Affirmative Consent on College Campuses

Across the country, many campuses have chosen to invoke the rule of affirmative consent. Below, a DC student defense lawyer discusses what affirmative consent means and how it impacts sex crimes cases involving students on campus. To learn more or begin building your defense, call and schedule a consultation today.

What is Affirmative Consent?

Consent in sexual misconduct cases used to require a person to affirmatively state that they did not consent to the sexual act in order to show that consent was not present, i.e. “no means no.” Those rules are beginning to change.

Many universities are now adopting a policy that no longer require a participant in a sexual act to specifically refuse to engage in a sexual act for that act to be considered non-consensual.

Under the new rules, the initiator of the sexual act cannot initiate that act unless there are specific cues indicating that the other person wants to engage in a sexual act. This has changed the “no means no” rule to a new “yes means yes” rule.

The new “yes means yes” or affirmative consent rule means parties need to obtain a verbal or nonverbal “yes” from the other participant(s) in order to engage in the sexual act. Many states are getting involved and adopting laws requiring all universities and their jurisdictions to establish an affirmative consent rule such as this. Currently, the District of Columbia does not have any laws like this.

What Are Some Issues With The Affirmative Consent Rule?

Affirmative consent can create many problems for people who are accused of sexual assault or sexual misconduct. One problem is that the burden of proving consent effectively flips from the accuser to the person who is accused.

The presumption of innocence, or “innocent until proven guilty” is a fundamental theory in our system of laws and policies in the United States. Both in criminal law and in university settings when someone is accused of wrongdoing, the burden is on the accuser to prove the misconduct happened, not on the accused to prove that it did not.

Even though university proceedings are not criminal cases and there is no possibility of jail time, they can still have very serious consequences to a person’s life. Being expelled from the university can result in not being able to obtain employment. It can result in the delay of one’s career by many years. It can have very long-lasting consequences. Affirmative consent undermines this bedrock principle and threatens the integrity of our legal system.

Difficulty Establishing Consent in Sex Crime Cases

Most university student codes of conduct set conditions and rules on which situations are without consent and which are with consent.

Although this is determined by each individual university, more frequently universities are adopting rules that presume consent was not freely and voluntarily given when there is any ambiguity in the wording, because the ambiguity could mean the consent was not clear to all parties involved.

This can be especially tricky when drugs or alcohol might be involved, because neither person may be in a position to remember the exact words used when it comes to deciding whether or not consent was present. Nonetheless, it’s important to hold an accuser to the burden established by the university to show that in the situation at issue there actually were no words to prove consent.

Contact an Experienced Attorney Today

College campuses take affirmative consent very seriously. The consequences can be drastic to face as a student, especially handling these charges alone. It is crucial to reach out to a skilled DC student defense lawyer immediately if you or your child’s university has accused them of sexual misconduct.