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Tuesday, September 08, 2015

Affirmative Consent and Burden Shifting, Take 2

    In my last post, I was a bit glib in my discussion of affirmative consent; so let me take this more slowly.  Suppose a woman (Complaining Witness or CW) says that she was raped but is reluctant to testify. CW proffers her roommate who states that on the afternoon in question, she heard loud music in CW’s room. Roommate knocked, and getting no response, opened the door. Roommate observed Defendant vaginally penetrating CW and immediately closed the door.

    Could Defendant be convicted of rape based only on Roommate’s testimony?

    The answer depends on how the statute is written. If part of the point of an affirmative consent standard is to show that the default should be non-consent, then rape might be defined as follows: “Any penetration, no matter how slight, of a person’s vagina or anus is rape unless it is accomplished with that person’s affirmative consent.” Under this definition, all a prosecutor needs to prove is that penetration occurred. The burden would then be on the defendant to prove (by a preponderance of the evidence? beyond a reasonable doubt?) that there was affirmative consent, just as the burden would be on the defendant to show that he was insane or under a state of duress at the time of the crime.

    Of course, lawyers are competitive creatures. We want to win. And so the prosecutor would put on whatever evidence he could to prove his case, and indeed, he might choose not to go forward with only Roommate’s testimony. But a strategic decision is not the same as one based on legal insufficiency.

    Now rape could be defined differently so that it made the absence of affirmative consent an element of the crime. For instance, it might read, “Any penetration, no matter how slight, of a person’s vagina or anus constitutes rape if accomplished without that person’s affirmative consent.” Here, a prosecutor would have to prove beyond a reasonable doubt that CW had not affirmatively consented in order to convict Defendant of rape. Under this definition, Roommate’s testimony would be insufficient to meet the burden of proof.

    Although many would find Definition #1 unfair, they might support Definition #2. But what happens when Definition #2 moves from the criminal justice setting to the university with its fewer procedural protections for the accused? Even if it might still technically be the university’s burden to prove that there was no affirmative consent, effectively, I don’t think it is. The preponderance of the evidence standard is too low, and combining that with no right to cross-examine and the pressure on universities from the Department of Education, Office of Civil Rights to convict, the result is that even if sexual assault is defined with certain elements, they do not pose any real hurdle to conviction. In practice, Definition #1 and Definition #2 become the same. 

Posted by Tamara Rice Lave on September 8, 2015 at 02:33 PM | Permalink


"vagina and anus" only? What about all those other Roman Catholic blessed orifices where sin can enter in: ear, throat or nose(!)?

Posted by: Jimbino | Sep 18, 2015 5:07:44 PM

Are the people who apply the proposed standards lawyers? Because otherwise, it does not seem likely that they would make the fine distinctions that people here make between definition 1 and definition 2.

Posted by: Jr | Sep 11, 2015 11:48:36 AM

Tamara, with all due respect, I don't think any reasonable application of a preponderance standard could find lack of affirmative consent based merely on the absence of evidence of affirmative consent. It's not "more likely than not" that affirmative consent was lacking when *the only witness is someone who *could not have heard* whether affirmative consent was granted.

Your surgery hypo nicely proves the point, and it's an even easier case. If someone looked through the soundproof viewing window of an operating room and saw an ongoing operation, would that possibly be sufficient evidence to conclude by a preponderance that affirmative consent was lacking? Of course not. Indeed, even if the proof standard were merely "some evidence" (as in parole hearings), it would be insufficient. The mere fact that an act occurred, without *any* evidence about the circumstances of the act, can't possibly be sufficient evidence that consent was lacking, *unless* the act itself is so outrageous that, res ipsa loquitor, it wasn't consensual. But, of course, normal sex acts, and indeed even most deviant sex acts, are hardly so outrageous that we can infer the absence of consent from their mere occurrence.

Again, therefore, what you're really complaining about is the obvious misapplication of the preponderance of evidence standard, not the affirmative consent standard.

And again, anyone who'd screw up the preponderance standard that badly would likely do so under a negative-consent standard too. They'd just infer the woman must have said no, even though there's no reason to do so; just as here, they inexplicably infer that she didn't say yes.

Posted by: Hash | Sep 10, 2015 3:22:25 PM

It may bear on this issue of the burden of proof to note that on at least some campuses, this is not an adjudication between a "Complaining Witness" and an accused. Rather, the parties are the "Victim/Survivor" and the accused.

E.g., http://system.suny.edu/media/suny/content-assets/documents/sexualviolenceprevention/SUNY-Policies-Sexual-Violence-Prevention-Response-Dec012014.pdf

Thus, the adjudicative process *begins* with the assumption that the complainant is a "victim/survivor", i.e., that an instance of sex-without-consent has occurred. Whatever procedural protections exist for the conduct of the adjudication, doesn't that starting point suggest that, to some degree, the burden of proof is on the accused?

