OPEN LETTER RE: THE DANGERS OF AFFIRMATIVE CONSENT AND "YES MEANS YES" LAWS
To all who care about women's safety and equality on campus;
I assume most of you know the storyline about "affirmative consent" at Harvard (and elsewhere). In my opinion, the public conversation is a straw man campaign more than a real debate.
Recent stories in the media have described the controversy regarding definitional standards for civil rights sexual violence against women on campus as a choice between 1. criminal law definitions of nonconsent/force, etc., and 2. the "new" option of "affirmative consent" --
The stories claim that "affirmative consent" is the preferable choice - and reporters note that Harvard Law students are asking for it to be adopted at Harvard because it is a good thing for women.
The students are wrong AND they are answering the wrong question.
It isn't a choice between criminal law standards of "non-consent/force" and "affirmative consent" -
It's a choice between the civil rights/Title IX standard of "unwelcome and offensive" and EVERYTHING ELSE including "affirmative consent" - and it doesn't get better than "unwelcome and offensive."
Affirmative consent (or "yes means yes") is MUCH worse than "unwelcome and offensive" primarily because "affirmative consent" devalues a woman's autonomy by allowing an offender's "mistake" ABOUT the victim's "affirmative consent" to trump the victim's actual state of mind. By contrast, an offender's state of mind or "mistake" about whether an act was "unwelcome or offensive" is NOT relevant under civil rights laws. Instead, "unwelcome or offensive" allows ONLY the subjective state of mind of the victim to determine whether an incident was "unwelcome." This is not unfair to the accused student because the added factor of "offensiveness" is then assessed under a "reasonableness" standard - which allows community values to be taken into account in determining whether the conduct violated civil rights laws. Only the victim decides whether an act was "unwelcome," and while an offender's opinion is relevant to an assessment of "offensiveness," it is never a trump card.
Simply put - under "affirmative consent," an offender is not held accountable if he says "I thought she gave affirmative consent." Under the civil rights standards of "unwelcomeness" such a claim is not enough. There has to be a "reasonableness" assessment to determine NOT whether he made a mistake but whether his actions were "offensive" even IF mistaken.
Why would Harvard Law students be fighting FOR "affirmative consent" given that it is NOT a civil rights/Title IX standard - AND is a much worse standard than "unwelcome and offensive?"
Why would Harvard Law students want segregation AND substantive subjugation for women? (I can understand some kind of special procedural accommodations in certain kinds of cases but NOT substantive standards.)
Who in their right mind fights to have ONLY violence on the basis of sex subjected to worse treatment compared to other forms of civil rights violence on campus?
Why are women at HLS publicly asking for civil rights laws NOT to be applied to the redress of sex-based violence - the most severe form of gender discrimination - while "unwelcome and offensive" DO apply to other forms of civil rights violence "on the basis of" all other protected class categories?
In the year 2014 - why is anyone, much less Harvard Law students, asking for explicitly segregationist treatment of women?
And how would a segregated policy work exactly, in a case where a woman is attacked on the basis of her race and her sex?
The worse standard of "affirmative consent" would be applicable to the "sex" parts while the preferable standard of "unwelcome and offensive" would be applicable to the "race" parts?
How does a human being figure out how to behave differently toward others based on skin color vs. gender - in the same body - and how do students figure out how to interact sexually with people who identify as black and female?
Disparate standards means offenders are expected to act with more civility and respect when targeting a black or Irish woman than when targeting a white non-ethnic woman.
For me, it means students might have to start reporting campus sexual assaults as "based on" anything OTHER than "sex" in order to receive equitable redress under ideal standards of "unwelcome and offensive."
It's like a bad Twilight Zone episode
Wendy MurphyNew England Law|Boston