FIRE Weighs in on Minnesota’s ‘Affirmative Consent’ Policy, Commends Delay

Implementation of the University of Minnesota’s (UMN’s) controversial “affirmative consent” policy for sexual assault prevention remains delayed after FIRE and other civil rights groups decried it as a due process disaster.

On the heels of laws mandating similar policies in New York and California, UMN’s policy would require that students have “a clear, unambiguous, informed, and voluntary agreement between participants” before engaging in sexual activity.

The StarTribune reports that hundreds have protested the delay, saying the policy would stem the rising tide of sexual assaults on campuses.

But university president Eric Kaler says UMN needs more time to wade through concerns raised by the Board of Regents that accused students would essentially be deemed guilty until proven innocent.

Last week, news outlets turned to FIRE for an explanation of the problems with the proposed policy. FIRE Executive Director Robert Shibley told the StarTribune on Tuesday why due process advocates find the policy troubling: It creates a presumption of guilt because a student accused of rape must prove he or she had consent. The idea that accused students are guilty until proven innocent is incompatible with principles of due process.

Later in the week, FIRE Director of Policy Research Samantha Harris told Minnesota radio host John Williams that while eradicating sexual assault is a commendable goal, FIRE routinely sees these types of vague policies abused.

“FIRE has seen a lot of instances in which students have been found responsible for sexual misconduct in very biased proceedings, under circumstances where what happened was very ambiguous,” Samantha said. She noted that evidence can be thin in the alcohol-fueled world of college hookups, where consent lines are “messy.” Affirmative consent creates a “parallel justice system” where it’s often one student’s word against another’s.

“The person who’s accused is left with effectively no defense. That’s a very dangerous standard to use to determine that somebody’s a rapist.” Sam added: “Historically, when you’re accused of a serious offense, there’s a presumption of innocence.”

UMN deserves credit for taking the time to consider these important ramifications. Addressing sexual assaults on campus is important, but institutions must not sacrifice fundamental fairness along the way.