Dallas Morning News
8.21.15
On both coasts, initiatives have sprung up to adopt policies on college campuses — and, eventually, state laws — that make “affirmative consent” the standard for determining whether an encounter between two people amounts to sexual assault.
Most recently, New York last month enacted a law requiring all public universities to define affirmative consent as “knowing, voluntary and mutual decision-making among all participants to engage in sexual activity.” California previously passed such a law.
While affirmative consent laws are seen in some quarters as needed reform, they’re ridiculed in other quarters as needless and unenforceable. So, do we need more laws requiring college students to mutually consent to sex?
No: This approach is unreasonable and unworkable, says Samuel R. Staley
Rape is inexcusable and deserves to be discussed seriously, but the current nationwide push for so-called yes means yes laws is likely to cause more harm than good.
In brief, a “yes means yes” law puts into state statute a legally binding requirement that all parties involved in a sexual encounter demonstrate an “unambiguous, affirmative and conscious decision” to engage in voluntary sexual relations, to quote California’s legislation, which passed last year.
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Yes: Colleges fell behind in protecting women, says Belinda Guthrie
The pendulum has swung in this direction in response to higher education’s failure to effectively address sexual assault and society’s growing intolerance of sexual violence.
California and New York recently passed pieces of legislation that require public and private colleges and universities to adopt comprehensive sexual violence policies and procedures that include an affirmative-consent standard.
Policies not based on this standard require evidence of force or resistance by the complainant in order for a college or university to conclude that consent was not sought or obtained.
In contrast, consent-based policies define what consent is — mutual, active, knowing and voluntary — rather than what consent is not, such as that which is passive or ambiguous or obtained by force, coercion or the result of incapacitation from alcohol or drugs.
California’s and New York’s campus sexual assault laws recognize that consent may be given by words or actions, as long as those words or actions clearly express the person’s willingness to engage in the sexual activity.
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