U's 'yes means yes' policy is obviously flawed

By now, few Americans have not heard about the issue of sexual assault on college campuses. From Rolling Stone's discredited story of a gang rape at the University of Virginia to President Obama's establishment of the White House Task Force to Protect Students from Sexual Assault to Senate hearings this summer on a bill intended to address the problem, the issue is getting much-deserved attention.

In an attempt to address the problem, the University of Minnesota recently proposed an "affirmative consent" (sometimes called "yes means yes") policy for sexual activity among students. Colleges and legislatures in other states have rushed such policies into effect. But the University of Minnesota is taking a more deliberate look at what those policies actually mean when applied to students' sex lives — and Minnesotans may not like what they see.

As the Star Tribune reported, in a July meeting, regent Michael Hsu called for university lawyers to review the policy before it was implemented, noting that he had received e-mails and phone calls from those concerned about the proposed policy.

That review is now finished. But late last month, university spokeswoman Lacey Nygard said the public won't get to see it, citing attorney-client privilege.

The fact that the U won't tell students or the public what its lawyers think about the policy suggests that those lawyers may not have given the effort an unreserved "thumbs up."

Here's why a "thumbs down" is a much more likely scenario.

If enacted, the policy would require students participating in sexual activities to obtain "a clear, unambiguous, informed and voluntary agreement between participants" and would require that this consent be continuous. Indeed, "where there is confusion about the state of consent, sexual activity must stop." In addition, "consent to one form of sexual activity does not imply consent to other forms of sexual activity," and silence cannot constitute consent.

These may make good sense as guidelines on how to conduct one's sex life. But when they become binding rules that are adjudicated by campus courts, they effectively render students guilty until proven innocent.

In criminal courts, you cannot be convicted of a crime unless the jury is convinced of your guilt "beyond a reasonable doubt," generally considered a 98-99 percent level of certainty. But thanks to federal standards imposed in 2011, now in effect at the U and at virtually every other college in the U.S., the much lower "preponderance of the evidence" standard applies to allegations of sexual assault on campus. Under this standard, students will be found guilty of rape if the campus court believes the accuser's story is only slightly more likely to be true than the accused's — a 50.01 percent certainty standard, little better than a coin flip.

This low standard becomes massively problematic when it comes to crimes like date rape, where there is usually little evidence of the crime other than the word of the two people involved. Even an advance written contract agreeing to sex, which comedian Dave Chappelle memorably satirized and which some new smartphone apps purport to supply, wouldn't be enough. Students are required by policy to continuously indicate their consent to sexual activity whether or not they wish to do so.

Those accused, meanwhile, dare not forget a single detail of how that continuous consent was communicated each and every time they have sex. Kimberly Hewitt, head of the university's Office of Equal Opportunity and Affirmative Action, told the Star Tribune that the new rule would make campus investigators' jobs easier, allowing them to ask a student: "Tell me how you understood that you had permission to do this?"

Given that students are routinely put through hearings for accusations of sexual assault that allegedly took place months or even years prior, how many students will have a convincing answer? Hewitt's comment makes it clear that the intention of this policy is to make it far easier to find a student guilty, regardless of whether or not he or she really committed the offense.

Sexual assault is a serious crime, but making it easy to expel accused students regardless of actual guilt isn't a serious solution. For those who are not guilty, it's an unjustified, life-altering, career-killing black mark. For those who are guilty, it's a laughably insufficient punishment that puts them right back on the streets where they can prey on the majority of Minnesotans who aren't in college.

Instead, the university should put its effort into facilitating a close relationship with local law enforcement, so survivors of assault feel more inclined to report to professionals who have the proper capacity and authority to investigate claims — and to put offenders behind bars.

Robert Shibley is executive director of the Foundation for Individual Rights in Education.