Legal scholars across the nation have spoken out against affirmative consent sexual misconduct policies implemented at many universities, including LSU. However, proponents of the policy argue it bolsters the fight against rape culture at college campuses.
Affirmative consent, as it applies to sexual misconduct policy, means a person who initiates sexual contact must hear “yes” from the other person before engaging in a sexual act, said Morgan Lamandre, Vice President of Survivor Services at Sexual Trauma Awareness and Response in Baton Rouge.
Former American Civil Liberties Union President Nadine Strossen said the policy violates rights of due process, according to a news release from Stop Abusive and Violent Environments.
“They reverse the usual presumption of innocence,” Strossen said. “Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.”
Lamandre said the “No means no” campaign from past years has been ineffective. She pointed to research on brain activity of trauma victims to support the case for affirmative consent.
“When a person experiences a traumatic event — for instance, when being sexually assaulted — the brain releases many hormones that can make a person ‘freeze,’ which makes it literally impossible to speak or move,” Lamandre said.
She said this phenomenon is more common when the victim knows or trusts the person who sexually assaulted them.
Most cases involving consent issues deal with college students who are experimenting with sexuality and often alcohol, said Cynthia Garrett, a California lawyer and board member for Families Advocating for Campus Equality.
“To absolve a woman completely, expressly, of any obligation to say, ‘No, I don’t want to do this,’ seems incredibly overreaching,” Garrett said.
California was the first state to legalize an affirmative consent policy, while most policies remain at the university level. FACE aims to protect due process of law for college students, according to its website.
Lamandre said most people inherently understand what sexual harm is, and those who argue there are grey areas in affirmative consent policies typically defend against a claim of sexual misconduct.
“Affirmative consent is merely an accurate portrayal of what people do when they have sexual contact that is respectful and healthy, rather than selfish, coercive or abusive,” Lamandre said.
She added affirmative consent works, and people who have healthy sex lives practice it every time they have sex.
Garrett said consent was required before affirmative consent policies came into effect and shifted the burden unfairly onto defendants, which, she added, are almost always men.
LSU’s sexual misconduct policy states consent is the “affirmative and voluntary” agreement to engage in sexual activity. Lamandre said this policy is essentially affirmative consent, but stops short of identifying who is responsible for obtaining consent.
California’s law states, “It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.”
LSU policy also asserts consent cannot be given by someone “incapacitated” by alcohol or drugs — a part Garrett finds troubling.
Garrett said aside from someone falling down drunk, slurring their words or being unable to walk, many cases rely on the woman’s opinion that she was too intoxicated.
“People who are black out drunk, their memories aren’t able to form,” Garret said. “But they still may be acting rationally, normally, and even able to drive a car.”
Seirra Fowler, Assistant Director of Wellness and Health Promotion at the LSU Student Health Center, said there are many factors influencing the effect alcohol has on people, including dehydration, sickness and diet.
“We really want you to freely give that consent without any undue influence,” Fowler said, but noted college students will inevitably drink before engaging in sexual acts.
Fowler said affirmative consent is included in the LSU policy to require people to go the extra mile in obtaining consent, and the best part about the debate is it creates dialogue about consent.
“That’s definitely at least part of the issue in terms of sexual violence prevention — I think people talk about it when they know someone has been sexually assaulted,” Fowler said. “It’s really great to see people having conversations outside of that.”