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Let's Stop Comparing Campus Sexual Assault Proceedings to Criminal Trials

A response to Matt Kaiser's piece in Vox on the dangers of affirmative consent policies on campus

It’s tempting to compare campus sexual assault proceedings to criminal trials, as Matt Kaiser does in his piece on Aziz Ansari -- and as several journalists have done in recent articles. But the comparison is deceptive and inapt. Campus sexual misconduct proceedings are nothing like criminal trials, nor should they be. In a campus proceeding, if the person accused of sexual assault is found responsible (the term used in such proceedings isn’t guilty, as in a criminal trial), university-imposed sanctions range from a training on affirmative consent to expulsion, but expulsion is extremely rare. And to be clear, expulsion isn’t jail time. Losing a college education is a terrifying prospect, but the Constitution does not guarantee a college education.

While almost all universities use a preponderance of the evidence standard, which is the standard used in civil cases, a sexual misconduct proceeding isn’t a civil trial either. It does not follow clear rules of evidence or a neat burden-shifting framework, and again, it is not meant to do so. University  proceedings strive to provide a fair, expeditious, and informal process to hear the complainant and the respondent, to protect the safety of the student body at large, and to protect the interests of the university. These proceedings are not perfect. There is work to be done to improve the process for all parties, but that does not mean that we should backpedal on affirmative consent policies.

Kaiser's argument that an affirmative consent policy grossly expands the definition of sexual assault and offends our notions of justice and proper burden-shifting rings hollow. In my experience representing victims of campus assault, Grace’s case would be no slam-dunk, and in all likelihood, not much would happen to Ansari. My clients face an extraordinarily uphill battle in proving their cases at a hearing and even in successfully navigating the investigative process. I find it hard to believe that Kaiser honestly thinks Ansari would get expelled. It makes for a catchy headline, but the argument feels disingenuous. 

Affirmative consent may seem radical to the generations of us who have grown up with “no means no.” But in adopting such policies, universities are telling their students that affirmative consent is what’s expected of them, plain and simple -- just as students are expected not to plagiarize. If nothing else, Grace’s story shows us that such a policy actually works. It has sparked change and progress. Unlike my generation, Grace expects a basic degree of respect and communication in each and every single one of her sexual encounters, celebrity encounters included. I graduated college before enthusiastic consent meant anything, and I admire Grace’s self-assurance as to what consensual sex looks like. More impressive still: she communicated those feelings to Ansari immediately afterwards.

Affirmative consent isn’t a “sexual ideal,” and it's not "new territory," as Lindy West recaps in her New York Times op-ed. For students on college campuses today, it's is a fairly basic concept. Why accommodate the few men who feel entitled to go by an "outmoded sexual playbook," as Kaiser argues? Affirmative consent is here to stay. It's time for the rest of us to play by the rules.