Requiring college students – but not the general population – to adhere to an affirmative consent, or "yes means yes" standard for sexual consent, has been a disaster. It has sent frivolous accusations flying, as well as lawsuits from students who were disciplined, claiming a lack of due process. But that hasn't stopped supporters from claiming the policy is necessary.
Take the Monday editorial from the Daily Bruin, the student newspaper of the University of California-Los Angeles. In it, the editorial board points out that research has shown the policy to be out of touch with reality, but argues anyway that it should remain in place because it has made it "much easier for California law enforcement officials and judges to evaluate sexual assault cases and make less ambiguous, yet more ethical rulings."
In fact, it has made it much easier for school administrators to kick accused students out based on an accusation even when there is evidence to the contrary. This doesn't exactly fall under the heading of "more ethical rulings." That's why judges in California are halting the expulsion of students who have been railroaded since the adoption of the policy. One judge even called the current campus kangaroo courts "unfair."
The problem is that affirmative consent defines nearly all sex as rape, since there are very few ways to safely to navigate the policy. It's nearly impossible under affirmative consent to prove that any act of sex was not rape, short of making a video recording. By defining consensual sex so narrowly, all sex that is still consensual but not in the way the policy claims makes much of consensual sex a disciplinary matter, should an accuser want to make it one for whatever reason — revenge, hurt feelings, social pressure, etc.
The editorial board points out that San Jose State University professor Jason Laker's research found that affirmative consent is unrealistic because many introverted students are "less likely to ask for or voice consent when engaging in sexual activity." Laker and his research partner also found that not all sex is verbal, and that nonverbal cues are often given (duh). Also, sometimes students said they would only give verbal consent after coercion.
Affirmative consent as a matter of California law doesn't say only verbal consent is acceptable, but some schools, as a matter of policy, have advised students that nonverbal cues can be too ambiguous, so it's best to get verbal affirmation. This goes against much of sexual nature, where people don't constantly ask: "May I touch you here?" or "May I kiss you?" But under affirmative consent, such questions are necessary throughout the entire sexual activity (but asking doesn't matter, as an accused student can't prove they asked and received consent without video).
The Daily Bruin editorial board acknowledges that "research points to unambiguous consent as being an unrealistic concept in the lives of college students," but praise the law for offering "a standard of comparison."
But creating a standard that allows consensual sex to be reinterpreted or exaggerated into rape does nothing to help real victims. It just makes more people think they're victims, and makes real victims out of falsely accused students.
Ashe Schow is a commentary writer for the Washington Examiner.