The professor’s problem is that he his comments about consent indicate that affirmative consent policies are unenforceable and too broad.
More than 75 students have signed an open letter about the op-ed.
The Huffington Post reports that the op-ed said that colleges are failing victims, how accused students are pushing back and how even expulsion, the most severe consequence a school can mete out, still leaves an accused student free to walk the streets. Rubenfeld notes that with 21 being the legal drinking age, and with colleges unable to host their own alcoholic events, partying often ends up in male-dominated spaces like fraternities, which elevates the risk of sexual assault.
However, what has drawn the most ire are Rubenfeld’s comments about consent. In his column, Rubenfeld characterizes affirmative consent policies as unenforceable and overly broad, and suggests that such an approach categorically redefines all drunk sex as rape.
“The redefinition of consent … encourages people to think of themselves as sexual assault victims when there was no assault,” Rubenfeld writes. He adds that students “need to be told clearly that if they are voluntarily under the influence (but not incapacitated), they remain responsible for their sexual choices.”
But the law students say Rubenfeld is off-base. They write that no one is actually classifying consensual drunk sex as rape, and that alcohol’s role in sexual assault cases has to do with offenders who “intentionally target classmates who are vulnerable or incapacitated by reason of intoxication.”