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Thursday, September 03, 2015

Affirmative consent and switching the burden of proof

I have been thinking a lot about affirmative consent in sex cases. I understand why advocates want affirmative consent as a policy matter; certainly, people should ensure that they are only having sex with partners who actually want to be doing whatever conventional or freaky act they happen to be engaged in. But I have a problem with legally requiring affirmative consent. I don’t see how making a person prove that her partner consented doesn’t switch the burden of proof to the accused.

 When I was a public defender, I used to always remind jurors that because the BOP was on the prosecutor, I could literally say nothing, and still, if the D.A. didn’t prove the case beyond a reasonable doubt, they would have to acquit. But with affirmative consent, the accused must put on evidence. If the university proves by a preponderance of the evidence that a sex act happened, the student has violated the university code of conduct unless he can convince the fact finder that the complainant consented.  

 Alas, New York and California have enacted affirmative consent laws, and other states are considering following. I find this trend to be extremely troubling and am relieved that at least one judge is similarly critical of affirmative consent. The case I am referring to is Mock v University of Tennessee at Chattanooga, and it was decided on August 4. Corey Mock was alleged to have had non-consensual sex with a female student.  At the hearing, the Administrative Law Judge found that UTC had not carried its burden of proof and dismissed the charges. The complainant then spoke with the Chancellor, who petitioned for reconsideration. Although the ALJ did not change any findings of fact, she changed her overall conclusion. Mock appealed to the Chancellor who upheld the order and expelled Mock. Mock then appealed to the Chancery Court.

 In her opinion, Chancellor Carol L. McCoy wrote, “Under the ALJ’s Revised Initial Order, a person accused of violating SOC7 must overcome the presumption inherent in the charge that the violation has been established. Mere denial of the accusation is insufficient.  The accused must prove the converse of what is taken as true and credible, i.e., the complainant’s statement that no consent was given.  He must come forward with poof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to any activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

 After finding that the UTC Chancellor “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris,” Chancellor McCoy reinstated the original order of the ALJ and reversed the decision of the UTC Chancellor.

 I applaud Chancellor McCoy’s decision and hope that other judges will also see the problem with affirmative consent.

Posted by Tamara Rice Lave on September 3, 2015 at 11:33 AM | Permalink


If unlike those you proudly identify with you truly care about civil liberties for all including men -- as clearly seems to be the case -- then perhaps like John Rabe you don't grasp the inherent nature of those with whom you have chosen to proudly associate yourself. They are not like you. Enter "duke lacrosse castrate" into Google image search and see Feminism for yourself. Is that you standing with Manju Rajendran's lynch mob and the Group of 88 who cheered them on? You're better than that.

Nothing turns a Feminist into a Humanist faster than seeing her own son falsely accused, yet you as a former Public Defender can perhaps see the truth without having to be a victim of it. As you're a fan of the truth over "for the children" moral panic -- a McMartin preschool teacher would've done well to have you on his side -- perhaps in the light of their long string of horrible crimes committed "against the Patriarchy" (as opposed to "for the children"), a patriarchy which the Feminists' empowerment to commit those crimes proves cannot exist, you might now see that Feminism represents a similar injustice? (Except that since children really are helpless the McMartin panic is actually slightly more understandable than the witch hunts of Feminism on behalf of full grown adults.)

If you truly treat people as equal, if you truly don't have a thumb on the scales, name yourself Humanist and cast off the Stalinist police state tyranny of Feminism. You've already rejected their hate and bigotry; you hide who you really are when you tarnish yourself with their label.

Only 18% of the nation identify as Feminist. Feminists may have control of the institutions of higher learning and billions to spend advocating their Social Justice from places like the MacArthur Foundation (Group of 88 member Cathy Davidson presiding), but those of us who care about real justice have them outnumbered, and truth is on our side. If some among that 18% are like you receptive to an argument for justice, perhaps we're in even better shape than the numbers suggest.

Posted by: Piltdown Ghost | Sep 9, 2015 4:47:11 PM

Piltdown Ghost,

I was a public defender for ten years, and I represented many people charged with serious sex crimes including rape. In my last jury trial before embarking on a PhD program at UC Berkeley, I represented a man facing life in prison for child molestation. He was found not guilty and walked out of the court house a free man. I wrote my dissertation about sexually violent predator laws and have published several articles arguing that these laws are unconstitutional and irrational as a matter of public policy.

I am also a proud feminist.


Posted by: Tamara Lave | Sep 9, 2015 10:04:39 AM

It's well-known all right, not as a strawman but as all too true to anyone paying attention.

