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. Townhall.com 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’m not quite sure what the cultural changes this law will bring. I fear this standard will increase the number of false accusations, though many of these may just be a case of confusion over the law. A different kind of change that may come from this law is that more men and women are drawing towards the likes of a sex doll as there is no confusion on the law when it comes to something like that. Perhaps what we need to do is simply educate men and women in how to be responsible in a sexual encounter. That could lead to less confusion on consent and the amount of accusations.
The road to 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 assault 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.