Affirmative consent rules governing sexual relations on school campuses have survived a lot of ridicule. When first adopted by Antioch College in the early 1990s, affirmative consent was fodder for a “Saturday Night Live” skit. Back then, the requirement that each participant in a sexual encounter request and receive explicit consent for virtually every move he or she makes was taken about as seriously as a Donald Trump presidential run. These days, no one’s laughing.
Adopted voluntarily by many schools and recently imposed by a pioneering California law on all private and public campuses in that state, affirmative consent is now considered a righteous, progressive reform. New York recently enacted the nation’s second affirmative consent law, in response to aggressive lobbying by Governor Andrew Cuomo and endorsements by Lady Gaga and House minority leader Nancy Pelosi, among others.
It’s unlikely that any students will consistently comply with the new rules, which are difficult to reconcile with the realities of sexual interactions, and, in any case, it’s unclear what compliance might entail. New York’s law requires “knowing [and] voluntary” consent, “given by words or actions . . . creat[ing] clear permission . . . to engage in sexual activity,” including any “intentional [sexual] touching, either directly or through the clothing.” Consent to any sexual act — or touch — may not be inferred from consent to prior acts, which means that consent should be repeated and ongoing. Is this law meant to be taken literally? Maybe.
“It’s a question of putting everyone on notice that they have to be in a consensual situation,” New York Assemblywoman Deborah Glick, told The New York Times. “It also sends a message to the institutions that they have to up their game on how sexual assault on campus is viewed and treated.”
What’s wrong with teaching students and administrators that “yes means yes”? Nothing, but affirmative consent laws are not teaching tools. They mandate punitive rules that operate like quasi-criminal laws on campus, posing serious risks of expulsion to students accused of not obtaining consent for every move or for acting on mistaken impressions of implied consent. Assault accusations will be relatively easy to sustain, especially under the minimal standard of proof now applied in campus cases. Disproving assault, by establishing scrupulous compliance with affirmative consent policies, will be much harder. How might a student demonstrate that he repeatedly obtained consent? “Your guess is as good as mine,” admitted California Assemblywoman Bonnie Lowenthal, who coauthored that state’s law.
When advocates of these laws acknowledge the difficulty of proving consent, when they praise regulations of alleged sexual assaults for “sending messages,” they’re implicitly endorsing discriminatory enforcement. Affirmative consent policies are not designed to govern every encounter. They’re designed to bring about findings of guilt, or responsibility when rape accusations are leveled — mainly against men accused of assaulting women.
Do female advocates of affirmative consent strictly comply with its mandates every time they “engage in sexual activity”? I suspect many would find the question either insulting or irrelevant. As a matter of law, the rules apply equally to both sexes and to same-sex as well as heterosexual relations. But in practice they aim to protect women from the predations of men.
That is the source of their popularity, but it could contribute to their downfall. Neither campus administrators nor activists will be able to rely on masculine and feminine archetypes in confronting alleged consent violations involving same sex couples or transgendered students. Sex and gender categories, mores, and stereotypes that automatically distinguish predators from prey are changing. Someday, male students will have the nerve to accuse females of failing to obtain consent in strict compliance with the rules. It will be bad for affirmative consent regimes, but good for sexual equality.
Wendy Kaminer is a lawyer and free-speech advocate.