Affirmative Consent was explicitly targeted at the Paul Nungesser case, a case in which false accuser Emma Sulkowicz caused the punishment of an innocent man first by falsely accusing him via retroactive withdrawal of consent THEN by leading her fellow Feminists on a Social Justice crusade to normalize this gross injustice. Feminists did not as you seem to imagine repudiate retroactive consent withdrawal rape prosecution but in fact embraced it and continue to do so.

Paul Nungesser is the living example of the Feminist goal of post facto consent withdrawal prosecution; he is LITERALLY the poster boy for Affirmative Consent. The SPONSOR HERSELF of Affirmative Consent in the Senate has EXPLICITLY held up the Nungesser case as an example of why her legislation is needed -- and who would be found guilty under its new regime.

Consider yourself informed. The Senator's name is Kirsten Gillibrand. The issue is Affirmative Consent. The goal is to make all men in Paul Nungesser's situation retroactively guilty should the Feminist accuser so wish it.

I don't need to point to hypotheticals or "straw men" because the Nungesser case and Gillibrand's making an exmaple of him are real -- locking up innocent men like Paul Nungesser is the explicit goal of Feminists, to burn the next Paul Nungesser completely instead of the halfway-job they did this time around. Again, his case is literally the target of Affirmative Consent laws, not your specious man-on-the-street-grabs-a-woman hypothetical which has NEVER needed an Affirmative Consent law to be and have always been illegal.

To know who Feminists are and what they want you must read the Paul Nungesser case and imagine what kind of person thinks he is guilty of rape and that we need new laws to MAKE him guilty. THAT is what kind of people Feminists are; this is what they want.

We don't have to wonder about who will be innocent victims of the law of unintended consequences should Affirmative Consent be enacted. The intended consequence -- INTENDED -- is the persecution of innocent men like Paul Nungesser, as the SPONSOR'S own positioning of the legislation against him proves.

Posted by: Piltdown Ghost | Sep 9, 2015 6:23:14 AM

Poway: I appreciate your effort to introduce a competing Bayesian framework (really-- not sarcasm), but I think you're not including enough information in your calculation of prior probabilities. The relevant sample is not "all sex acts," but rather "all sex acts where there was no contemporaneous evidence of either consent or nonconsent by the complainant."

Narrowed down to that scenario, my intuition (though I have no evidence to back this up, nor do I know how to acquire it) is that it is no longer the case that the vast majority of sex was desired. I posit that many, if not most, of those cases involve either pretty serious intoxication or a complainant who has "frozen up" or is too terrified to verbalize nonconsent.

As for why I dismiss Piltdown as a troll, the idea that "feminists believe that women should be able to rescind consent after the fact" is a well-known antifeminist straw man. I am unaware of any person, much less any reputable legal commentator, who holds such a patently idiotic opinion.

Posted by: Paul Thomas | Sep 8, 2015 7:44:30 PM

"... if I instead just lie there, do nothing, and wait for it to be over, and then call 9-1-1 immediately afterward, that would-- in the absence of any other evidence of contemporaneous nonconsent communicated to the perpetrator-- fail to establish a rape."

Unless the assault consisted of the reading of bad poetry there will be corroborating evidence in abundance. The police will interview both you and the alleged attacker, perform a rape kit, etc, but I find I'm repeating myself as I've already covered this. You have some re-reading to do.

"As for the total nonsense you're spewing in your second paragraph, there is no legal standard-- now, proposed, or ever-- under which a complainant's after-the-fact recriminations would permit a rape prosecution ..."

Cornell's "John Doe", two months. Paul Nungesser, six months. Amherst's "John Doe", two years. These and many more are the real cases with real retroactive withdrawal of consent treated as ex post facto rape thanks to an Affirmative Consent standard (formal or informal). All those morning-after text messages proving their innocence? Inadmissible, or at best irrelevant. It's not Affirmative Consent, so it's not consent. The accused are guilty of retroactive rape.

Even if they had "Consent Contracts" someone as cunning as Emma Sulkowicz could simply claim the contract didn't cover the acts performed ... except this isn't a hypothetical. THAT'S EXACTLY WHAT SHE DID. Six months later and despite a slew of social media evidence of consent the Affirmative Consent standard has a sitting Senator no less, Kirsten Gillibrand, using false accusations against Paul Nungesser on the campaign trail to promote Affirmative Consent legislation that would formalize and open the door to more Sulkowicz-style Social Justice.

Columbia punished Paul Nungesser even after finding him "not responsible" by suspending their rules during graduation to endorse the view that he is a rapist. They also encouraged student groups who harassed him through both action and inaction. Had Affirmative Consent been enshrined in law there is no telling what they would've done to the innocent Paul Nungesser. That's what Kirsten Gillibrand and the campaign for Affirmative Consent is really about: more thoroughly burning the next Paul Nungesser.

