ABSTRACT
This chapter will address the rise of “affirmative consent” state laws and university policies. The logic behind affirmative consent laws is that since sexual touching without consent is sexual assault, any such touching without clear expression of consent at every step of a sexual encounter regardless of a couple’s sexual history is also sexual assault. This chapter argues that such rules, however well intentioned, amount to violations of the right to sexual autonomy protected in Lawrence v. Texas as well as students’ right to free expression. The laws are also so ambiguous as to raise serious concerns about unconstitutional vagueness and a shifting of the burden of proof to the accused student to prove that they are innocent of sexual assault.
