The Hidden Perils of Affirmative Consent Policies

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.

Requiring verbal consent is also patronizing. In our day, “no” meant “no,” and we assumed that everyone was capable of speaking the word during an encounter. To our minds, it is decidedly anti-feminist to tell non-incapacitated, sexually active adults that they lack the agency to say no, which is what affirmative verbal consent policies do.

This brings us to consent through actions. This is where, as most communist nations eventually discovered, what sounds great in theory can be a disaster in practice.

What does unambiguous consent through actions look like? Consider, for example, the last time you had intercourse without verbal consent. How did you know the other person wanted to do it? What one thing would you be able to point to? Was it the kissing? The touching? Some other sexual act that happened right before intercourse that you both just seemed to enjoy?

If you point to any one thing and say that’s what made me think I had consent, you’re going to be found responsible for sexual misconduct. That’s because most sexual misconduct policies explicitly say that consent for one sexual act does not imply consent for another sexual act. So if you say, “I thought because she put my hand on X, she wanted Y,” you’re toast. Goodbye, Harvard. Hello, East Whoville College (if you’re lucky).

The problem is that consent through actions is all about context. It’s not any single thing, especially when the participants are in a romantic relationship. There is usually a natural progression in sexual contact. Partners start off by kissing and gradually escalate, barring any objections.

But when sexual misconduct panels try to break down exactly where the consent through actions happened, that analysis inevitably becomes absurd. Panelists ask questions like, “Did the fact that you had oral sex mean you thought he or she was consenting to intercourse? At what point did you think you had consent?”

The honest answer is usually, “It wasn’t any one thing. It was everything that happened that night. She seemed just as into it as I was.”

But universities, in our experience, default to punishing the accused in these ambiguous cases. Breaking down how consent-through-actions was communicated, in the cold light of a conference room months or even years later, is impossible. The practical result is that the affirmative consent policy allows any student to get his or her former sex partners expelled or suspended.

While it's important to make sure that sexual misconduct is handled appropriately on campus, affirmative consent policies do not help to achieve this goal. Harvard should resist the temptation to adopt a policy that makes sense on paper but can needlessly ruin lives in practice.

Justin Dillon JD ’02 is an attorney at KaiserDillon PLLC in Washington, D.C., where he has handled dozens of sexual misconduct cases at colleges nationwide. Hanna K. Stotland ’99, JD ’02 is an educational consultant in Chicago who has counseled dozens of students involved in Title IX cases, including both complainants and accused students.