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Affirmative consent is like communism: ‘great in theory, a disaster in practice’

We know today’s college students are fond of (their imagined version of) socialism, so comparing their favorite method of having sex to the political system responsible for the 20th century’s greatest atrocities may not work.

But Harvard alumni Justin Dillon and Hanna Stotland are going to try anyway.

The defense lawyer and Title IX consultant wrote a joint op-ed in The Harvard Crimson, warning students about the “hidden perils” of affirmative consent, also known as “yes means yes.”

The Harvard administration has thus far resisted student demands to impose the sexual-consent standard – which functionally flips the burden of proof onto the accused – but a Title IX review committee is now weighing whether to mandate it.

The school currently uses a standard known as “unwelcome conduct” that its first universitywide Title IX officer couldn’t explain. (She’s now enforcement director of the Department of Education’s Office for Civil Rights.)

As alumni who have “represented dozens of students involved in sexual misconduct accusations on campuses nationwide,” Dillon and Stotland say they were alarmed by Harvard’s belated consideration of affirmative consent:

The main problem with affirmative consent policies is that they don’t match how people have sex in the real world, including on college campuses. …

Requiring verbal consent seems that it would simplify proof in sexual assault accusations, but it doesn’t. We have seen multiple cases where the complainant acknowledged that they said yes, but claimed that they did not mean it, or that they non-verbally withdrew the consent later. The accused was found responsible for sexual assault in these cases.

Requiring verbal consent is also patronizing. In our day, “no” meant “no,” and we assumed that everyone was capable of speaking the word during an encounter. To our minds, it is decidedly anti-feminist to tell non-incapacitated, sexually active adults that they lack the agency to say no, which is what affirmative verbal consent policies do.

This brings us to consent through actions. This is where, as most communist nations eventually discovered, what sounds great in theory can be a disaster in practice.

The duo asks students to imagine how they would demonstrate they had “unambiguous consent” after the fact:

How did you know the other person wanted to [have intercourse]? What one thing would you be able to point to? …

If you point to any one thing and say that’s what made me think I had consent, you’re going to be found responsible for sexual misconduct. That’s because most sexual misconduct policies explicitly say that consent for one sexual act does not imply consent for another sexual act. …

The problem is that consent through actions is all about context. It’s not any single thing, especially when the participants are in a romantic relationship.

And when college adjudication panels get involved months later, “in our experience,” universities “default to punishing the accused”:

The practical result is that the affirmative consent policy allows any student to get his or her former sex partners expelled or suspended.

Read the op-ed.

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