FIRE to OCR: Affirmative Consent Standards Threaten Due Process

FIRE wrote to the United States Department of Education last week, encouraging its Office for Civil Rights (OCR) to ask colleges and universities not to use “affirmative consent” standards that violate the due process rights of students accused of sexual assault.

In recent months, an increasing number of colleges and universities have adopted so-called affirmative consent or “yes means yes” policies. As FIRE has noted, these policies generally have several problems, including vague and confusing requirements that participants in sexual activity obtain objectively demonstrable consent throughout a sexual encounter. FIRE’s Robert Shibley wrote in a Minneapolis Star Tribune op-ed earlier this year that affirmative consent “may make good sense as guidelines on how to conduct one’s sex life. But when they become binding rules that are adjudicated by campus courts, they effectively render students guilty until proven innocent.”

As FIRE’s Susan Kruth detailed in the letter to OCR Assistant Secretary for Civil Rights Catherine Lhamon, these policies are often overbroad, vague, or altogether lacking critical definitions. Further, they essentially shift the burden of proof to the accused. Susan wrote that in sum, “the affirmative consent standard fails to give students notice of what is required of them, impermissibly places the burden of proof on accused students to demonstrate their innocence, and puts students having consensual sex at risk of being disciplined.”

OCR should be demanding that campus procedures provide meaningful due process. The current punitive campus disciplinary model is broken. Affirmative consent policies exacerbate its flaws by abandoning principles of fundamental fairness and should be opposed by OCR.