First: "Consent is to be determined from the perspective of the complainant."
This is astounding, and it appears to be the philosophy underlying or swirling about the entire campus anti-rape crusade. There is a lot of confusion among college women about what constitutes "consent," and I am betting that it's because this outlandish notion has crept into the campus culture. I'll give you an illustration: a new Washington Post and Kaiser Family Foundation survey contains a disturbing statistic that has been entirely overlooked in the news about it: almost half of all college women mistake consent for rape. According to the survey, a full 44 percent of college women think that when a woman gives a guy a "nod in agreement," that isn't enough for consent. Read it again--it's almost incredible. Only 51 percent--the barest of majorities--think "a nod in agreement" indicates consent. Presumably, the 44 percent think that "consent" is not tied to a woman's words or outward conduct but is premised solely on her subjective beliefs.
Of course, consent is not properly determined from the "perspective of the accuser." Such a standard not only is grossly unjust and unconstitutional, it doesn't work. Consent is not determined based on the subjective state of mind of the complainant but rather her outward manifestations--her words and conduct--as reasonably construed. Note that an accused can't hide behind an unreasonable interpretation of an accuser's words or conduct and thereby transmogrify non-consent into consent. By the same token, a woman who is not incapacitated and who "nods in agreement" to have sex should not be heard to complain later that she didn't consent. Her secret, subjective desires or intentions are of no import if she has outwardly manifested her consent. Period.
The notion that that consent is determined from the "perspective of the accuser" seems to stem from a goofy decision of the Supreme Court of Canada. Here's how it's been described:
So, in Canada, when a woman "nods in agreement" to have sex, such clear conduct "may" be relevant to deciding whether she "consented," but what really matters is her secret, subjective state of mind. A woman can nod "yes" but secretly mean "no," and the guy's a rapist if she says so. This is a law and a policy that has crossed the line into pathology. It is self-evidently idiotic.In a series of cases culminating in R. v. Ewanchuk, the Supreme Court of Canada has held that, for the purpose of the actus reus, nonconsent is determined entirely from the perspective of the complainant. Consent focuses on whether “the complainant in her mind wanted the sexual touching to take place.” Consent cannot be implied from silence, passivity, or ambiguous behaviour, because it is the complainant’s state of mind that is at issue. Evidence about her behaviour may be relevant to whether the trier of fact believes the complainant’s assertion of nonconsent, but the focus is still on her thought process, not her actions or inaction.
Second, the "yes means yes" laws would put the burden of proving consent on the accused. This policy flips on its head the long-settled burden of proof and makes the act of love-making -- an act that occurs somewhere in the world countless times every second -- a presumptive offense merely on the basis of an accusation. That is a sea-change in our law.
Not only is shifting the burden of proving consent in rape cases unconstitutional, it is an idea long pushed by extremist victims' advocates. We've been warning about it here for years. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender." Mainstream feminist extremist Jessica Valenti advocates that America look to Swedish law as its legislative model for rape, and "activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it." Serious feminist scholars have written extensively on the subject in an effort to change the law. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. See M. Alexandre, ‘Girls Gone Wild’ and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of ‘Reasonable Doubt’ When the Victim is Non-Traditional, 17 American Univ. Journal of Gender, Social Policy & the Law 1, 41, 55-56 (2009). In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refused to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]." She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates a shift in the burden of proof by enacting affirmative consent laws.
Last year, the Washington Supreme Court reversed some very bad law that put the burden of proving consent in rape cases on the accused. Unfortunately, college campuses are considered worthy of constitutional protection.
The "affirmative consent" standard is the easy, but not the appropriate, way to respond to the public outcry about sexual assault on campus. Innocence Project guru Mark A Godsey has said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."
Finally, a brief word about the consent contracts, in the news the past couple of days. They are just silly. Among the other silly things about them are the following: (1) few, if any, college students who have consensual sex will bother with such a "contract"; (2) even legally operative written contracts with "no oral modification" clauses generally can altered by oral agreement via waiver or estoppel theories, and in the context of sexual relations, consent can be unilaterally withdrawn at any time by either party; and (3) even contracts entered into with ostensible assent can be challenged on the basis of fraud, duress, mistake, unconscionability, or lack of capacity.
On the other hand, if I were representing a college kid accused of rape, I'd be thrilled if he and his accuser signed one of these before the pertinent event.