Wednesday, March 22, 2017

The shortcomings of affirmative consent policies

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. They are a classic example of policies that sound good in theory but break down in practice.

After all, isn’t it important that people make sure that they have consent for sex? How could it be bad to codify that requirement in the clearest possible terms?

The problem is that what seems clear in principle is often decidedly less so in practice. Most affirmative consent policies, for example, say that consent may only be expressed through unambiguous words or actions. On its face, that is clear enough. Expressing unambiguous verbal consent only takes one word: “Yes.”

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. ...

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.

What does unambiguous consent through actions look like? Consider, for example, the last time you had intercourse without verbal consent. How did you know the other person wanted to do it? ...

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. So if you say, “I thought because she put my hand on X, she wanted Y,” you’re toast. ...

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. ...

But universities, in our experience, default to punishing the accused in these ambiguous cases. Breaking down how consent-through-actions was communicated, in the cold light of a conference room months or even years later, is impossible. The practical result is that the affirmative consent policy allows any student to get his or her former sex partners expelled or suspended.
--Justin Dillon and Hanna Stotland, Harvard Crimson, on a failure of social engineering