When Yes Does Not Mean Yes March 29, 2016

By Susan C. Stone

In 2014, the State of California passed Senate Bill No. 967 into law, requiring California colleges and universities to adopt affirmative consent policies. While this concept is not new, having been implemented by Antioch College more than 20 years ago and added to The Ohio State University’s Student Code of Conduct in 2012, California is the first state to pass a law requiring affirmative consent though it may not be the last, as  affirmative consent policies on college campuses gain more support, including from the White House.

So, what is affirmative consent? Under California law, which is similar to most college campuses’ policies, affirmative consent is defined as an affirmative, conscious, and voluntary agreement to engage in sexual activity. Each person involved in the sexual encounter is responsible for ensuring that he or she has the affirmative consent of all others; this consent can be revoked at any time. Affirmative consent cannot be obtained if somebody’s belief in affirmative consent arose because he or she was intoxicated. Finally, to prove a violation of this policy, a college or university only has to show that it was “more likely than not” that affirmative consent was not given.

But, here’s the catch: these affirmative consent policies, often referred to as “yes means yes,” are not criminal laws. Instead, they are disciplinary policies for colleges or universities and violation of these policies could lead to suspension or even expulsion. Most colleges and universities have complex procedures and rules for investigations and disciplinary hearings, which although are not criminal, can often feel as so for the suspect. And depending on the college, a suspect may be allowed to have an attorney examine witnesses at hearing and cross-examiner the accuser.

The major issue with most affirmative consent policies is their ambiguity. What exactly is affirmative consent? How many times does one have to ask for it during a sexual encounter? Is an affirmative consent policy still violated if one of the parties revokes his or her consent during a sexual activity? The answers to these questions are not clear, so under these policies, a college or university could mistake an innocuous sexual activity for a serious allegation of sexual assault and punish a student accordingly. This is not to say that allegations of sexual assault should not be taken seriously, but that they need to be more clearly defined and disassociated with inoffensive sexual encounters. As one law professor expressed the dilemma college students face under these polices: “As things escalate, is he supposed to ask before each of the twenty, thirty, sixty steps? Nobody talks like that, not even lawyers.”

These policies may also implicate major constitutional issues and discrimination problems. While a person accused under these policies may not be subject to criminal prosecution, the accused’s academic freedom is at stake. Students who are suspected of violating affirmative consent policies face serious consequences including suspension and expulsion, which could mar their academic records. It is essential that these students have someone on their side to protect their rights. An education law attorney can ultimately help guide students through this process and ensure that their rights are protected.

A special thanks to Nicholas Oleski and Stephanie Wilson for their help writing this post.

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