Affirmative Consent is an ex post facto Trojan Horse precisely because a false accuser can simply claim an act took place not covered in the "contract" -- six months later. That's the reality of Affirmative Consent, just as real as Kirsten Gillibrand's job title of "Senator". Affirmative Consent is a Feminist tool of oppression which has nothing to do with promoting real investigations of real rapes -- real rapes are already investigated when the victim calls 9-1-1.

"... trolling ..."

"In a time of universal deceit, telling the truth is a revolutionary act."
-George Orwell, 1984

Posted by: Piltdown Ghost | Sep 8, 2015 6:07:03 PM

By the way, as a policy matter, I don’t necessarily even have a problem with affirmative consent because it is arguably the only feasible way of balancing all of the risks and interests involved given the peculiarities of the problem of sexual assault. But what I don’t really like is the tendency, seen in the context of discussing issues such as these, of dismissing points of view that don’t mesh with the often insular academic zeitgeist that defines the zone of reasonable disagreement.

Posted by: Poway or Bust | Sep 8, 2015 3:29:30 PM

Paul Thomas, what exactly warrants the charge that Piltdown is “trolling”? And how is what you’re doing here any more legitimate than what s/he is doing in this thread?

Speaking of “total nonsense that you’re spewing”—to use your language, the language a troll often uses, ironically—I will target the same example Piltdown does (does this make me a troll?):

“[T]he law rebuttably presumes that all people are sexually receptive at all times to all people. That assumption is, of course, demonstrably insane as a matter of empirical reality.”

The law does no such thing; the hypo you present in response to Piltdown demonstrates this. Now, the circumstantial detail of there being an “absence of evidence of contemporaneous nonconsent” does indeed trigger a presumption, but not a presumption that “all people are sexually receptive at all times to all people,” but rather that “a vast majority of time people have intercourse, it’s because both parties do so voluntarily with that particular person at that particular time.” This is demonstrably sane as a matter of empirical reality.

Posted by: Poway or Bust | Sep 8, 2015 3:19:21 PM

@Piltdown: I realize you're trolling, but a bit of feeding (only a bit; I'm not going to continue down this road indefinitely) is necessary to make the point here. Under extant negative-consent law, if I call 9-1-1 to complain about sexual assault while I am in the process of being raped, that would signal a lack of consent. But if I instead just lie there, do nothing, and wait for it to be over, and then call 9-1-1 immediately afterward, that would-- in the absence of any other evidence of contemporaneous nonconsent communicated to the perpetrator-- fail to establish a rape. The rapist can presume that I consent unless I do something to CARRY MY BURDEN to disabuse him of that presumption.

As for the total nonsense you're spewing in your second paragraph, there is no legal standard-- now, proposed, or ever-- under which a complainant's after-the-fact recriminations would permit a rape prosecution. After-the-fact evidence is relevant ONLY to the extent that it tends to corroborate or undercut the evidence about consent at the time of the sex act.

Posted by: Paul Thomas | Sep 8, 2015 8:38:18 AM

The fact that it is no longer politically correct to raise young gentleman and young ladies who are respectful of themselves and others, in private, as well as in public, is part of the problem; it is no longer politically correct to be virtuous.

Posted by: Nancy D. | Sep 8, 2015 7:44:36 AM

@Tamara Lave:
There's an awful lot of daylight between conviction on a word and having to prove that one "resisted to the upmost" (I presume you mean utmost?)

A word should not convict without any corroborating evidence. Such a standard is that of a Stalinist police state.

However, one need not prove one resisted to have evidence of a rape beyond a word. "Corroborating evidence" could mean for instance that the accused contradicted his own story, or that the alleged victim immediately called 9-1-1 after the incident and had a rape kit performed. Police would then interview her alleged assailant and gather even more evidence.

If you're suggesting that absent any corroborating evidence suspects should be found guilty as a matter of course what you're advocating is no better than Manju Rajendran's lynch mob.

@Paul Thomas:
"... the law rebuttably presumes that all people are sexually receptive at all times to all people."
No it doesn't. If a perp walks out into the street and grabs a complete stranger in a sexual way she can immediately have him arrested with a call to 9-1-1, assuming he doesn't flee the scene. Sexual assault is and has always been illegal.

Affirmative consent presumes that consent in a romantic context can be withdrawn retroactively if there is not some official instrument authorizing the activity in question. Text messages such as "Wow, we had some really great sex last night, didn't we?" become inadmissible or at least irrelevant. THAT is the reality of affirmative consent laws as currently applied by Universities in real cases.

