TAMARA RICE LAVE: Affirmative consent and switching the burden of proof.

I have been thinking a lot about affirmative consent in sex cases. I understand why advocates want affirmative consent as a policy matter; certainly, people should ensure that they are only having sex with partners who actually want to be doing whatever conventional or freaky act they happen to be engaged in. But I have a problem with legally requiring affirmative consent. I don’t see how making a person prove that her partner consented doesn’t switch the burden of proof to the accused.

When I was a public defender, I used to always remind jurors that because the BOP was on the prosecutor, I could literally say nothing, and still, if the D.A. didn’t prove the case beyond a reasonable doubt, they would have to acquit. But with affirmative consent, the accused must put on evidence. If the university proves by a preponderance of the evidence that a sex act happened, the student has violated the university code of conduct unless he can convince the fact finder that the complainant consented.

Alas, New York and California have enacted affirmative consent laws, and other states are considering following. I find this trend to be extremely troubling and am relieved that at least one judge is similarly critical of affirmative consent.

There should be more.