I don’t have firm views on the new California standards for consent on college campuses. We should see how they work and if they’re effective. But, particularly in light of Jon Chait’s essay, I did want to emphasize a few points about the affirmative consent standard.
- Affirmative consent does not mean only verbal consent. Chait doesn’t make this mistake, but it does seem to come up in some critiques of affirmative consent — Freddie de Boer’s, for example. I do agree that a standard of consent that required verbal consent for every sex act would be silly and unworkable. But the California standard does not in fact require this. I don’t know about the proposed Columbia standard, but the New York piece Freddie cites simply asserts that consent must be verbal without backing this up with an explicit evidence from the text. Consent does not necessarily have to be verbal to be unambiguous. For this reason, I don’t agree with Ezra Klein that the California law is an “extreme” law perhaps justified by an extreme problem, and I think the alleged ambiguity of consent is vastly overstated. Jessica Valenti is excellent on this point.
- An affirmative consent standard does not logically require any particular form of due process. There are some real potential due process problems when campuses try to enforce sexual assault and misconduct guidelines (although, for reasons I’ll get to in a second, I think they are sometimes overstated.) I agree, for example, if an appeals process is warranted the appeal cannot be heard by the person who issued the original judgment. But it’s important to keep these questions distinct. A traditional consent standard can be enforced with inadequate due process; an affirmative standard can be enforced while granting appropriate due process rights.
- What process is due is contingent on the nature of the penalty. It’s true, as far as it goes, that the crisis of sexual assault on campus does not justify an illberal abandonment of due process rights. But it’s also important to remember that what process is due varies considerably depending on the potential consequences. (You have a right to be provided with counsel at a criminal trial, but not at traffic court.) This is particularly important in this context, because the penalties that universities can mete out are generally pretty limited. The process that is due to someone facing a 15-year prison term is not the same as the process due to someone facing a one-year suspension is not the same as the process due to someone who is asked to leave a university dormitory. A regulation that can result in severe sanctions should be narrowly drawn even at this risk of producing significant false negatives, but a student handbook can require more of its students in their sexual practices than the absolute plausible legal minimum. Students facing severe sanctions should have the opportunity to meaningfully contest charges against them, but nothing in the California law prevents this.
It’s this last point — the relatively small stakes involved here — that I think make the California law worth trying. It may be possible, although I very much doubt it for the reasons previously discussed, that the standard will prove unworkable and produce too many false positives. It may be — and this is somewhat more likely — that the change in standards will prove ineffectual, not providing any additional protection against sexual assault in practice. It will ultimately be an empirical question. But the idea that even in principle “don’t think like a sexual predator” is an excessive burden on students is entirely implausible to me, and I won’t assume that the new standards will fail in either direction ex ante.