I also note that, according to this SUNY policy, the "victim/survivor" appears to have the immediate right to demand that the accused be subjected to various restrictions (i.e., punishments) *before* any adjudicative process takes place. Doesn't this "first the sentence, then the trial" process suggest something about the burden of proof?

Posted by: Brennan | Sep 10, 2015 3:20:52 PM

The surgery comparison is very instructive. The parallel case would be someone testifying that they looked into the operating room of a hospital and saw John having surgery. Are you suggesting that it would be reasonable to infer from this evidence, and only this evidence, that it is more likely than not that John did not consent to the surgery and the surgeon is liable for assault & battery?

Posted by: Griff | Sep 10, 2015 2:43:04 PM

Griff, Thanks for thinking this through with me. Actually, I don't think one would need to assume that rape was more common than consensual sex to make my point. Let's look at it like this. Affirmative consent proponents often compare sex to surgery. They say something like, we don't just assume a person has consented to surgery just because that person never said she didn't want surgery. We make sure that she actually consented first. Affirmative consent proponents are not saying that most surgeries are non consensual; they're just saying that as a matter of respect and public policy, we want to ensure that the surgery has been affirmatively consented to.

Thus, in my scenario, the fact that there is a sexual penetration means that there must be affirmative consent or it is rape. Roommate testifies that she observed penetration, and she did not hear CW affirmatively consent. She also testifies that she didn't see CW do things with her body that clearly communicated affirmative consent. Is that enough to meet the burden of proof? Certainly not under BRD, but what about preponderance? And what about a very squishy preponderance standard, which is what seems to operating in at least some university disciplinary proceedings.

And I emphasize again, Defendant would have no choice but to put on evidence that there had been affirmative consent.

Posted by: Tamara Lave | Sep 10, 2015 2:31:36 PM

Any scenario under which the roommate's testimony would be sufficient -- under ANY standard of proof -- is a scenario under which literally all sex is presumptively impermissible. There is no rational basis to infer a lack of consent (affirmative or otherwise) from the roommate's testimony unless the fact finder takes as given that a majority of all the sex that ever occurs is nonconsensual (at which point it would be reasonable to conclude it more likely than not that any given act of sex was not consensual). If, on the other hand, we live in a world where consensual sex is more common than rape, it is irrational to infer from the fact of sex that no consent was given.

And now I actually have talked myself around to a version of your point. Taking the most extreme interpretation of the most extreme version of "affirmative consent" codes of conduct at universities, it may in fact be reasonable to assume that most people don't literally ask for and receive verbal permission prior to every sex act. Thus, by changing the definition of "sexual misconduct" in such a way as to technically forbid most sexual conduct that occurs in the real world, the university may have created a situation where it is reasonable to infer by a preponderance of the evidence that sexual misconduct has occurred merely from the fact of sex. Is this something like what you're getting at?

Posted by: Griff | Sep 10, 2015 1:14:26 PM

Hash, certainly the lack of procedural protection is a problem no matter the definition of rape. I just think that affirmative consent plays out differently than the other definitions, but let me try and explain why using the fact pattern I set forth above.

DEFINITION 1: Rape is nonconsensual penetration.

Preponderance: Roommate's testimony would be insufficient under the preponderance standard because she observed nothing that would make any reasonable fact finder believe that there was a lack of consent.

Beyond a reasonable doubt: Clearly, Roommate's testimony would be insufficient under a BRD standard.

DEFINITION #2: Rape is penetration without affirmative consent.

Preponderance: Roommate's testimony might be found sufficient under preponderance. University Dean or Title IX Officer could argue that Roommate never heard CW affirmatively consent to the penetration and never saw CW perform any actions that clearly conveyed affirmative consent. Note that it would then be the responsibility of Accused to convince the factfinder(s) otherwise.

Beyond a Reasonable Doubt: Roommate's testimony would be insufficient under the BRD standard.

Posted by: Tamara Lave | Sep 10, 2015 10:55:53 AM

Tamara -- each and every thing you identify would be no less problematic under a "negative consent" standard. If the lower standard of proof, the inhibition of cross-examination, and the reciprocal discovery don't "shift the burden of proof" under a "negative consent" definition, how do they magically do so under an "affirmative consent" standard. Conversely, if universities used the BRD standard, allowed cross-examination, and shielded deft from discovery, would the "affirmative consent" standard magically stop "shifting the burden of proof"? It seems pretty clear that your real gripe isn't actually with the substantive standard for consent, but with these other procedural issues.

Posted by: Hash | Sep 10, 2015 10:20:36 AM

Paul, Thanks for your comments. First, convict is a strong word. And you are right, it is technically wrong since this is not a criminal process. I use it to be provocative.

