Legal Challenges to Affirmative Consent Law

Source: Washington Examiner, Aug 2015

McCoy overturned a University of Tennessee-Chattanooga ruling that a student accused of sexual assault failed to prove he did obtain consent. Of course, such proof could not be obtained, as there are very few ways — and even fewer legal ways — to provide such proof.

Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory,” McCoy wrote.

Yes-means-yes policies require both parties to obtain consent from each other in order to engage in sexual activity. But in practice, the accusing student is absolved from obtaining consent once the accusation is made, which retroactively puts the onus on the accused to have obtained consent. Sometimes these policies require the initiator of the sexual activity to be the one who must obtain consent. But again, the accuser is absolved of such responsibility once an accusation is made.

The implications of yes-means-yes policies are clear: Accused students are the ones responsible for proving consent was obtained, and they are afforded few resources to do so.

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