty.

    Here’s just a quick summary;

    A freshman ‘John Doe’ and freshman ‘Jane Doe’ at Occidental College had a drunken hookup. Jane Doe decided later that she regretted hooking up with John Doe. At first, Jane Doe didn’t think what occurred was rape; a feminist professor convinced her otherwise. Despite an investigation by the LAPD concluding that Jane had insufficient evidence that John raped her, Occidental expelled John from school after the ‘process’ Kevin just wrote about rendered a finding of guilt (and last I read, hasn’t been able to go anywhere else due to this being on his record).

    They were both drunk. John Doe was responsible for taking advantage of a drunk ‘incapacitated’ female. As for Jane Doe – no responsibility whatsoever for doing the same. Read my post for more details. No reasonable person could ever conclude this was rape.