Throughout sexual activity… It’s getting to the point where students would be safest by video taping their sexual activity.

Samantha Harris of The FIRE reports.

California ‘Affirmative Consent’ Bill Puts Colleges in Untenable Position

Colleges are in an increasingly untenable position when it comes to the sexual autonomy of their students, and the house of cards is going to come crashing down sooner or later.

Last week, the California State Senate approved SB 967, a bill that would require colleges receiving state-funded student aid to use an “affirmative consent” standard in their sexual assault policies. According to a report by the Associated Press:

Their policies must include an affirmative consent standard, which is defined as “an affirmative, unambiguous and conscious decision” by each party to engage in sexual activity. It also requires consent to be ongoing throughout a sexual activity.

So on the one hand, colleges and universities are being asked to closely monitor how students conduct their sex lives, sometimes to the point of ensuring not only that consent was present, but also that it was “affirmative and unambiguous” throughout the entire encounter. As the editorial board of the Los Angeles Times pointed out, “It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms.”

On the other hand, colleges and universities are expected to respect students’ autonomy, including their sexual autonomy, and to allow students to engage in sexual exploration. Colleges no longer act in loco parentis, and this extends to students’ sex lives.

Why does this matter to FIRE? On campus, due process means not just having policies and procedures followed fairly and correctly when they are applied, but also having policies and procedures that are not unfair on their face. Mandating affirmative consent, unfortunately, falls in the latter category, because in most cases it will be impossible for the accused student to prove he or she gained affirmative consent for sexual activity.