Did you know that many jurisdictions in the United States already have “affirmative consent” standards for sexual assault? You could be forgiven for not knowing that, given that it’s almost never mentioned in the current controversies. And I don’t mean like the California law, that was passed recently and only applies to disciplinary hearings on college campuses; I mean long-standing laws where you can be fined or sent to jail if you touch someone sexually without their affirmative consent.
This should tell us two things:
1) Given that you probably have no idea whether you live in one of these jurisdictions or not, affirmative consent laws clearly do not lead to an atmosphere of fear surrounding sex, a sense that the government is digging too deeply into our sex lives, or what have you.
2) By the same token, affirmative consent laws don’t make it much easier to get convictions. These things really do come down to “he said, she said” – “he said” almost always describes behavior that does not meet the state’s definition of sexual assault, and “she said” almost always describes behavior that does meet the definition…because both parties have lawyers who generally want to win their cases and aren’t idiots.
Basically, anyone who says “affirmative consent shifts the burden of proof from the victim to the accuser” is wrong, whether or not they’re saying that’s a good thing or a bad thing. Burden of proof isn’t going anywhere; international human rights law says you can’t impose criminal penalties on someone unless you prove them guilty beyond a reasonable doubt. Let’s say we believe that only 2-10% of accusations are false…but reasonable doubt is often said to be roughly a 95% threshold; it’s still iffy whether you can clear that on a victim’s testimony alone, which is often all there is.
And so this leads to very few sexual assault convictions (actually, clearance and conviction rates for sexual assault are just as high as for other serious crimes; it’s the reporting rate that’s low, and I think we can safely assume that most of the unreported assaults are the ones that would be difficult to prove beyond reasonable doubt.)
So what can we do? I think we know, honestly. Why have activists focused so much energy on Title IX? Because it does what we need – it provides non-criminal penalties for sexual assault along with a lower burden of proof. Which would be great, except that it also replaces the institutional competence of the court system with university bureaucrats who have serious conflicts of interest and no idea what they’re doing, and it discriminates egregiously on social class by serving only college students, who are less likely to be sexually assaulted than women of the same age who are not in college.
There’s a solution, however imperfect. Remember Taylor Swift’s trial? Remember that she won, even though we couldn’t see absolutely-for-sure in that photograph whether the guy’s hand was on her ass? That’s because she sued him for civil damages. She sued him for only one dollar, which was fine from her point of view but probably not what most people would want; in general, the best bet would be “parallel proceedings” involving simultaneous criminal prosecution and civil damages. One fairly likely outcomes of such proceedings would be that the perp is found “not guilty” in the criminal trial but has to pay civil damages; his likelier-than-50% guilt is now a matter of public record. And though he’s not in prison, he may have nevertheless gotten the fear ‘a jesus put in ’em, much to the benefit of future, potential victims.
Parallel proceedings for sexual assault are possible now, and maybe even kind of common, for cases that are brought to court. But they’re not normative – when someone who has been sexually assaulted considers their options, they don’t immediately think of parallel proceedings as the way to go. What if that changed?
Not Peer Reviewed 