« Podcast on Crazy in Alabama | Main | Museum of Tort Law »

Friday, September 11, 2015

Affirmative Consent and Burden Shifting, Take 3

            I have been arguing that affirmative consent in effect shifts the burden of proof to the accused because universities do not afford adequate procedural protection. But now I’m going to go one step further. As long as the standard of proof is preponderance, the burden is on the accused to prove there was affirmative consent. Furthermore, affirmative consent means that consensual sex can be successfully prosecuted as rape.

            Affirmative consent proponents pooh-pooh these claims. They insist that the burden is on the state, and it meets that burden when the victim takes the stand and testifies that she never affirmatively consented. Although they may not admit it, there is an implicit assumption that a person wouldn’t go through the trouble of saying she hadn’t affirmatively consented unless the sex had actually been nonconsensual. Proponents can rest easy believing that they are only prosecuting men that penetrated women who said “no” or would have said “no” if they hadn’t been traumatized by what was happening.

            But what happens if the complaining witness isn’t the purported victim?

            Say two women, A and B, are college roommates. A (who is admittedly a bit of a voyeur) wakes up in the middle of the night and sees B having vaginal sex with Accused. A observes them for at least twenty minutes before falling back asleep. Never does A hear B tell Accused that she wants him to penetrate her, and never does she see B doing anything that clearly conveys that she wants him to do so. The next morning, A reports that B has been raped. At the hearing, only A testifies. Since the sole evidence is sex without affirmative consent, that is sufficient under a preponderance standard to find Accused responsible.

            What happens if Accused takes the stand and says that A did affirmatively consent?  (This is the burden shifting that I’m talking about.) Now it’s Accused’s word against A’s. I was a public defender for ten years, and I can hear the argument that the state would make. “Who has the motive to lie here?  A, the concerned roommate, or Accused who faces expulsion for rape?” Unless Accused has proof that either A is biased or B affirmatively consented, I think he’s still likely to found responsible.

            And what if Accused goes one step further and actually calls B to the stand? B testifies that she did want to have sex with Accused. On cross examination, however, B admits that she never actually told Accused that he could penetrate her, nor did she ever perform any acts that clearly conveyed that she wanted him to do so. But, A insists, “I really wanted to have sex with him.” Is Accused off the hook? Once again, I can imagine what the state would argue. “B is just covering for Accused. She doesn’t want him to get in trouble. Indeed, this is exactly what domestic violence victims do.”

            Even if the fact finder believes that B really did want to have sex with Accused, under the letter of the statute, Accused is responsible. Consider SUNY’s statute, “Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.” Unless the fact finder nullifies, Accused is guilty.

            As written, the woman’s state of mind is relevant but not determinative. It is action that matters. The problem is that not all women have lawyer sex (I, declare under penalty of perjury that I am fully consenting to this act of penetration) or porn star sex (My p*ssy is so hot and wet. You need to f*ck me now). Nor do all women want to be on top. People may say that a university would never go forward with the case above, but I am not so sure. Title IX requires them to take all complaints seriously.

            I am not being provocative. I am very, very concerned. 

Posted by Tamara Rice Lave on September 11, 2015 at 03:09 PM | Permalink



That language is part of the affirmative consent rule:

"(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent."

Posted by: Derek Tokaz | Sep 16, 2015 11:07:00 PM

Derek, first of all, I'm not sure "past" sexual relations would ever have been interpreted to include earliest instances of penetration during a single course of intercourse. Second, even if it would have, I presume that language was enacted prior to an affirmative-consent rule. It'd be pretty absurd to apply it so literally as to require a refreshing of consent prior to each act of penetration during intercourse. Finally, and most importantly, even if CA was that crazy, the problem would be that rule, not the affirmative-consent standard, much less a shifting of the burden of proof.

Posted by: Hash | Sep 15, 2015 10:54:41 AM


Under the California rule: "The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent."

Based on that language, I think a campus disciplinary panel would be right to ignore evidence of prior consent, even consent given earlier in the same incident.

