In states like California and New York, legislatures have passed laws requiring higher education institutions to use affirmative consent in their disciplinary decisions.
And administrators at many universities are currently debating whether or not they should also adopt affirmative consent policies; however, the choice is not that simple.
While affirmative consent laws have many supporters, there are also detractors that argue against adopting these policies. So, to help you decide what’s best for your school, let’s review points from each side.
Before we start, let’s take a look at the definition of affirmative consent and what it means for students on campus. According to The Affirmative Consent Project, “affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity.”
For students, it means that the person who initiates sexual contact must receive a clear permission from the other person before engaging in any sexual activity—and that consent must be ongoing throughout the sexual encounter.
The arguments against affirmative consent generally state that the laws don’t help prevent sexual assault, but instead, turn sexual activity into something to be fearful of due to the threat of accusation. They also argue that in the moment, it’s impossible to expect that students will always ask for consent during each stage of the encounter.
“Affirmative consent laws turn normal human interactions into sexual offenses. They establish a presumption of guilt and strip the accused of due process protections,” is the claim made by Robert D. Carle, professor of theology at The King's College in Manhattan.
Wendy Kaminer, a lawyer and free-speech advocate, wrote in the Boston Globe, “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.”
In an article for the New York Times, John F. Banzhaf III, a professor at George Washington University Law School, states: “There’s really no clear standard yet — what we have is a lot of ambiguity on how these standards really work in the court of law. The standard is not logical — nobody really works that way.”
On the other hand, supporters of affirmative consent argue that these laws and policies will do a lot to help prevent campus sexual assault. Instead of dictating how sexual interactions should go, the laws help students think more seriously about what they are doing. Additionally, the laws make it clear that silence or lack of resistance does not demonstrate consent.
“I spend a lot of time visiting college campuses and talking with students about sex and expectations. And nothing I teach them seems to give them more clarity and comfort than explaining the basics of affirmative consent,” is what Jaclyn Friedman, an expert on sexual health and sexual violence prevention, wrote in the Washington Post.
In Emily Van Duyne’s, an assistant professor of writing at Stockton University, article for Noodle, an education website, she stresses how affirmative consent can change the culture surrounding sexual violence, “it is possible that this kind of education might lead, eventually, to a paradigm shift wherein we think before we act, and we think of another person’s body, and pleasure, as sovereign, inalienable, with permission required.”
Madeline Diamond, a student at Bucknell University, wrote for Huffington Post supporting affirmative consent on her campus and made the point that, “It is fair to say that virtually all college students are aware of sexual consent from a "no means no" perspective. However, understanding the importance of obtaining definitive consent is necessary, especially within the social cultures of college campuses, many of which revolve around an alcohol-fueled hookup culture.”
Whether or not your university decides to adopt affirmative consent policies, it’s still important to teach students about your campus’s policies regarding consent and sexual assault prevention.