If Aziz Ansari were a college student, he would likely be expelled

A woman described a sexual encounter with the comedian Aziz Ansari as “the worst of her life,” one that shook her deeply. She has concluded in retrospect that Ansari’s actions constitute “sexual assault.”

Most of the commentary on the much-discussed piece published by Babe.net has rejected that characterization. But some argue that the Ansari allegations suggest the time has indeed come for an aggressive expansion of what we mean by assault.

This is harder to defend. And defining aggressive pursuit as assault leads to consequences no one should want.

Virtually every college and university has already defined sexual assault in the way “Grace,” the woman in the Babe.net piece, does: Being proven to have engaged in sexual conduct without express affirmative consent will get you expelled or suspended. And my experience as a Title IX lawyer representing people on campuses accused of sexual assault has shown me how poorly those cases are handled — and why the definition of sexual assault should not be broadened.

Yes, in the public debate about Ansari most people are making important distinctions between Ansari’s behavior and what Harvey Weinstein is accused of. But behind closed doors at universities, actions like Ansari’s are absolutely being lumped together with rape.

Let me be clear. Seeking affirmative consent — ensuring that your partner is agreeing to each step in a sexual encounter either verbally or through a clear nonverbal action — is a very good practice. It’s how sex should happen, particularly between people who don’t know each other well. At a bare minimum, it’s just polite. It’s what someone does who cares about the feelings of the person he (or she) may end up having sex with.

Ansari, according to Grace’s account, didn’t seek affirmative consent. And here’s where things move from discussion about appropriate sexual behavior to institutional reactions and punishment — to overreach and violations of due process.

A disturbing shift in the burden of proof

That’s because regardless of how good affirmative consent is as a practice, and regardless of how deeply affected Grace was by her night with Ansari, affirmative consent is a really bad standard for levying punishment.

This is for two reasons. First, an affirmative consent rule is offensive to longstanding notions of how we ought to respond to allegations of wrongdoing. Affirmative consent policies shift who has to prove what in ways that we would reject in connection with any other allegation. If affirmative consent is the rule, the accuser does not have to prove that a sexual assault occurred; the accused must demonstrate that consent was obtained. A foundational belief of our legal system is that you don’t have to prove your innocence. The entity accusing you has to prove your guilt.

My law firm represents college students facing Title IX complaints and, increasingly, people involved in #MeToo accusations in other parts of their professional lives. Ansari’s case is a useful snapshot of where #MeToo and Title IX are right now.

If Ansari were a college student accused by another student, and his college concluded Grace’s account was “more likely than not” true (though some rare colleges use a higher standard), he’d very likely be expelled or suspended. His educational future at a competitive college would be over.

Consider Grace’s account in the Babe.net piece: “Most of my discomfort was expressed in me pulling away and mumbling.” After she said his aggressiveness made her worried that she would “feel forced,” he agreed to back off — or so he said. (“Let’s just chill over here on the couch,” he said, though both were still unclothed.) But then he “sat back and pointed to his penis and motioned for me to go down on him. And I did. I think I just felt really pressured. It was literally the most unexpected thing I thought would happen at that moment because I told him I was uncomfortable.”

If a man removes a woman’s clothes while they’re talking and kissing as she mumbles and pulls away, and they continue to kiss, and perform oral sex on each other, that’s not a crime that would be prosecuted in any courtroom in America. Yet in universities, it can be considered assault worthy of expulsion. (Robby Soave of Reason and Emily Yoffe of the Atlantic have also made this point.)

This raises, I think, an important and difficult question about what we’re doing as a society when we punish. Do we want to use punishment — be it in the criminal courts or through processes at colleges or companies — to create new social rules about what’s right and what’s wrong before there’s a clear understanding of, and something approaching an agreement upon, the new norms?

The Ansari accusations represent a starker challenge to societal (and legal) norms than the Weinstein story

Harvey Weinstein’s alleged conduct is clearly over the line. But for that reason, what he did is also a less fundamental challenge to our norms than Ansari’s. Weinstein’s fall (or Charlie Rose’s, or Louis C.K.’s, or Matt Lauer’s) represents not a shift in our norms around gender as much as a change in how a certain kind of person in a position of power is permitted to treat people under him.

The #MeToo movement to date has been incredibly important as a conversation about power and abuse. But at the same time, we already knew that women shouldn’t be assaulted. Women shouldn’t be sexually harassed. A condition of success in the workplace shouldn’t be seeing your boss’s penis. #MeToo showed that these rules apply to people with substantial power and money, and that complicit silence is not something we’ll accept either.

Ansari’s situation is a more fundamental challenge to the way gender intersects with consent. His conduct is, for better or worse (and probably worse) — consistent with our prevailing cultural norms about sex and gender. The examples are all too common: “Baby, it’s cold outside”; the regrettable “spike your best friend’s eggnog” ad; A Midsummer Night’s Dream’s Helena saying, “We cannot fight for love as men may do. We should be wooed and were not made to woo”; almost every Broadway musical made before 2000; etc., etc., etc.

These messages are messed up. They do tremendous harm to women. But men consume rape culture too; they learn that their job is to pursue. Men learn the rule is that they should cajole until they get a yes. I think these norms ought to change; many others do too. But that’s not where we are. Every adult in the country thinks you shouldn’t sexually assault someone, yet many believe that in the absence of a clear no, a man still has consent. As a society, we ought to move to affirmative consent, but we haven’t yet.

Is it fair to Ansari to hold him to a standard that, while undisputed in some progressive quarters, has not been universally adopted?

And, leaving aside the violence that is done to burdens of proof, is it fair to hold young men in college to those standards, when the consequences for acting in violation of them are so severe?

And even if we agree that affirmative consent is the ideal, there are massive challenges in enforcing it. Whose perspective matters — a reasonable person in the initiator’s position or the subjective reaction of the specific person being pursued? If a man reasonably believes that a woman wants him to go forward, but she’s only acting that way because she feels pressured, is that consent? At what stage in a long-term, solidly sexual relationship, if ever, can some of these rules be relaxed? (A federal judge had a pretty good point when he rejected Brandeis University’s conclusion that a person in a two-year relationship committed sexual assault by kissing his boyfriend awake instead of using an alarm.)

We do and should care about the effect of a bad sexual encounter on the aggrieved party; Grace’s reaction to her encounter is incredibly sad. But if you focus on the reaction of the woman affected by an incident (as the Babe.net piece does), does that drown out the question of whether the man reasonably thought he had consent? People, sadly, are emotionally devastated — at the time or afterward, after some reflection — by all kinds of sexual and romantic interactions; very few of these involve wrongdoing.

And will we even be able to figure out what happened when the only witnesses are two people in a room together, and much of the time they’ve both been drinking?

That said, what do we make of what’s happening to Ansari himself? He is not like the many men on college campuses who have seen their futures slip away because they’re playing by an unpopular and outmoded sexual playbook. It’s hard to say that a comedian and actor who has made his living in the public eye — particularly someone who has written a book about gender and sex and presents himself as a feminist — gets to complain about being discussed publicly in this context. If there’s going to be a test case, he’s not a bad person to start the conversation.

As a way to start a dialogue about how men ought to act, criticism of Ansari’s conduct is tremendously helpful. But to suggest that we should define sexual assault to include his conduct goes too far. To do so will create legal and institutional problems far beyond Ansari’s specific case. It’s already creating those problems on college campuses.

Matt Kaiser is a partner of KaiserDillon in Washington, DC. He recently ended a five-year stint as a columnist at Above the Law.


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