Posted by: Derek Tokaz | Sep 15, 2015 9:02:30 AM

Tamara, while prior consent does not necessarily mean current consent, the prosecution has the burden of proving lack of affirmative consent, and it'd be pretty hard pressed to do so in the face of prior affirmative consent and no subsequent conduct evidencing withdrawal of the consent.

Regardless, though, one last time, all you've identified is a *substantive* problem with the affirmative-consent standard when paired with the prior-consent-not-dispositive rule. Namely, that it punishes conduct that shouldn't be punished, by treating as unlawful sexual acts where affirmative consent isn't refreshed, but where no one can seriously doubt that consent existed. Again, this has nothing whatsoever to do with "shifting the burden of proof." There's no question about the facts here, or about the inferences that can/should be drawn from the facts -- it's simply a case of watering down the definition of rape to cover ordinary sexual conduct, in a misguided quest to alter sexual relationships by encouraging parties to provide affirmative consent even in circumstances where that is quite unnatural and unnecessary. Criticize that all you want, and I'd happily agree -- just don't call it "shifting the burden of proof," because it's not.

Posted by: Hash | Sep 14, 2015 1:22:52 PM

Casey, see Donohue v. Baker, 976 F. Supp. 136 (N.D.N.Y 1997) and the cases cited therein.

Posted by: David Bernstein | Sep 14, 2015 1:04:32 PM

Hash - Your critique assumes that rape is defined as an entire sexual interaction from start to finish, but it's not. Remember, every penetration that is not affirmatively consented to is a rape. That means, literally, that every time the Accused's penis re-enters B's vagina without affirmative consent it is a rape.

And to further illuminate the tragic absurdity of my hypo, consider this. A person's prior consent to sex does not mean that person is currently consenting. This makes sense when rape is defined as non consensual penetration. When it's defined as penetration without affirmative consent, under the letter of the statute, B must affirmatively consent at every penetration. Thus even if B testified that she told Accused he could penetrate her before A was watching, that's not enough to constitute affirmative consent twenty minutes later.

You might say I'm crazy. The state would never treat every penetration as a rape. But in my experience as a public defender, sometimes they do.

You might say that a fact-finder would never conclude that Accused was responsible for rape if B affirmatively consented at the beginning of the sexual encounter. Maybe. But remember the standard or proof is preponderance. As my friend Ekow Yankah so elegantly put it, "a knife's edge."

Posted by: Tamara Lave | Sep 14, 2015 10:43:43 AM

PS. I suppose there is one possible tweak to your hypo that would justify distinguishing between affirmative and negative consent standards, but it still doesn't help you. Namely, if the roommate saw the *entire* sexual encounter (including a reasonable period before and after), and *never* saw any objective word or conduct evidencing either affirmative consent or non-consent, then a finding of lack of affirmative consent would be proper, but a finding of non-consent would be improper.

This too, however, has nothing to with shifting the burden of proof. It has to do with the substantive standard for affirmative consent -- namely, that consent must be *objectively* provided, such that subjective intent of the parties is irrelevant. The burden of proof is irrelevant, because there's no evidence available in this hypo that the deft could introduce even if he wanted to -- he's simply guilty, under the draconian affirmative-consent standard. Again, a perfectly fine reason to object to affirmative-consent standards, but one that has nothing to do with shifting the burden of proof.

Posted by: Hash | Sep 14, 2015 10:01:16 AM

But Tamara, your hypo also has no evidence of lack of affirmative consent. As you said, the roommate just saw two people having sex. If that's the only evidence, even under a preponderance standard (or a "some evidence" standard), how can a factfinder conclude that there was a lack of affirmative consent -- as it must where lack of affirmative consent is an element.

Again, why is this different from the surgery hypo? If a nurse sees a doctor doing a procedure on a non-generally-anesthetized patient, and the patient doesn't say or do anything one way or the other, that's obviously not enough to find lack of affirmative consent to surgery.

