‘Affirmative Consent’ blurs the lines between consensual sex and sexual assault on campus

Sexual Assault on Campus

When it came to educating young people about respecting personal boundaries, the rules were very simple and generally easy to understand: no means no. This was particularly true when it came to teaching young men that when things were getting ‘hot and heavy’ with someone they were making out with that if the woman at any point said ‘no’ it was time to back off (and perhaps should take a cold shower once he got home). For as long as I can remember, society was ‘teaching men not to rape’ to coin a phrase.

The ‘no means no’ standard was by no means a perfect standard. Sometimes the ‘no’ would have to come after the man successfully kissed the woman or tried to progress to the next level. Some women ‘froze’ and were unable to verbalize or otherwise communicate to her date she didn’t want to progress to the next level and would regret the encounter. And despite all the best efforts to teach men no to rape women, a small percentage of men raped women anyway.

Enter Affirmative Consent

University campuses have come under fire for not treating sexual assault/rape seriously enough. Feminists have been successful in having universities adopt a new standard called ‘affirmative consent’ a.k.a ‘yes means yes.’ California recently passed a law requiring all of its campuses to adopt this standard. This is a paradigm shift on the meaning of consent to ‘affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.’ The law also states that drunkenness is not a legal defense for failing to receive consent.

Critics of affirmative consent say this standard is too ambiguous as consent must be given at each and every stage of an encounter. Because consent can be either verbal or nonverbal (as most human communication is), this leaves too much room for misinterpretation. Could a college coed decide to withdraw consent after the fact? How is one to protect himself, require some sort of contract where both parties sign each act? (There was an iPhone ap in the Apple store called ‘Good2Go’ created for this purpose but has since been shut down).

Also, universities hold their own proceedings concerning this policy and turns due process on its head; the accused has to somehow prove s/he did receive consent at each stage of the encounter. Instead of innocent until proven guilty, a university board has to determine if the accuser is 50.01% more likely than not telling the truth. If the accused is found guilty s/he faces expulsion which will remain on his or her permanent record (making it difficult to go to another university).

Progressive feminists think these concerns are overblown. They say false accusations of rape are about 2% - 9% at most (though A Voice for Male Students say false accusations of rape are more like 45%; I’ll leave it to readers to determine what the truth is). Whatever the real statistic is, students accused of sexual assault deserve due process just like anyone else. Under this standard, its way too easy to railroad innocent individuals.

Occidental Rape

Lest anyone think that this is all hypothetical and hyperbolic, allow me to present a case which has already occurred at Occidental College. The Foundation for Individual Rights in Education (FIRE) has been at the forefront of this case (case materials can be found at this link). Here’s a summary of undisputed facts:

  • John Doe and Jane Doe, both freshmen and both minors drank to a point of intoxication. All the drinking was voluntary, neither party was drugged or forced to drink.

  • At some point in the course of the night, Jane Doe went to a party in John Doe’s dorm.

  • Concerned, a couple of Jane Doe’s friends observed Jane taking her top off and visibly intoxicated. They eventually removed her from John Doe’s dorm room and took her back to hers.

  • At 12:31 a.m. John sent Jane a text message which read: ‘The second you’re away from them, come back.’ Jane responds ‘okay.’ As Jane mentioned that she was trying to get her friends to leave, at 12:37 a.m. Jane texts ‘do you have a condom’ John replies ‘yes.’

  • The text conversation continues as Jane sneaks her way back to John’s room.

  • At 12:20 a.m. Jane sends a text message ‘I’m wasted’. At 12:40 a.m. she texts the same friend in two separate messages ‘the worlds moving’ and ‘I’mgoingtohave sex now’ [sic]

Interestingly, neither John nor Jane actually remembered having sex (though Jane remembered performing oral sex on John; John didn’t even recollect that much) and the only reason they know for sure was because John’s roommate walked in on them in the act.

In the days that followed, Jane didn’t feel good about how she lost her virginity. She sought council from Prof. Danielle Dirks, co-founder of the school’s Sexual Assault Coalition. Jane was reluctant to call the drunken hook up a ‘rape’ until Dirks convinced her otherwise. Dirks also suggested that “[John Doe] fits the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was from a good family…” (I thought profiling was supposed to be a bad thing!)

With the encouragement of Prof. Dirks, Jane went to the LAPD to press criminal charges against John Doe. The LAPD, however; did not find sufficient evidence to charge John Doe with a crime concluding:

Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment.

I Interviewed the victim regarding the facts of the case. I explained to her the definition of PC 261 (a)(3) and the lack of evidence as to certain elements. Specifically the facts show the victim was capable of resisting based on her actions […]. More problematic is the inability to prove the suspect knew or reasonably should have known that she was prevented from resisting if she was in that state.

John Doe was cleared of the criminal charge but this didn’t stop Occidental from expelling him based on a much lower standard of proof. Even though both John and Jane were drunk and neither remembered having sex, John alone bears all of the responsibility while Jane bears none.

John Doe is suing Occidental partially on this basis:

In fact, there was no sexual assault, no non-consensual sexual contact, and no violation of Occidental’s Policy and the findings and sanctions are invalid. Indeed Jane Doe perpetrated exactly the same conduct against John Doe when she went back to his dorm room and performed oral sex on him while he was intoxicated and had sexual intercourse. John Doe being expelled because he is male; Jane Doe is not because she is female.

State of the Union on Consent and “Rape Culture”

So what can we extrapolate from this case as the current state of consent? Are we now at place where John Does are fully responsible for his conduct while Jane Does have no responsibility whatsoever for her conduct? Whatever happened to the notion of equality the progressive feminists claim they want? This notion is both insulting and it infantilizes women.

And yes, I get it - I hope all young men get it, that if a woman is wearing skimpy clothing (or no clothing for that matter), is incapacitated, or unconscious she is not ‘asking for it.’ But to suggest that encouraging women to drink responsibly (if they choose to drink), should learn self defense (as Ms. Nevada did and got lampooned for it), or should carry a gun (nothing says ‘I don’t consent’ like a 9mm in the face) in no way supports the ‘rape culture’!

We are told ad nauseum by progressive feminists that we should ‘teach men not to rape’ instead. The truth is that we have been teaching men not to rape at least for a few generations now and most of us do not rape. There are still men (and women!) who do for whatever reason. Perhaps its for the same reason some people steal and murder; I doubt its a lack of education (and yet we still tell people to lock their doors and/or install alarms on our homes but no one suggests we are supporting the ‘theft culture’).

A Brave New World for Young Men

For those of you who have young men who are college-aged or soon will be, its up to you to educate them on this subject, however uncomfortable. This affirmative consent standard and these college kangaroo courts seem to be the reality for the time being. As we try to roll back these policies it’s important for young men to know what they are getting into in the current system. If there are any policies young men should take seriously, its knowing the ‘rules of engagement’ before even thinking about hooking up.

As for the attractive coed pursuing a womyn’s studies major? She’s not worth the trouble.


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