Penn Law Prof: Affirmative Consent Should Be Moral Norm, Not Adjudicatory Principle

Paul Robinson, a professor of criminal law at the University of Pennsylvania Law School, recently argued in The Chronicle of Higher Education that we can view the concept of affirmative consent (“yes means yes”) in two related, but ultimately quite different, ways:

• as “the proper means by which students deal with one another” in sexual encounters; and/or
• as “an appropriate standard to determine liability and punishment” in campus sexual misconduct proceedings.

According to Robinson, “[t]he most promising path to changing the culture of sexual consent on college campuses is to adopt and regularly reaffirm ‘yes means yes’ as the rule of proper conduct, but to reject it as the principle of adjudication.”

Universities that have adopted an affirmative consent standard use it as the principle of adjudication, applying it in campus judicial proceedings to determine whether a student has committed sexual misconduct. As FIRE has argued repeatedly, and as at least one court has ruled, this standard fatally undermines the presumption of innocence, allowing a student to be exonerated only if he or she can produce evidence of consent.

While Robinson is not the first commentator to view affirmative consent through this bifurcated lens—Alan Dershowitz also had an excellent article on this point in The Washington Post this past fall—Robinson makes a powerful argument that adopting the first view of affirmative consent, while rejecting the second, is most likely to change the way students treat sexual consent on campus:

Modern American criminal law has almost always chosen to require not only proof of the harm — causing another’s death, or having intercourse when the partner is not in fact affirmatively agreeing — but also to require that there was some minimum level of culpability or blameworthiness in the defendant.

Indeed, it is this aspect of criminal law — its commitment to imposing liability only when there is sufficient personal blameworthiness — that has given it the moral prescriptive power that it has. The criminal law that punishes without regard to blame loses moral credibility with the community it governs and is discredited and ignored. A criminal law that earns moral credibility with the community is one that has the power to persuade people to internalize its norms. [Emphasis added.]

Click over to The Chronicle’s website to read Robinson’s excellent article in full.