Again, it seems to me like you're either converting affirmative consent into a defense, or watering down the preponderance standard for lack of affirmative consent but not non-consent. Now, maybe universities are doing that, but then that's what you should be complaining about, not the affirmative-consent standard itself.

Posted by: Hash | Sep 14, 2015 9:18:27 AM

While I find the affirmative consent issues fascinating, I think the commenters on the Board are overestimating the amount of "Due Process" rights that students get in disciplinary proceedings. For instance, Mr. Bernstein commented that "No court in the United States would consider the procedures dictated by OCR consistent with due process for a defendant in a civil or criminal trial." Similarly, Mr. Rosenthal's commented that ""Nor am I confident that the federal government can require universities to deprive an accused student of the right to cross-examine adverse witnesses consistent with the Due Process Clause (an issue not raised by the post on which I have commented)."

I just want to point out that courts are more or less universal since Goss v. Lopez and Matthews v. Eldridge in concluding that students (in a public education setting) do not have the right to counsel or to cross-examine adverse witnesses in school disciplinary settings. To the extent that students have any of these rights, they would be statutory, and not as a matter of due process under the 14th Amendment. Even more plainly stated, under the 14th amendment, federal courts have rarely found that due process includes either the right to counsel or the right to cross-examination in school disciplinary proceedings. The Sixth Circuit, in Newsome v. Batavia Local Sch. District, even went so far as to say that the accused did not even have the right to know the names of his/her student accusers in school disciplinary proceedings where the accused faced expulsion because the school's obligation to protect student witnesses outweighed the value of allowing accused students to cross-examine their accusers. See also Wagner v. Fort Wayne Cmty. Schs., 255 F. Supp. 2d 915, 926–27 (N.D. Ind. 2003) (noting the “mountain of case law” derived from “Newsome and its progeny” that holds students do not have the right to cross-examine witnesses at school hearings).

Posted by: Casey Nathan | Sep 13, 2015 2:22:48 PM

Larry, no, I don't disagree with you, with one exception: if colleges routinely let the police handle regular cases of "assault", letting the police similarly handle cases of "sexual assault" would be not be a violation of Title IX, but for the fact that sexual assault is deemed a form of sexual harassment, and therefore inherently subject to Title IX. In other words, it's not necessarily disparate treatment of sexual assault cases that triggers Title IX.

Posted by: David Bernstein | Sep 13, 2015 10:25:44 AM


I certainly did not intend to suggest that everything in the "Dear Colleague" letter is required by Title IX. Nor am I confident that the federal government can require universities to deprive an accused student of the right to cross-examine adverse witnesses consistent with the Due Process Clause (an issue not raised by the post on which I have commented), though I do think that the matter is not free from doubt in light of Board of Curators of the University of Missouri v. Horowitz, as well as the fact that the Confrontation Clause of the Constitution applies only to criminal cases, suggesting that the Due Process Clause imposes a lesser standard. I am, however, willing to defend the narrower claim (made in the first few pages of the "Dear Colleague" letter) that Title IX, as construed by the courts, requires that universities not be deliberately indifferent once put on notice that female students have been subjected to nonconsensual sex -- some sort of disciplinary response that is not "clearly unreasonable" is required. That system of disciplinary must, of course, also be nondiscriminatory. Surely a disciplinary system that made it more difficult to sustain allegations of sexual harassment that other alleged disciplinary violations that do not implicate Title IX would violate Title IX for that reason. Imposing a heightened burden of proof in disciplinary cases involving allegations of sexual assault but no other category of cases could therefore be regarded as discriminatory within the meaning of Title IX. I do not understand your comment to quarrel with any of this, but if I am wrong, I know you will set me straight.


