FIRE’s ‘Star Tribune’ Op-Ed: Affirmative Consent Policy ‘Obviously Flawed’

Minnesota’s Star Tribune published an op-ed by FIRE Executive Director Robert Shibley yesterday evening, explaining the consequences of University of Minnesota’s “obviously flawed” affirmative consent policy:

In an attempt to address the problem, the University of Minnesota recently proposed an “affirmative consent” (sometimes called “yes means yes”) policy for sexual activity among students. Colleges and legislatures in other states have rushed such policies into effect. But the University of Minnesota is taking a more deliberate look at what those policies actually mean when applied to students’ sex lives — and Minnesotans may not like what they see.

Robert said the refusal to release a university review of the policy likely means UMN lawyers flagged serious due process concerns. Specifically, they may have noted that “yes means yes” policies force accused students to bear the burden of proof, “effectively render[ing] students guilty until proven innocent.” Robert writes:

In criminal courts, you cannot be convicted of a crime unless the jury is convinced of your guilt “beyond a reasonable doubt,” generally considered a 98-99 percent level of certainty. But thanks to federal standards imposed in 2011, now in effect at the U and at virtually every other college in the U.S., the much lower “preponderance of the evidence” standard applies to allegations of sexual assault on campus. Under this standard, students will be found guilty of rape if the campus court believes the accuser’s story is only slightly more likely to be true than the accused’s — a 50.01 percent certainty standard, little better than a coin flip.

Robert urged Minnesotans to instead push for better relationships between UMN and local law enforcement. After all, only law enforcement is comprised of “professionals who have the proper capacity and authority to investigate claims—and to put offenders behind bars.”

Read the full article on the Star Tribune’s website.