Why do I think that universities are under pressure to return a finding of responsibility against the accused? Here's why. The 2011 Dear Colleague Letter (DCL) stated in no uncertain terms that universities needed to do something to prevent campus rape, which is a good thing. It then told universities that they either must or should make certain procedural changes, and these changes had the effect of making it easier to find accused students responsible. I point to three in particular: lowering the standard of proof to preponderance; strongly discouraging the accused from directly questioning the complainant, and telling universities that they “should not allow the alleged perpetrator to review the complainant’s statement without also allowing the complainant to review the alleged perpetrator’s statement.” (DCL, page 11-12)

Furthermore, unlike the DOE's 1997 and 2001 Guides, the DCL paid very little attention to the procedural rights of the accused. The 2001 Guide even had a section entitled, "Due Process Rights of the Accused." The DCL, in contrast, almost begrudgingly states that schools must provide alleged perpetrators with due process rights, and it follows that sentence by once again emphasizing the rights of alleged victims.

In addition, the DOJ has an explicit policy against releasing information on current investigations except in unusual circumstances for a variety of reasons including considerations of fairness to Defendants. Yet, DOE has decided to publish a list of schools under investigation. And the list continues to grow.

Finally, I have spoken with university administrators and Title IX officials at different universities about this issue. Some voiced feeling pressure to return a finding against the accused; others felt pressure not to find the accused not responsible.

One last thing, I am not saying that campus rape isn't a problem. It is. Nor am I saying that universities have done a great job handling it in the past. They haven't. But what I am saying is that this "correction", is weighted too heavily against the accused.

Posted by: Tamara Lave | Sep 10, 2015 5:38:37 AM

As other commentators have said, I worry that the premise of your argument is either an astonishing level of incompetence or an astonishing level of gross bias on behalf of university administrators. But without empirical data to support this, all we have are those few extreme cases on either end that make it into the media.

Let's start with one more focused question. Why do you say that there is pressure from the DoE, not just to investigate, or to have a process, or to use an affirmative consent standard, but actually to *convict?* (assuming for the sake of argument that "convict" is the right term here, which I'm still not inclined to concede.)

Posted by: Paul Gowder | Sep 9, 2015 9:09:25 PM

Why, I wonder, does assigning the burden of proof by a preponderance of the evidence work satisfactorily in ordinary civil litigation, without producing claims that the defendant is effectively required to prove an element of the plaintiff's claim, and, in particular, why is there no objection to the assignment of the burden of proof in civil cases involving sexual battery in which the plaintiff is required to prove consent, again without provoking claims that this somehow shifts the burden of proof to the defendant, but this very same approach somehow becomes defective when litigated in a university setting? Is there any empirical evidence to support the claim that university adjudicators have less ability to administer the burden of proof than do adjudicators in other types of civil litigation?

Posted by: Larry Rosenthal | Sep 9, 2015 4:11:25 PM

I agree, Larry, that I would be making quite an outrageous claim if I said that burdens of proof have no meaning in civil court. I am referring, however, to the university context and to sexual assault claims in particular.

Posted by: Tamara Lave | Sep 9, 2015 3:16:50 PM

If the position is that in civil litigation governed by the preponderance standard, the manner in which the burden of proof is assigned is meaningless, surely some empirical evidence should be gathered to support such a surprising claim. After all, civil cases involving sexual assaults and batteries have long been governed by the preponderance standard, yet no one seems to think that this has effectively required defendants to prove the lack of consent in such cases, or otherwsie created such difficult problems that the civil burden of proof in such cases must be reformed. If the claim is correct than whenever the burden of proof is by a preponderance of the evidence, the defendant is effectively and unfairly required to prove nonliability, then it seems to me that an enormous amount of civil litigation governed by the preponderance standard requires fundamental reform.

Larry Rosenthal

Posted by: Larry Rosenthal | Sep 9, 2015 3:06:24 PM

Put differently, in order to show universities were "effectively" shifting the burden of proof, you'd have to identify some reason to think that they were presuming lack of consent even where evidence didn't suggest that by a preponderance. And if you could make that showing, it'd likely be equally true regardless of whether consent standard was affirmative or negative. Because the problem would be the lax evidentiary presumption, not the substantive definition of consent.

Posted by: Hash | Sep 9, 2015 8:40:52 AM

But Tamara, you haven't actually pointed to anything "in real life" to support your doubt whether universities are actually being required to meet their burden. The only thing you've mentioned is the various diminished procedural protections in the university setting. But as numerous folks here have all observed, that's got nothing to do with whether universities are being "effectively" relieved of the burden of proof that you concede they "technically" have.