Posted by: Larry Rosenthal | Sep 12, 2015 10:16:07 PM

Larry, there is nothing in Title IX that requires anything remotely approaching what the DOE's OCR has imposed on universities nationwide via "Dear Colleague" letter. You can read the letter yourself, and not the absence of citation to any relevant caselaw. I have a forthcoming book which tangentially addresses the underlying legal issue (keeping in mind that sexual assault comes under Title IX, according to the DOE, as a form of peer on peer harassment):

The Supreme Court itself has stated in the context of Title IX that at least when university officials are sued for allegedly not properly intervening in student-on-student harassment “courts should refrain from second guessing the disciplinary decisions made by school administrators.” School officials “must merely respond to known peer harassment in a manner that is not clearly unreasonable.”
Even if Title IX does give OCR the power to dictate campus disciplinary rules, OCR needed to go through the normal notice and comment regulatory process before making new regulations, rather than just announcing them through a “Dear Colleague” letter that is subject to neither normal administrative safeguards nor to judicial review. Finally, even if OCR had followed proper procedures, the content of the letter likely violates the Due Process Clause of the Constitution by requiring universities to deprive their students of ordinary due process considerations when putting an important right, their right to pursue and finish their college educations, in jeopardy. Courts have consistently held that the government acts illegally when it forces a private institution to treat an individual in a way that would be illegal if the government did it directly.
No court in the United States would consider the procedures dictated by OCR consistent with due process for a defendant in a civil or criminal trial. Things get a bit fuzzy, because students typically are not entitled to full due process rights when being disciplined by government-run schools. Nevertheless, OCR cannot simply impose whatever standards it wants. In contrast to the OCR guidance, for example, at least one court has held that in the context of a disciplinary hearing at a state university, an accused student has a due process right to cross-examine his accuser when the outcome turns on the accuser’s credibility, even when the hearing involves a sensitive subject like an accusation of sexual assault.

[This isn't directly responsive to the point about affirmative consent, but the claim that Title IX somehow dictates more generally what's been going on is wrong.]

Posted by: David Bernstein | Sep 12, 2015 6:48:28 PM

Hash - The hypo I have put forth involves two people having sex. There is absolutely no evidence of non consent. I do not think Accused could be found responsible for rape under a preponderance standard, or even a probable cause standard.

You are right of course that preponderance is part of the problem. But part of the problem, in my opinion, is using an affirmative consent definition of rape.

Posted by: Tamara Lave | Sep 12, 2015 3:14:46 PM

Larry, I am absolutely not saying that a woman's testimony (or a man's for that matter) that she was raped should be insufficient as a matter of law. Indeed, as I stated earlier, one person's testimony that she was raped can be sufficient even under a beyond a reasonable doubt standard.

You are correct that I think the standard of proof should be clear and convincing evidence, but I wouldn't put it the way that you did. As the Court put it in Addington v Texas (1979), the function of the standard of proof is to “‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular adjudication.’” Setting a high or low standard is a way of “allocate(ing) the risk of error between the litigants and indicat(ing) the relative importance attached to the ultimate decision.” The Court then differentiated between types of cases across the spectrum. At one end lies the archetypal civil case involving a pecuniary dispute between private parties. “Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.” This is to be contrasted with criminal cases in which “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Because so much is at stake, the state has the burden of proving guilt beyond a reasonable doubt, which is a way of guaranteeing “our society imposes almost the entire risk of error on itself.” It is my strong opinion that preponderance does not adequately take into account what is at stake for the accused. A mere feather should not be enough to tip the scales. But please note that I am not arguing for proof beyond a reasonable doubt in university hearings. I think that is too high for what is at stake.

Indeed, I think the standard of proof for all misconduct that can result in suspension or expulsion should be clear and convincing evidence. And I note that there are universities that set a higher standard of proof for all misconduct except that involving sex. At UVA for instance, the standard of proof is beyond a reasonable doubt for everything except sex crimes.

