ASHE SCHOW: Law professor argues against ‘affirmative consent’ laws.

A University of Pennsylvania law professor is arguing that “affirmative consent” or “yes means yes” policies should be used as a rule of personal conduct, but not a standard of liability in sexual assault accusations. . . .

The rules state that each party must obtain ongoing consent from the other for each sexual activity. In reality, this translates to an impractical question-and-answer-session whenever sex occurs.

Since nonverbal communication is too ambiguous for those who have written the policies, words are all that counts. Which means that if a man (they are almost always the accused) takes a woman’s enthusiastic participation as an indication instead of explicitly asking permission again and again, he becomes a rapist. And there’s no way for him to defend himself from an accusation, because it’s her word against his, and colleges and universities are under pressure to “listen and believe” accusers no matter what the evidence.

As Robinson notes, those seeking to change the culture are the ones who would be most helped by affirmative consent being a means of conduct but not liability.

“Ironically, it is the reformers seeking to change existing norms — such as the norms of sexual consent on college campuses — who would most benefit from a criminal law that has earned moral credibility,” Robinson wrote. “It is their reform efforts that are most injured when the law’s credibility is damaged by using affirmative consent as a standard when determining guilt.”

Telling people how to have sex in a way that is counterintuitive and unnatural and then punishing them for failing to have sex in that way will never improve the culture, as men and women will increasingly become distrustful of each other instead.

Indeed.