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 the dangers of policing sex and may punish even consenting adults. Further, clear affirmative consent policies are unconstitutional because: they are unconstitutionally overbroad; they violate substantive due process rights as unconstitutionally vague; and they violate the constitutional guarantee of free speech and the privacy rights of consenting adults.
C. Ashley Saferight,
Clear as Mud: Constitutional Concerns with Clear Affirmative Consent,
67 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol67/iss3/8