Again, to use your very own hypo: under Definition #2, even in the university setting with its preponderance standard, absence of cross-examination, etc. etc., the university couldn't just introduce the Roommate's testimony and rest its case, because there *indisputably* would be *no evidence whatsoever* upon which the university could carry its burden of proving absence of consent -- even under a "scintilla of evidence" standard and an absolute ban on cross-examining the Roommate. Unless and until either the Roommate or the Complaining Witness at least suggested the absence of consent, the Deft would prevailed. Ergo, the university must satisfy its burden of proof, both "technically" and "effectively."

To be clear, I don't doubt that universities are too quick to find defts guilty in this particular context. I just don't think it has anything at all to do with "shifting the burden of proof" -- or, at least, you haven't identified any reason why it does.

Posted by: Hash | Sep 8, 2015 10:49:42 PM

Hash, I don't disagree that legislatures would have the right to craft a statute like Definition #1, but I think a lot of people would be troubled by it. And I absolutely agree, Larry, that as a matter of law, Statute #2 requires the state (or the university) to prove that there was no affirmative consent. My point is that in real life, I doubt whether universities are actually being required to meet their burden which effectively forces the Defendant to prove that there was affirmative consent.

Posted by: Tamara Lave | Sep 8, 2015 9:58:06 PM

The overall burden of proof under scenario 1 (scenario 2 is not affirmative consent at all; it is bog-standard negative consent) is not "shifted." What has happened is that a proposition that would have been an element of the offense at common law has been reclassified as an affirmative defense.

But state legislatures are entirely free to define the elements of a crime (so long as doing so does not violate the Constitution's substantive prohibitions) and defenses thereto as they see fit. We are not bound by the common law (e.g. the common law's requirement of "resistance" has been eliminated outright). I am simply not grokking the LEGAL (as opposed to policy) objection here.

I think your last paragraph is a telling concession of your real objections here: that campus-justice procedures fail to provide procedural due process. I actually tend to agree, but this has nothing whatsoever to do with affirmative consent.

Posted by: Paul Thomas | Sep 8, 2015 8:24:55 PM

Your own hypo disproves your point. Definition 1 as you've construed it (i.e., with consent as an affirmative defense) is fundamentally different from Definition 2, because the Roommate's testimony alone would be *legally insufficient* under Definition 2, *even* in the university setting with its fewer procedural protections. After all, as you seem to acknowledge for the criminal setting, Roommate's testimony provides *no evidence whatsoever* that there was a lack of affirmative consent, and so *under any standard of proof*, the prosecution would lose so long as it bore *the burden of proof* (which it does under Definition 2). Simply put, under Definition 2, the victim would have to testify in *either* criminal or university proceedings.

Posted by: Hash | Sep 8, 2015 7:22:36 PM

I am afraid that I do not see the problem. Under a regulation defining sexual assault as "[a}ny penetration, no matter how slight, of a person’s vagina or anus . . . if accomplished without that person’s affirmative consent,” even in a university setting in which the burden of proof is by a preponderance of the evidence, there must still be sufficient evidence to enable a reasonable trier of fact to find that it is more likely than not that the penetration was accomplished without consent. Accordingly, evidence that proved no more than penetration would not sustain the burden of proof -- the record contains no evidence that makes is more probable than not that the penetration was accomplished without consent. Unbridled speculation is never sufficient to discharge a burden of proof (or to avoid summary judgment) in a civil case. This would not be true if consent were an affirmative defense on which the defendant bore the burden of proof by a preponderance of the evidence.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Sep 8, 2015 5:54:05 PM

This is essentially asking whether consent (however defined) is an affirmative defense of the old style or not. It is worth noting that plaintiff borne affirmative defenses are very rare today. For example, the prosecution bears the burden of disproving self defense (once it is raised) in every state except Ohio.

I have a theory that this sea change in state law resulted from a misreading (in retrospect anyway) of In Re Winship, but I don't have proof.

To restate my objection from the last post, I don't know what it is supposed to mean that a burden is "effectively but not technically" shifted or what a lower standard of persuasion or poor evidentiary rules have to do with it. Speaking of things like burdens of proof and standards of persuasion is inherently "technical" and there's wrong with that. Scholars should not be ashamed to be precise and correct. On the contrary.

Posted by: Brad | Sep 8, 2015 4:39:48 PM

I am confident that your statute #1 would be interpreted by literally any court in the country to incorporate lack of consent as an element of the crime. A legislature would have to be more explicit if it wanted to literally make ALL SEX a felony. And if they were more explicit (e.g., "Any penetration, no matter how slight, of a person's vagina or anus is rape. Proof by the defendant of affirmative consent shall constitute a defense to this charge."), the statute would certainly be unconstitutional under Lawrence.

Posted by: Griff | Sep 8, 2015 3:03:59 PM

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