In a twit yesterday, the holding in Mock v. University of Tennessee was wrongly broadcast as “affirmative consent ruled unconstitutional.” It wasn’t. Chancellor Carol McCoy ruled that shifting the burden under “yes means yes” to the male to prove that he had consent, rather than placing it on the accuser to prove he did not, was unconstitutional.
And it’s one of a string of decisions finally making their way out of the intellectual cesspool of Title IX adjudication in the fantasy world of academia, where no delicate flower shall feel unsafe. GW lawprof John Banzhoff made it clear:
[N]o matter what the Department of Education or Department of Justice suggest, regardless of what a state’s statute provides, or what the University decides, the Constitution trumps it all.
Despite the reinvention of the Constitution by every sophomore feminist and sociology prof, to match their peculiar sensibilities, this isn’t a huge mystery. The Supreme Court in Matthews v. Eldridge held that Fifth Amendment due process rights apply even to administrative proceedings. It applies to the accused, and only the accused. It says so:
nor be deprived of life, liberty, or property, without due process of law;
Accusers don’t stand to be deprived. Accuseds do. That’s how the Constitution works, whether you agree with it or not. Just how much due process is due an accused in a non-legal proceeding is a mystery, because we don’t pay the Supreme Court Justices enough to provide us with complete answers to questions in one decision. But, as Judge McCoy wrote:
The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Due process is flexible and calls for such procedural protections as the particular situation demands.
Meaningful means effective, capable of fulfilling its purpose under the circumstances based upon the demands of the particular case. Still vague, but that’s what comes of blurred lines.
There are two forums in which affirmative consent have arisen. It was birthed in academia, where clueless fuzzy-headed admins tried to craft policy to please their “dear colleague” paymasters, and it has since morphed into laws where politicians found the overlap between tough on crime and feminism to tout to their constituencies.
As to laws, the full panoly of due process rights must be afforded, as the Fifth Amendment is directly implicated by a deprivation compelled by law. For colleges, “affirmative consent” is a matter of policy, not law, except where it’s mandated by law. Policy is something that grocery clerks take very seriously because it gives them power over the little people, but is otherwise mostly squiggly lines that are only meaningful when someone tries to enforce them.
While the current crop of cases address certain due process failures, there remains a fundamental issue that has yet to be addressed. Affirmative consent is unconstitutional because it’s void for vagueness. There must be “fair notice” that conduct crosses a line from lawful to unlawful. Affirmative consent, defined by post-hoc feelings and sensitivity rather than clarity, is so fundamentally fraught with vagueness as to be functionally meaningless.
The best definition is that it requires “enthusiastic consent,” whether by words or actions. Nobody has a clue what that means or how someone is supposed to distinguish consent that’s sufficiently enthusiastic. It’s all about the feelz, except feelz isn’t adequate to pass constitutional muster.
But that’s not where it ends, at the fairly obvious surface level of meaninglessness of the language. As Judge Pressman found in the UC San Diego case, it’s an invitation for apparently consensual sex to be recast as rape after the woman sees her beau kiss another woman, at which point she has an epiphany that her consent wasn’t voluntary. Usually, it’s accompanied by an advocate explaining how the beer she drank beforehand, just like the guy, means she couldn’t possibly be capable of giving consent like a grown-up.
And if that’s not vague enough, the latest thought in post-hoc rape is “gray rape,” where all appeared consensual at the time, but the woman harbored secret ambivalence or doubt, so secret that even she wasn’t aware of it until someone told her so, that she really didn’t want to do what she enthusiastically did.
Whether this is acceptable as a social norm is a question entirely apart from whether it satisfied the due process requirement of fair notice.
Guy: Wanna do it?
Gal: Oh yes, I do. Enthusiastically.
Guy: Well. Okay then.
Six months later, gal says, “well, I said I did, enthusiastically, but I really didn’t. I only did it because I wanted guy to like me and not call me a ‘tease.'” Rape? You bet. “Plus, I had a beer.” Rape? Totes. The guy sits there, shaking his head, muttering, “but she said she did, enthusiastically.” His disciplinary advisor, who also happens to be a grad student in art history with special training in Title IX survivor sensitivity, says, “you better plead guilty, you rapist scum.”
What distinguished the old school definition of rape was a clear line that assured that a person would know when conduct was wrongful. This line isn’t just a reasonable basis to hold a person accountable, but constitutionally necessary to give a person fair notice that he crossed over from lawful to unlawful conduct.
Under affirmative consent, both in its written prohibition and in its practical application, there is no line that the person engaging in the conduct can discern. The line ends up being wherever the other person feels it should be, whether at the time or at any time afterward. Even if males can read minds (they can’t, and neither can you), it wouldn’t enable them to know where the line is, as minds that change days, weeks, months later can’t be read at the initiation of sex.
Affirmative consent is not only being handled by colleges in a flagrantly unconstitutional manner, but it’s unconstitutional in itself for vagueness. Rape is not some imaginary construct that women can dream up at their leisure based on whatever feelings they have at any given moment. It’s a horrible crime. But this “yes means yes” is not a constitutionally viable definition of rape.