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Jason Stotts

Re-blogged post: Affirmative Consent and Due Process

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by Jason Stotts

Affirmative consent is an idea sweeping the country. For example, look at this Inside Higher Ed article:

When students at Indiana University at Bloomington are asked to describe consent, they can often recite the lyrics from a student-written musical.

“Consent is unmistakable … it’s often verbal … it’s uncoerced … it’s freely given … and if you’ve got those things together, that’s consent! Consent … whoa consent!” (The full lyrics of the song are at the bottom of this story.)

And as college campuses across the country adapt to a culture — and legislation — calling for affirmative consent and “yes means yes” policies, freshmen orientations are often just one touch point for a larger conversation about sexual misconduct policies across campuses. Many colleges are adding programming or are revising past education on sexual assault prevention to focus on teaching the ideas behind affirmative consent, although some institutions already had relevant programs in place.

It sounds innocuous enough. In fact, prima facie, it sounds like a great idea. Consent is a good thing, so we should make sure that people are freely giving it and giving it explicitly so that there can be no misunderstanding.

So, what’s the problem?

Well, for one, it violates one of the most foundational principles of US Law: the principle of “innocent until proven guilty.” It violates due process and the idea that the accuser (often the State) must show that a crime has been committed. The alternative to this is that you must defend yourself from charges by showing that no crime has been committed. But, consider, how can you show that nothing has happened?

Thankfully, courts are starting to rule that this idea of affirmative consent is illicit and are overturning convictions based on it. For example, in the recent case of Corey Mock in Tennessee that Reason did a good job covering.

Problematically, there are now two states, California and New York, that have affirmative consent laws on the books and many other colleges and universities are pushing to implement them. So, this issue is far from dead. In the coming months, we’re going to start seeing this in the news more as people are unfairly convicted under these laws and their cases head to the courts.

For my own part, while I want to encourage discussions about consent, I don’t think that affirmative consent laws are the way to go and due to their violations of some of the most important principles of law.

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