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Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight

Cleveland State Law Review

Rape and sexual assault laws and policies have shifted significantly in recent years, including the introduction of affirmative consent. Unfortunately, both proponents and critics tend to confuse the issues and falsely equate affirmative consent as a substantive social standard versus a procedural standard for adjudication and punishment. Although affirmative consent generally does not represent a significant change in consent law in the United States, statutes and policies requiring a further requirement that affirmative consent be clear and unambiguous (“clear affirmative consent”) are problematic and raise constitutional concerns. When clear affirmative consent policies are used as an adjudicative standard, they increase …