The Washington PostDemocracy Dies in Darkness

Opinion Title IX protects women. Affirmative consent doesn’t.

James Madison University students look through T-shirts from a consent campaign. (Norm Shafer for The Washington Post)
Placeholder while article actions load

Each week, In Theory takes on a big idea in the news and explores it from a range of perspectives. This week we’re talking about affirmative consent. Need a primer? Catch up here.

Wendy Murphy is adjunct professor of sexual violence law at New England Law, where she also directs the Women’s and Children’s Advocacy Project. She wrote the first law review article describing the legal relationship between sexual assault and Title IX.

At first blush, the latest “Yes means Yes” standards seem wonderfully progressive: They imply that students won’t touch each other unless each person gives an explicit go-ahead. But while more openness around sex is a good idea, codifying the concept into a legal standard will diminish women’s civil rights under Title IX and weaken existing legal protections for victims. That’s because affirmative consent is a more demanding legal burden than the long-established Title IX standard of “unwelcomeness.” As a guideline for adjudicating sexual assault, affirmative consent poses a particularly dangerous threat to women’s safety and equality.

Title IX is a federal civil rights law, meant to ensure equality and prevent discrimination in education “on the basis of sex.” The most severe expression of sex-based discrimination is violence, including sexual assault. Civil rights violations on college campuses are punishable by serious sanctions, including possible expulsion.

As a civil rights injury on campus, sexual assault is determined under the civil rights standards of “severe or pervasive” and “unwelcome.” Sexual assault is by its nature “severe,” and “unwelcome” is subjective to the victim alone. The aggressor’s opinion or hypothesis about a victim’s state of mind are irrelevant, which affords maximum protection for women’s autonomy, bodily integrity and equality.

[Other perspectives: A live chat with Kara Eschbach and Jaclyn Friedman]

Affirmative consent, by contrast, allows unwanted contact to go unpunished in many circumstances, because it allows a perpetrator’s mistaken opinion — the belief that the victim wanted sexual contact — to override a victim’s actual non-consent. Simply put, affirmative consent allows “rape by error,” while Title IX forbids it.

Some object to Title IX’s unwelcomeness standard by claiming that a student can too easily lie about whether a sex act was welcome, but a student could just as easily lie about affirmative consent. Besides, colleges have far more cases in which perpetrators falsely deny responsibility.

Further, the unwelcomeness standard can help to insulate accused students from unfair punishment, because Title IX also requires proof of “offensiveness.” An assault, even if unwelcome, may not be “offensive” enough to merit sanctions under civil rights laws. This legal buffer can protect students who sincerely believe they have permission to act, so long as they can prove that subjectively unwelcome conduct was not “sufficiently offensive” to establish a violation.

Title IX also supports women’s equality in a way that affirmative consent does not, because unwelcomeness is routinely applied to the redress of assaults based on race and ethnicity. Applying the more onerous affirmative consent standard only when a civil rights offense is “based on sex” establishes a hierarchy in which violence against women is seen as less serious compared with violence against other protected-class students.

[Other perspectives: Why are we waiting until college to learn about consent?]

Such hegemonic policies are unfair and irrational. Indeed, what happens when a black student is sexually assaulted on the basis of her sex and her race? Should there be two different grievance proceedings under two different sets of rules?

Segregating out violence against women for second-class treatment will inevitably lead to expensive lawsuits against schools, in which women will assert that disparate treatment violates their equal protection and due process rights. Schools will save money, reduce incidence rates and avoid lawsuits from victims and offenders alike by complying strictly with Title IX. Schools are virtually immune from suit when they strictly apply federal civil rights laws and established standards such as unwelcomeness. They have much more liability exposure when they apply generic and ill-defined misconduct policies, such as affirmative consent.

Explore these other perspectives:

Kara Eschbach: Affirmative consent won’t end rape culture. Here’s what might.

Kevin de León and Hannah-Beth Jackson: Why we made ‘Yes Means Yes’ California law

Jon Zimmerman: We’re casual about sex and serious about consent. But is it working?

Alan Dershowitz: Innocent until proven guilty? Not under ‘yes means yes.’

Annie Clark: Why are we waiting until college to learn about consent?

You. (A live chat with Kara Eschbach and Jaclyn Friedman)