‘Yes Means Yes’ May Be Illegal, Judge Rules

Just as affirmative consent standards are proliferating at campuses across the country, a Tennessee state judge issued a ruling that casts doubts on their legality.

The case before the court, Corey Mock vs. University of Tennessee at Chattanooga, is the archetypal he-said-she-said campus sexual assault dispute that we have grown painfully used to over the last few years. Corey Mock, a wrestler, met a female UTC student on Tinder and they became friends. He invited her to a late-night house party, where they both got drunk and had sex in a bedroom. She later said that the sex was non-consensual and filed a complaint. Mock insists that she actively participated and gave no indication that she did not consent. On orders from the campus chancellor, Mock was expelled; Judge Carol McCoy’s ruling, released last week, reversed Mock’s expulsion.McCoy is not the first judge to side with a male student who says he was treated unfairly by his campus in a sexual assault proceeding. But the novel rationale she used—in a nutshell, that the “yes means yes” standard the University applied is fundamentally unfair—could prove highly influential if heeded by other courts.“Affirmative consent” or “yes means yes,” requires that the person initiating sexual contact of any kind obtain positive agreement from the other party before proceeding. Instead of requiring the complainant to prove that he did not consent, affirmative consent effectively places the responsibility on the accused to show that his partner consented.Critics of affirmative consent have long argued that this standard perverts due process by essentially requiring the accused person prove that he is innocent. McCoy’s ruling is a full-throated endorsement of this reasoning. “The UTC Chancellor,” she wrote, “improperly shifted the burden of proof and imposed an untenable standard upon Ms. Mock to disprove the accusation.” She acknowledges that the Chancellor interpreted the campus’ affirmative consent policy as “an effort to change the culture of sexual relations on campus and to clear up the ambiguity surrounding consent.” However, she said, the imperative of combating sexual assault does not entitle the university to require Mr. Mock “to disprove the charges against him.” In the most quotable passage of her opinion, McCoy states that “Yes Means Yes,” as implemented by the University, is untenable because:

Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of the accused to prove the complaining party’s consent strains credulity and is illusory.

McCoy never explicitly states that “Yes Means Yes” is unlawful per se. She merely says that it is unlawful as UTC applied it in Mr. Mock’s case. However, if other courts apply McCoy’s reasoning, that may be a distinction without a difference. The essential feature of affirmative consent standards is to shift the burden of proof and require that the accused to show he received consent. As Judith Shulevitz wrote regarding criminal affirmative consent standards:

if the law requires a “no,” then the jury will likely perceive any uncertainty about that “no” as a weakness in the prosecution’s case and not convict. But if the law requires a “yes,” then ambiguity will bolster the prosecutor’s argument: The guy didn’t get unequivocal consent, therefore he must be guilty of rape.

Shulevitz was talking about hypothetical criminal standards, but the same feature applies to campus rules: Affirmative consent, by its nature, shifts the burden of proof from the authorities to the accused person. If this runs afoul of “the fundamental requirement of due process,” as Judge McCoy says it does, then affirmative consent itself is untenable, and the policies of hundreds of colleges and universities may need to be reversed.

This decision represents the only time, to our knowledge, that a state court has explicitly evaluated an affirmative consent standard, and there is no guarantee that other courts will follow. But as affirmative consent gains momentum—it has already been mandated by state legislatures of California and New York in the last year—there will be no shortage of opportunities for students to challenge it in courts of law.