Posted by: Tamara Lave | Sep 12, 2015 3:09:33 PM

Title IX should not be invisible here. If we agree that Title IX permits regulations that require (and probably even requires regulations) mandating that Universities adopt and enforce policies against nonconsensual sex (at least once placed on notice that there is a problem), then the position seems to be that Universities should refuse to discipline students who more likely than not have engaged in nonconsensual sex with an unwilling victim unless the allegation can be proved by clear and convincing evidence. In practical effect, I suppose, the policy would be ;to train adjudicators that in swearing matches that turn largely on the credibility of the victim, they should never believe the victim. Of course, this would leave the preponderance standard intact in all other cases in which sex is not involved. Is the differential treatment justified? I wonder. For example, the risk of error in adjudicating an allegation students impermissibly collaborated on an assignment -- especially when based on circumstantial evidence such as similarities in work product -- may not be any different than the risk of error in adjudicating a claim of that a student engaged in nonconsensual sex, but the proposal would impose an extraordinary burden of proof only on sexual offenses. I have very grave doubts that Title IX would permit that policy. It sounds like sex discrimination to me. At a minimum, if I were a university counsel, I would demand that the advocates of such reform provide compelling empirical proof of a special risk of error in sex offenses before adopting such a policy.

There is, of course, a historical pedigree for treating proof of sex offenses differently. The law of rape used to require corroboration of the victim's testimony because of what was regarded as the high risk of error in relying on the testimony of the victim of an alleged sexual assault. Corroboration of the victim's testimony was not required for other offenses. Today, we regard that outmoded evidentiary requirement as a form of sex discrimination. It seems to me that this proposal is yet another attempt to treat the proof in cases of sexual assault as somehow more suspect than the proof in other types of cases. If we are going to talk about burdens of proof, I would place the burden of proving this empirical claim on the proponents of extraordinary burdens of proof.

Larry Rosenthal

Posted by: Larry Rosenthal | Sep 12, 2015 12:53:46 PM

Tamara,again, your hypo has nothing to do with affirmative-consent standard, and everything to do with what counts as a permissible inference re: consent (however defined).

Again, keep all the facts of your hypo the same, but assume instead a negative consent standard that likewise focused on the women's objective actions rather than subjective state of mind. The roommate could still testify that, based on what she saw, she thinks the victim clearly was not consenting. Under a preponderance standard, the jury could believe that, and thus accused would have to take the stand as a practical matter, might not be believed based on relative motives, and might still be convicted if victim claimed she was subjectively consenting.

If instead you don't think a preponderance standard would allow a finding of guilt on my hypo, then you shouldn't under yours either. And, by the way, that may well be right -- again, as in the surgery hypo from the prior post, merely seeing an act occur without objection is hardly sufficient to infer that affirmative consent was lacking.

Finally, as i've mentioned before, i'm most certainly not a supporter of affirmative consent laws. I think they're a terrible substantive idea, and I share many of your concerns about procedures in university sex-assault investigations. I just don't think you should be mischaracterizing the basis of your objections as a "shift in burden of proof" in order to misleadingly leverage the rhetorical force of that accusation. The problem with affirmative-consent laws is that they punish conduct that normatively shouldn't be punished -- or at least allow the fact-finder to so conclude. Shifting BOP has nothing to do with it.

Posted by: Hash | Sep 12, 2015 12:34:50 PM

"I don't quite understand what's at stake here. Why are you trying to argue against the preponderance and affirmative consent through the backdoor of arguing that they "effectively" shift the burden rather than just arguing against them directly?"

I was wondering the same thing. I have a substantive problem with "affirmative consent" and the preponderance standard, but I have trouble seeing why that should be characterized as effectively shifting the burden of proof. So let me suggest what an “effective” shift in the burden of proof could look like in the context of allegations of campus sexual misconduct. Nominally, the university administrators must prove (to another set of university employees) that the victim's accusation is more likely than not true. I am assuming that a large number of the potentially problematic sexual misconduct cases handled by universities (i.e., where the nature of the burden of proof is likely to be outcome determinative) boil down to "he said/she said" disputes that turn on the credibility of the two parties. If, however, the adjudicators were systematically biased to credit the "victim/survivor", wouldn't that be an effective shift in the burden of proof? So we should look at sources of systematic bias that would incline adjudicators to believe the victim/survivor. What conclusions should be drawn if adjudicators are, for example, told *as part of their training for their adjudicative role* that “only 2% of rape accusations are false”, or that changes in a victim/survivor's account actually confirm the existence of a major traumatic event? What if adjudicators are involved in or aware of the pre-adjudication punishments imposed on some accuseds, because they are presumed to be dangerous to the victim or to the community?

