“Affirmative consent” rule on campus sexual assault makes its way to North Carolina

The national hysteria over sexual assault on college campuses is approaching a frightening crescendo. Cheered on by feminist groups, left-leaning political activists, and rape victim advocates, politicians and campus officials are rushing to “do something” about this “crisis,” even if that means ignoring data that undermine their claims and trampling students’ due process rights.

Two North Carolina schools—UNC-Chapel Hill and Duke University—have joined the crusade. The universities recently adopted policies closely mirroring California’s controversial “Yes Means Yes” law, signed by Governor Jerry Brown in late September. That law requires students at state-funded universities to obtain “affirmative, conscious, and voluntary agreement”—a clause often shorthanded as “affirmative consent”—before and during a sexual activity.

At Chapel Hill, a campus task force led by Christi Hurt, the university’s assistant vice chancellor and chief of staff of student affairs, unanimously voted in favor of an “affirmative consent” policy described by commentator Hans Bader as “breathtakingly broad.”

The new definition states that consent “requires an outward demonstration, through understandable words or actions, that conveys a clear willingness to engage in sexual contact.” The policy stresses that consent is “not to be inferred from silence, passivity, or a lack of resistance, and relying on non-verbal communication alone may result in a violation of this Policy.”

Like the California law, Chapel Hill’s and Duke’s policies impose an extremely vague and unrealistic standard that is out of step with the way our culture views and engages in sexual activity. Under the new rules, for example, hugging could be construed as “sexual contact.” Without first receiving a definitive “yes, you can hug me” from his or her partner, an individual could be charged with sexual assault.

Furthermore, the standard states that consent “is not to be inferred from an existing or previous dating or sexual relationship.” If a couple gets in a verbal fight and emotions flare, one ill-considered call to the campus police could set in motion the destruction of the educational and career prospects of the accused.

UNC-Chapel Hill and Duke are not alone in their mimicry of the California standard. New Hampshire and New Jersey lawmakers are debating legislation modeled after the Golden State’s “Yes Means Yes” law. The State University of New York’s 64 campuses now follow a uniform “affirmative consent” policy, which New York Governor Andrew Cuomo says he’d like codified at the state level. And Chicago Mayor Rahm Emanuel has introduced a “Sexual Assault Victim’s Bill of Rights” ordinance proposal, which also contains “affirmative consent” provisions and would apply to all colleges and universities in the city.

Students attending universities with the new standard may have much more than vague policy language to worry about. That’s because their due process rights are under attack by convoluted adjudication procedures that favor complainants and render accused students’ attorneys ineffective.

At UNC-Chapel Hill, as Brooklyn College professor KC Johnson notes in this Minding the Campus piece, the administration can “brand a student a rapist even if both [an investigator] and [a] three-person panel independently determine that the accused student is not in any way culpable,” an absurdity that Johnson calls “triple jeopardy.”

Equally troublesome is that university investigators don’t have to share evidence with the accused student before a hearing, meaning that the presentation of “exculpatory material” is thwarted. And the accused’s lawyer can’t cross-examine the accuser at hearings; he or she can only “submit questions to the hearing chair, which can ask the question, modify it, or refuse to ask it.”

Such violations extend beyond the Tar Heel State. On Wednesday, 28 members of Harvard Law School’s faculty issued a statement condemning the university for its new sexual harassment policy. The professors claim that the university’s procedures “lack the most basic elements of fairness and due process” and are “overwhelmingly stacked against the accused.” The law professors say the administration kowtowed to the federal government, “which has threatened to withhold funds for universities not complying with its idea of appropriate [policy].”

Indeed, the pressure from the federal government has escalated over the last couple of years. Much of it comes from a surge in federal complaints relating to universities’ botched sexual assault investigations and inadequate responses to rape incidents.

One prominent complaint, which gained national attention in 2013, came when UNC-Chapel Hill students accused the university of failing to investigate sexual assault claims and underreporting assault statistics.

In August of this year, the U.S. Department of Education released the names of 76 universities that had allegedly “mishandled” sexual assault cases and shirked federal laws. Obviously, no university wants to be on that list or under the federal microscope. If an institution can take preemptive measures to avoid public disgrace and elude the government’s tangled web of rigmarole, that’s what it will do.

President Obama and Vice President Joe Biden, who is at the helm of the White House Task Force to Protect Students from Sexual Assault, are the figureheads of a regulatory blitzkrieg aimed at curtailing the alleged epidemic of collegiate sexual violence. Earlier this year, the task force issued a “checklist” for universities that includes “ideas a school could consider in deciding what is—or is not—consent to sexual activity.” Hence the “Yes Means Yes” mania now sweeping the country.

A major reason for that mania is the dissemination of a doubtful statistic, trotted out repeatedly by the Obama administration, federal bureaucrats, and sexual assault reform advocates. It’s that one in five women is sexually assaulted while enrolled in college. In fact, “One in five women is sexually assaulted in college” is the first sentence in “Not Alone,” a report published in April by the Biden-led sexual assault task force.

It turns out, however, that the “one in five” ratio may not be representative of college campuses collectively, and that its use as a basis for university policies and legislation affecting one of the most intimate of human activities is dubious at best.

Criminology professor James Alan Fox and sociology professor Richard Moran explained in this USA Today op-ed that the assault rate parroted by pundits and politicos comes from a 2007 survey (conducted by a division of the Justice Department) of just two four-year universities, and it “might not accurately reflect our nation’s colleges overall.” 

Fox and Moran also pointed out that the survey had a substantial “non-response rate,” meaning that victims were more likely to respond to the questionnaire. “Moreover,” they write, “the definition of sexual assault used in this and other studies was too broad…. By lumping uninvited advances and alcohol/drug-influenced encounters together with forcible rape, the problem can appear more severe than it really is.”

My criticism of “affirmative consent” is not meant to downplay the darkness and tragedy of sexual assault and rape. Nor am I denying that there have been instances of underreporting and rape cover-ups on campus. But the accused as well as accusers would be better off with policies and procedures based on sound data and the “innocent until proven guilty” standard rather than fear-mongering and hyper-politicization.