woman at harvard

(WOMENSENEWS)–The legal debate over whether to adopt “affirmative consent” to improve campus safety at Harvard (and elsewhere) is way off course.

It’s being framed as choice between criminal law standards of “non-consent” and the “new” option of “affirmative consent”, which was just adopted in California public universities and is spreading as fast as an Internet virus.

Harvard Law students who are saying “affirmative consent” will be better for women are both wrong and answering the wrong question. This isn’t a choice between criminal law standards of “non-consent” and “affirmative consent.” It’s a choice between the civil rights Title IX standard of “unwelcome and offensive” and everything else, including “affirmative consent.”

And it doesn’t get better than “unwelcome and offensive,” a standard that Harvard introduced in July and which students are well advised to celebrate and protect rather than fight to overturn.

“Affirmative consent” (or “yes means yes”) devalues a woman’s autonomy by allowing an offender’s claimed “mistake” about a victim’s agreement to a sexual encounter to trump the victim’s actual state of mind.

Under the civil rights protection of Title IX, by contrast, an offender’s state of mind or “mistake” about whether a victim experienced an incident as “unwelcome or offensive,” is not relevant.

Under Title IX, the interpretation of what is “unwelcome” is derived only from the subjective state of mind of the victim. This may at first seem unfair to the accused student but it’s not. Under Title IX, the added factor of “offensiveness” is assessed under a “reasonableness” standard, which allows community values to be taken into account in determining whether the conduct violated civil rights laws.

Only the victim decides whether an act was “unwelcome” because it’s her body! An offender’s opinion is relevant to an assessment of “offensiveness,” but it’s never a trump card.

In Contrast

“Affirmative consent,” by contrast gives an offender a much bigger chance of not being held accountable if he says “I thought she affirmatively consented.”

Under the civil rights standards of “unwelcome and offensive” such a claim falls short because an offense is established under Title IX if an attacker’s actions were “offensive” even if mistaken.

It’s galling to see Harvard Law students–particularly women– fighting for “affirmative consent” given that it weakens civil rights protections under Title IX.

If the standard moves away from “unwelcome and offensive”–to either a criminal standard of “non-consent” or “affirmative consent”–Harvard Law students will be segregating and subjugating women who currently stand on equal legal footing with other protected classes when it comes to civil rights violence.

In the year 2014 why is anyone, much less women at Harvard Law School, asking for explicitly segregationist treatment of women?

To show how perverse this is, consider what happens when a victim is attacked on both the basis of her race and sex. Watch the questions that arise.

How does a human being figure out how to behave differently toward others based on skin color vs. gender in the same body? How do students figure out how to interact sexually with people who identify as black and female?

Disparate standards means offenders will be expected to act with more civility and respect when targeting a black or Irish woman than when targeting a white non-ethnic woman.

And what happens when a school conducts a hearing to determine whether an offense took place? With disparate standards in place, officials will be obligated to value the woman’s perspective more when she describes the race or ethnicity-based features of her victimization compared to when she describes the sex-based features. How does one even do that?

For me, it means students might have to start reporting campus sexual assaults as “based on” anything but “sex” in order to receive equitable redress under Title IX’s ideal standards of “unwelcome and offensive.”

It’s like a bad Twilight Zone episode.

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