Yale law students respond to their professor’s op-ed on campus sexual violence

Yesterday’s New York Times includes an op-ed by Yale law professor Jed Rubenfeld on how to solve the campus sexual assault crisis, in which he claims that a “yes means yes” standard “redefines” consent and “encourages people to think of themselves as sexual assault victims when there was no assault.” More than 75 students at Yale Law School, including our own Alexandra, have signed an open letter setting their professor straight. Their letter begins:

In his recent op-ed, “Mishandling Rape,” Jed Rubenfeld builds a theory of how schools should respond to campus sexual violence. Unfortunately, his formulation of the problem is both disconnected from the reality victims face on the ground and wrong on the law. As students at Yale Law School, where Rubenfeld teaches, we find his argument not only disrespects survivors of violence but also undermines the work of a nationwide movement to build safer, more just campuses.

Rubenfeld takes an overly narrow view of the purpose of processes that allow survivors to report sexual misconduct and seek support on college campuses. The goal of sexual misconduct policies, as part of Title IX compliance, is to ensure that students can learn on a campus free from sexual violence, discrimination, and intimidation. In reducing myriad efforts to “rape trials” only, Rubenfeld ignores the reality that brought about sexual misconduct policies: sexual violence is a systematic problem of inequality manifested in and perpetuated by varied forms of harm. This violence affects a huge number of young people, disproportionately women, and need to be addressed in all communities, including college campuses.

Yet according to Rubenfeld, requirements that sexual intimacy be based in mutual, affirmative agreement and desire are not a basic standard but instead a recipe for false rape claims. The consent standard, he claims, “encourages” students “to think of themselves as sexual assault victims when there was no assault.” In fact, what the affirmative consent standard does is respond to a long-standing problem faced by gender-based violence victims. The old complicated standards required a debate over whether the sex or other offending behavior was or wasn’t “wanted” by the victim, or whether the victim fought back. Under affirmative consent, the question is simply whether both parties expressed a desire to proceed.

The letter goes on to show how Rubenfeld’s take falls into many of the same misconceptions we’ve seen time and time. Like Jonathan Chait, he seems unclear on how affirmative consent works in the real world. Like George Will, he apparently imagines that being a survivor is somehow a privileged, coveted status. Like soooo many others, he misunderstands the role of alcohol in campus sexual violence and fails to grasp why survivors may not want to report to the criminal legal system.

As the students conclude, “[C]ampus rape is not an academic puzzle to be parsed. It is a terrible reality. Rubenfeld’s assessment is divorced from the facts of students’ lived experiences and from the law itself.”