The University of Minnesota is debating whether to join a growing number of higher education institutions and some states in adopting an affirmative consent or “yes means yes” standard for its sexual misconduct policy. The new rule, which was slated to take effect in July but postponed until September for further debate by the Regents, establishes that sex is consensual only if both parties express consent through “clear and unambiguous words or actions.”

The affirmative consent standard has gained popularity across the country as universities are scrambling to deal with a rise in sexual assaults and sexual assault allegations on campus. The policy is meant, in part, to clarify for students how the University will determine the issue of consent when conducting its internal investigations of sexual-assault claims. Many cases hinge on what the complainant did or said to convey an agreement to engage in the sexual activity, and many respondents mistakenly believe that the absence of resistance or silence is evidence of consent.  Affirmative consent policies are intended to provide greater guidance to students of the need for some indication of consent, preferably through words but possibly through other conduct, before proceeding.

Proponents of “yes means yes” believe that it affords a level of due process to victims of sexual assault that was absent under previous polices. Alison Berke Marono, a political strategist who helped launch the Affirmative Consent Project, said that “the burden in cases of alleged sexual assault has [historically] been on victims to prove they were victimized.” Affirmative consent confirms that the burden is squarely upon the initiator of the sexual contact to make sure a green light exists before engaging in sexual activity.

Opponents of affirmative consent assert such policies violate the rights of the accused.  Robert Shibley, executive director of the Foundation for Individual Rights, asserts that affirmative consent policies require the accused person to prove that they did have consent once sexual misconduct is alleged. According to Shibley, this effectively “means they’re guilty until proven innocent.”

I recently had the opportunity to discuss the University’s Affirmative Consent proposal on Minnesota Public Radio.  As I stated on the program, I think the hype on both sides of the debate is much exaggerated.  The definition of consent under the University’s proposed policy is not much of a departure from the existing definition under Minnesota’s criminal law. Under Minnesota law, consent means “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.” In other words, it is already the law in Minnesota that silence or a lack of resistance is not consent, and that a person does not have consent in the absence of words or actions indicating the other individual’s agreement to engage in the particular sex act.

Whether or not the Regents vote to adopt or reject the affirmative consent standard, the University has succeeded in perhaps the most important way – getting the conversation started and forming a platform upon which to address the issue of sexual assault on campus.