Inconsistent Solutions Don’t Fix Persistent Problems: How Affirmative and Enthusiastic Consent Undermine Consent Laws Within Universities

Abstract

This article critically examines sexual misconduct reporting on university campuses, emphasizing the inherent flaws in how consent is defined and implemented within policy frameworks. While acknowledging the value of clarity, it argues against adding modifiers like enthusiastic and affirmative, which can obscure and over-generalize consent definitions. Analyzing current policies and relevant cases underscores the urgent need for prompt changes in university and federal settings. More specifically, it focuses on the problems arising from schools having autonomy in setting their definitions of consent, leading to issues such as policy ineffectiveness. This article proposes a comprehensive definition of consent, incorporating key factors like culpability and verbal and nonverbal cues to promote safer campus environments. Thus, it advocates for the release of guidance documents by the OCR to push schools to adopt a standardized definition of consent, ensuring a more uniform approach to addressing sexual misconduct on university campuses.