Debate Continues with Postponement of New Affirmative Consent Policy

Wooden word yes and its shadow

Wooden word yes and its shadow

During the 2015 Minnesota Student Association presidential election, incumbent Joelle Stangler and running mate Abeer Syedah made sexual assault a major issue of their campaign.

Specifically, they proposed several policy changes to deal with this issue. One of these was the affirmative consent policy, also known as “yes means yes” consent, which has been adopted by many states and universities. The most well known version is California’s Senate Bill 967, which was signed into law in September 2014.

Before the election, Stangler and others in MSA had learned of the California law, and they started working with the University of Minnesota’s administration to implement a similar policy at the university. The policy was open for a 30-day comment period starting in early June.

Stangler explained that the new policy changes the university’s definition of consent from the previous mutually understood definition to affirmative consent. It also lays out what does not qualify as consent. The policy statement defines affirmative consent as “informed, freely and affirmatively communicated willingness to participate in sexual activity that is expressed by clear and unambiguous words or actions.”

The policy was originally scheduled to be in full effect by August in time for the start of the new school year. This was until President Kaler decided to postpone the implementation after hearing concerns from some of the University’s Regents at their June 8th meeting.

One of the Regents, Michael Hsu, initially moved to postpone the policy in order to allow time for, “the Board of Regents to review it along with getting a legal opinion for our general council which we currently don’t have.”

The motion had a second, but because the policy is an administrative policy, the Board of Regents has no say in its implementation. Before the motion was voted on, the Chair of the Board of Regents, Dean Johnson, talked to President Kaler, who agreed to postpone the implementation of the policy change until after the next Board of Regents meeting in September.

“Given the importance of this topic, not only at the University of Minnesota but nationally, several Regents agreed that the changes to the policy merit further discussion,” Johnson said in a press statement after the meeting.

Stangler replied that it was, “concerning as a general practice that the Board of Regents would pick and choose what things they are going to pull authority back from.”

She also claimed that this postponement harms the rollout of the policy, as it will not be in place for Welcome Week, which is the first week for all new students to learn about campus. The plan had been for affirmative consent to be spotlighted in this week. Stangler also stated that she felt that consultation with the University’s Title IX coordinator, a legal professional, in drafting the policy was sufficient legal consultation for the University.

After the announcement of the postponement, Stangler was quick to start a petition on in an attempt to encourage President Kaler to reverse the postponement decision. At time of publication, the petition has 1,549 supports after a few days of collection.

The concerns of some of the Regents are not the only opposition that this policy current faces. One question that people are asking is how people are supposed to prove that they had consent. In an interview with Kare 11, Stangler said that the idea that people would need a written contract or other forms of evidence is false and misleading.

When asked how one is supposed to prove consent without this form of evidence, she said, “In the same way that they have always been able to, in the trial where they are able to present their evidence.”

Additionally, Stanger said, “this conversation should not be about how you prove that you got a ‘yes;’ it should be about ensuring that everyone got a ‘yes.’”

Another common concern is that this policy will shift the common legal “burden of proof” standard on the prosecution to one where the accused would have to prove that they received consent. One group raising this concern is 28 professors at the Harvard Law School who spoke out against Harvard’s affirmative consent policy. They stated in their article that the policy at Harvard is, “overwhelmingly stacked against the accused.”

“Both parties are equally responsible for proving that they obtained the burden of consent,” said Stangler. She also claimed there was no issue with due process in the policy, claiming that the Department of Justice would have taken steps against the policy if there were.

Rebecca Dorin is a junior at the University, and the Secretary of the University’s chapter of the College Republicans. She expressed mixed feelings about the proposed policy, saying she generally favors it, but has concerns about the policy’s execution.

“People are reminded of the importance of having consent,” said Dorin of the policy change.

As for her concerns, Dorin mentioned that if the procedure is not carefully crafted, it could be damaging to anyone falsely accused. While she acknowledges that this does not affect the criminal investigation, she points out that there are currently very serious penalties for someone accused and found guilty through student conduct policy investigations, including revocation of degree, suspension, or expulsion from the university.

Dorin is also concerned that the way the university will implement affirmative consent to students could add to the peer pressure facing students regarding sex. She said that if they only talk about “yes means yes,” and that if all you need is affirmative consent, then people will feel further pressure to become sexually active. She wants the university to be clear by also telling students that if they do not want to do something, they should clearly say no.

The final form of the affirmative consent policy depends on the concerns of the Regents and others who comment during the remaining comment period. The next Regents meeting will be held September 10-11.