Cathy Young is a contributing editor to Reason magazine.
New York State's "Enough Is Enough" law, under which colleges must use an "affirmative consent" standard in evaluating sexual assault complaints, officially goes into effect in less than a month.
Gov. Andrew M. Cuomo praised the legislation the other day in an address to New York University students. "Every woman should know . . . they have more rights than they had before," Cuomo said.
Meanwhile, two federal courts in Virginia and in Tennessee have recently held that the affirmative consent standard violates basic constitutional rights by shifting the burden of proof and requiring the accused to prove innocence.
The two rulings were issued in early August in lawsuits by male students claiming each was wrongfully expelled on a sexual assault charge.
The details in the Virginia case, in which a former student is suing Washington and Lee University, show on what ambiguous evidence students, nearly always male, can be penalized in the current system.
The plaintiff, "John Doe," and his alleged victim had sex after meeting at a party. The woman admitted that she initially saw this experience as consensual and told friends she enjoyed it; she remained friendly with Doe and had sex with him again a month later.
It was only after a summer of working at a women's clinic that dealt with sexual violence -- and after learning that Doe was seeing another woman -- that the female student began to believe their first encounter was a sexual assault because she had been too drunk to give valid consent. The evolution of her feelings was aided by a therapist; she was also influenced by a talk by Washington and Lee's Title IX investigator arguing that women's gray-area sexual experiences should be regarded as rape.
When the young woman found out that she and Doe would be in the same group studying abroad, she decided to file a complaint within the university. Doe, who was denied a chance to consult an attorney, was found "responsible" by the university because he could not prove his accuser consented.
Even as laws and regulations embracing affirmative consent proliferate, both judges and legal scholars -- many of them women -- express concern that this standard runs fundamentally counter to the presumption of innocence. To compound the problem, no one seems to know exactly what constitutes a "knowing, voluntary and mutual decision" to have sex, as required by the New York law, or what evidences such a decision.
The law states that "consent can be given by words or actions" expressing clear agreement to sexual activity. Yet in actual campus hearings, actions such as kissing a partner who initiates sex have been treated as insufficient. And consent workshops on campuses teach male students to perform periodic "Are you sure this is OK?" checkups during sexual activity -- which seems to reflect a stunningly patronizing assumption that a woman cannot say no without prompting from a man.
The issue of alcohol is equally murky. We can all agree that an incapacitated person cannot consent to sex; but does intoxication invalidate consent even if someone can walk, talk and text? Some colleges essentially openly embrace a double standard in which, if a man and a woman are equally intoxicated, only the man is responsible. Cuomo's remarks, which presume that all victims of sexual assault are women, suggest the same.
Yes, campus sexual assault is a real problem. However, affirmative consent gives us sexism masquerading as feminism and denial of due process masquerading as student rights. Enough is enough, indeed.