"Yes Means Yes" Consent Rule Just Doesn't Work - Study

WASHINGTON - Aug. 3, 2016 - PRLog -- "Yes means yes," the newest standard for obtaining consent for sexual encounters among some college students, just doesn't work in the real world according to a new study, so that's another good reason for not using it, says public interest law professor John Banzhaf.

        Legal standards which are contrary to human nature and common sense are usually doomed to failure in the long run, he reminds us, noting the demise of older legal rules requiring drivers to look both ways when driving though an intersection, or to stop before crossing a railroad track.

        The study showed that it's unclear whether the new definition has had any influence on students' attitudes and actions; specifically, only a tiny minority of students asked their partners for consent to sex.  Moreover, most could not even remember - even when sober - what steps led up to intercourse.

        In the majority of reported college rape cases, the female complainant was so drunk that she could not even remember what happened to her, and many other reports may not be accurate because of intoxication.  For example, in one infamous instance, a women reported being lured into a fraternity where it was alleged that a male had his way with her, but a DNA test showed that the partner had been female.

        Therefor, since heavy drinking is so common in campus sexual encounters, both participants could be liable and subject to expulsion if both he and she could not prove that the other had given affirmative consent, said Banzhaf, noting that this is not simply a hypothetical.  Indeed, for this very reason, courts have struck down the "yes means yes" standard as unconstitutional in some instances.

        As Inside Higher Ed summarized the research, "students often obtain sexual permission through a variety of verbal and nonverbal cues . . .  that do not always meet a strict definition of affirmative consent."  "Just because you make it clearer what we expect in terms of consent from a legal or policy standpoint, that doesn't change the fact that people are limited in their ability to meet those expectations," say the researchers, echoing what common sense probably tells most people on campus.

        Professors commenting on the research went even further, suggesting that men who do expressly ask for affirmative consent are not only unlikely to get it, but may even ruin the relationship and/or be seen as a wimp.  One woman reportedly said that if a guy actually asked first, "that would be a deal-breaker because she would lose all respect for him. The other 3-4 young women present all agreed."

        Interestingly, despite the adoption of this new standard at a growing number of colleges, there appears to be no study showing that it has had any effect whatsoever in actually reducing the incidence of rape.

        In contrast, several studies have shown that there is a technique which does reduce the incidence of rape by almost 50%, but it seems to be used only in Canada, and not by any U.S. colleges.

        Also, if the "yes means yes" standard is appropriate and necessary to protect women in college, it seems strange that nobody seems to have suggested that the law should be changed so that the standard would apply also to women who don't go to college, even though they may be even less sophisticated.

        Banzhaf notes that at least 6 states this year failed to adopt the new standard.

        Also, the American Law Institute overwhelmingly rejected a move to amend the Model Penal Code to replace the existing standard with this new one.  Perhaps they foresaw this type of study, and concluded that the well-tested standard, one consistent with how people really interact, was better.

        Banzhaf's proposal to deal with these issues is about to be tested in Virginia.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhaf@law.gwu.edu  @profbanzhaf