October 21, 2014 — Colleges and universities are increasingly implementing affirmative consent standards for sexual assault cases, although debate continues over the definition of active consent and the legal implications of such a standard, Inside Higher Ed reports.
Spread of Affirmative Consent Standard
More than 800 colleges and universities currently use a definition of affirmative consent in their sexual assault policies, according to the National Center for Higher Education Risk Management. For example, the State University of New York system adopted a uniform affirmative consent definition across its 64 campuses, and the California State University System and most Ivy League schools have adopted similar standards (New, Inside Higher Ed, 10/17).
Last month, California became the first state to enact a law (SB 967) that requires colleges and universities that receive state funds to determine whether active consent occurred when investigating or adjudicating alleged sexual assaults (Women's Health Policy Report, 9/30). According to Inside Higher Ed, lawmakers in New Hampshire and New Jersey (S 2478) have introduced similar legislation, and New York Governor Andrew Cuomo (D) is planning to propose a similar bill.
Advocacy groups have also propelled the spread of affirmative consent standards by increasingly adopting "yes means yes" messaging in sexual assault prevention efforts, rather than "no means no," Inside Higher Ed reports.
Debate Over Scope, Definition of 'Yes Means Yes'
SurvJustice Executive Director Laura Dunn said that affirmative consent standards are particularly helpful for colleges because they normally have a lower burden of proof -- preponderance of evidence -- than criminal courts, which require evidence beyond a reasonable doubt for a conviction. Dunn added that she hopes states eventually adopt affirmative consent standards in their criminal codes, which often define consent based on whether an individual physically or verbally resisted sexual conduct.
Meanwhile, American Council on Education general counsel Ada Meloy said the push for affirmative consent standards "is likely to be a generally positive thing," but she argued that "it's not easy to develop a good definition of affirmative consent" and that her organization "wouldn't want a one-size-fits-all approach for a variety of institutions."
George Washington University law professor John Banzhaf said affirmative consent standards that depend on nonverbal cues are too ambiguous. Instead, states and colleges should remove the ambiguity around the "no means no" standard, he said (Inside Higher Ed, 10/17).