The Hidden Perils of Affirmative Consent Policies

By Justin Dillon and Hanna L. Stotland (March 23, 2017 at 10:05 AM EDT) -- As Harvard alums who have represented dozens of students involved in sexual misconduct accusations on campuses nationwide, we read with concern the March 10 Crimson article revealing that Harvard College may adopt an affirmative consent policy in sexual misconduct cases. This would be a grave mistake.

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.

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