The University of Utah on Nov.7 hosted two of the nation’s leading experts on affirmative consent — Jed Rubenfeld and Deborah Tuerkheimer — to explore the evolving and timely topic for the S.J. Quinney College of Law’s 34th Annual Jefferson Fordham Debate. The debate was moderated by University of Utah S.J. Quinney College of Law Professor Paul Cassell.
The Salt Lake Tribune reported on the event. (Read the article here).
The Fordham Debate is named in honor of Professor Jefferson B. Fordham, an outstanding legal scholar and defender of individual and civil rights who joined the University of Utah College of Law faculty in 1972. The annual debate addresses relevant contemporary public policy and legal issues.
Nearly 200 people attended the event. The speakers addressed many points in the complicated debate over affirmative consent:
American law has long criminalized rape and other forms of sexual assault. In recent decades definitions of such crimes have been expanded, mostly providing greater protections for victims who testify they were subjected to non-consensual sex. This trend has even found its way into popular culture with the catch phrase “no means no.”
Some reform advocates contend that the essence of sexual assault is engaging in sexual activity without “affirmative consent.” They contend it is inappropriate to require a person to say “no” (verbally or physically) to sex. Instead, the initiator should obtain an affirmative consent – and silence, in and of itself, does not demonstrate consent. The reformers arguing for “yes means yes” have had a great deal of success in influencing disciplinary standards on college campuses, but with respect to the criminal law, the influence has been much less.
Critics of the proposed expansion have argued that it broadly criminalizes sexual activity commonplace in our society, turning normal human interactions into crimes. Moreover, while securing “affirmative consent” may seem straightforward in theory, in practice a whole host of questions arise. Does consent have to be verbal or are nonverbal cues sufficient? Does use of alcohol by one or both participants vitiate consent? Which party to the sexual encounter must secure consent – or do both need to do so?
Debate over such issues will continue in the future.