Those are all empirical issues, and could have different answers at different institutions, of course. But isn’t it possible to effectively shift the burden of proof in a credibility dispute by systematically training adjudicators to credit the victim?

Posted by: Brennan | Sep 11, 2015 8:29:57 PM

I have only a moment to respond, Brad, but I just wanted to say that I am not arguing for a beyond a reasonable doubt standard in disciplinary proceedings. I agree with you that what is at stake for the accused does not warrant such a high standard. Unlike you, though, I believe that preponderance is too low. I think it should be clear and convincing evidence.

What I am trying to do is show the problems with affirmative consent, especially in the context in which it is being used.

Posted by: Tamara Lave | Sep 11, 2015 5:40:15 PM

It's a well and good to be concerned, but I don't see why you need to distract from reasonable objections by mislabeling them.

In your latest hypo the school puts on a witness that offers evidence of a lack of consent. In the hypo at least, that evidence is credited by the trier of fact and is sufficient to make it more likely than not there was no consent. By the hypo's own terms the burden is on the accuser and it is meet.

I don't quite understand what's at stake here. Why are you trying to argue against the preponderance and affirmative consent through the backdoor of arguing that they "effectively" shift the burden rather than just arguing against them directly?

For example, the last paragraph argues that affirmative consent, as defined by SUNY, does not match the ways that people have consensual sex in the real world. I'm not sure that's true given that it allows for words or actions, but if it is it is a good argument against the mooted consent standard even though it has nothing at all to do with burden shifting.

I think the argument for beyond a reasonable doubt is quite a bit more difficult. Preponderance is used for arguably higher stake decisions (e.g. kicking a resident out of public housing or attorney discipline in some states) and if you include clear and convincing some really harsh outcomes (e.g. confinement as a sexual dangerous person or removing a permanent resident). But even there I don't see why you need to convince anyone that preponderance is effectively shifting the burden in order to argue for the beyond a reasonable doubt standard.

Posted by: Brad | Sep 11, 2015 4:56:13 PM

I meant trier of fact.

Posted by: Tamara Lave | Sep 11, 2015 4:25:02 PM

Larry, thanks for the comments. Actually, I do not think that the trial of fact would be more likely to infer from the failure of the victim to testify that it is more likely than not that the victim consented. I think that's completely speculative. There are lots of reasons people don't testify. For instance, they might be scared, uncomfortable, or embarrassed.

Second, I have never said that a university has no right to take action in cases of nonconsensual sex. They absolutely do and should. I am criticizing affirmative consent as the definition we use for rape. And I note that affirmative consent is an alternative definition to lack of consent.

Posted by: Tamara Lave | Sep 11, 2015 4:01:00 PM

I doubt that a case of this type has ever been brought. In the unlikely event that it were, the trier of fact would be likely to infer from the failure of the victim to testify that it is more likely than not the victim consented. If this were a real problem (I suspect it is a problem only in the feverish imagination of law professors), surely the correct answer is to amend the regulations to make clear that proof of this sort is insufficient to sustain a complaint (indeed an institution that sustains complaints or even prosecutes on this type of evidence might well be violating the Title IX rights of male students). Surely this problem is not so serious that it warrants rejecting the view that a University that permits its students to have nonconsensual sex with other students, or which is deliberately indifferent to incidents of nonconsensual sex -- conduct which, of course, the common law has long treated as tortious without any need to resort to the concept of rape has violated Title IX. That view, it seems to me, falls comfortably within the ambit of Title IX. If there is an argument that Title IX has nothing to say about universities that permit their students to engage in nonconsensual sex with other students, I'd like to see it. Such an argument has not yet appeared in any of these posts.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Sep 11, 2015 3:50:09 PM

The comments to this entry are closed.