A University of Pennsylvania law professor is arguing that “affirmative consent” or “yes means yes” policies should be used as a rule of personal conduct, but not a standard of liability in sexual assault accusations.
The professor, Paul Robinson, argued in the Chronicle of Higher Education that the debate over affirmative consent policies seems not to lie in the overall morality of the rule, but in using such rules to hold students accountable who don’t adhere to them.
“Most criminal-law theorists would point out that there is a crucial difference between what they would call in legal jargon an ex ante rule of conduct — that is, telling people beforehand what the law requires of them — and an ex post principle of adjudication — setting the rules by which a violation of the rules of conduct is to be judged,” Robinson wrote.
He argues that in order to change the culture in the way activists want, adopting affirmative consent as “a proper rule of conduct” will do more than the “divisive debates” currently happening. And he’s right, using the legal system to change the culture is dangerous, especially with affirmative consent policies, which mandate how people must engage in sexual activity. If either party (but most likely the man) deviates in any way from the rule, he is now a rapist, even though the rules are not practical.
The rules state that each party must obtain ongoing consent from the other for each sexual activity. In reality, this translates to an impractical question-and-answer-session whenever sex occurs.
Since nonverbal communication is too ambiguous for those who have written the policies, words are all that counts. Which means that if a man (they are almost always the accused) takes a woman’s enthusiastic participation as an indication instead of explicitly asking permission again and again, he becomes a rapist. And there’s no way for him to defend himself from an accusation, because it’s her word against his, and colleges and universities are under pressure to “listen and believe” accusers no matter what the evidence.
As Robinson notes, those seeking to change the culture are the ones who would be most helped by affirmative consent being a means of conduct but not liability.
“Ironically, it is the reformers seeking to change existing norms — such as the norms of sexual consent on college campuses — who would most benefit from a criminal law that has earned moral credibility,” Robinson wrote. “It is their reform efforts that are most injured when the law’s credibility is damaged by using affirmative consent as a standard when determining guilt.”
Telling people how to have sex in a way that is counterintuitive and unnatural and then punishing them for failing to have sex in that way will never improve the culture, as men and women will increasingly become distrustful of each other instead.
Ashe Schow is a commentary writer for the Washington Examiner.