No one shall make law ex post facto ... except for Feminists.

Posted by: Piltdown Ghost | Sep 8, 2015 5:59:50 AM

This is facile. You state it yourself-- the burden is on the state/university to show a sex act occurred between the complainant and the defendant (with all of the standard caveats for liability, e.g. it has to have been the result of a voluntary act by the defendant).

Once that burden is carried, that is sufficient-- it can be, and under an affirmative consent standard, is presumptively unlawful to touch someone. That presumption can, of course, be rebutted with evidence that the touch was consented to. (Compare to the current negative-consent standard, under which the complainant has to affirmatively prove that s/he objected-- i.e. the law rebuttably presumes that all people are sexually receptive at all times to all people. That assumption is, of course, demonstrably insane as a matter of empirical reality.)

What you object to is apparently the idea that the government's initial burden is "not high enough," for some reason or other. But that's not a due-process objection; it's just a policy judgment.

Posted by: Paul Thomas | Sep 8, 2015 1:37:04 AM

I think we can agree that the harm from being killed by a terrorist is very great. That it is the responsibility of the government to protect its people from that harm. That if it fails to exercise its powers to prevent terrorist attacks, that it could be said to be responsible for the harm that results. And also, that it is not exercising its power responsibly if it fires randomly into a crowd of innocent people in response to a mere allegation that there are terrorists in it. I see expelling accused persons in the absence of compelling evidence to be akin to this example.

I also apparently have a pathological need to have the last word. That's why I went to law school, I guess. Have a good Labor Day.

Posted by: Dave | Sep 7, 2015 10:37:28 PM

I strongly agree that procedural protections are woefully inadequate in university sexual assault disciplinary proceedings, but Piltdown Ghost is overstating the point. It is possible to find a person guilty beyond a reasonable doubt based on the complaining witness’s testimony that she was raped. That IS evidence. The state doesn’t need anything else to prove its case. Although there was a time when winning a a conviction required a witness to the attack or physical proof that the victim had resisted to the upmost, happily, that is no longer the case.

Posted by: Tamara Lave | Sep 7, 2015 8:55:29 PM

Anonymous fails to the see harm of treating an innocent man as if he were guilty for the sake of a false accuser's comfort.

An accusation isn't a conviction until the evidence is weighed and a fair trial has commenced; likewise the accused should not have sentence passed until he has been found guilty. On the other hand, if a crime obviously took place the prime suspect can't very well be allowed to roam about. How do we split the difference?

In the world of real justice there is this idea called "probable cause" which balances the presumption of innocence with protection from one who seems guilty -- "seems" having specific legal definitions and boundaries.

With probable cause not only will the alleged rape victim not have to share space with her alleged attacker, he will be physically locked in a cage, as with probable cause the authorities will make an arrest and hold the suspect until his trial.

Social Justice, of course, perverts "probable cause" as it does all other concepts of justice, in this case by using such a low standard for "probable cause" that there is no standard at all save that one is accused. The Valenti Rule of Feminist Jurisprudence:

"I trust women."
-Jessica Valenti, Feminist

Given this standard for probable cause it allows false accusers to harass their targets with no evidence, no trial, and no chance for the innocent victim to defend himself. The Valenti Standard for Probable Cause is set so low and the consequences of being presumed a rapist on campus so great that any woman can for any reason ruin a man's life purely on a word with no evidence he has done anything wrong.

We are indeed not in agreement that this kind of power should be held by anyone.

Posted by: Piltdown Ghost | Sep 7, 2015 8:19:43 PM

I think we can agree that the harm from being killed by a terrorist is very great. That it is the responsibility of the government to protect its people from that harm. That if it fails to exercise its powers to prevent terrorist attacks, that it could be said to be responsible for the harm that results. And also, that it is not exercising its power responsibly if it fires randomly into a crowd of innocent people in response to a mere allegation that there are terrorists in it. I see expelling accused persons in the absence of evidence to be akin to this example.

I also apparently have a pathological need to have the last word. That's why I went to law school, I guess. Have a good Labor Day.

Posted by: Dave | Sep 7, 2015 5:06:03 PM

We are in agreement that rape is a great and undeserved harm and that no one should be punished without evidence. We might or might not agree as to what constitutes evidence or what that evidence needs to show.

We are not in agreement as to whether having to take your exams next to someone who raped you, attend your classes with someone who raped you, live down the hall from someone who raped you, and eat your meals in the same dining hall as someone who raped you is a harm that can be characterized as "marginal" in any way.

We are not in agreement as to the degree of responsibility a university bears for protecting its students from that second type of ongoing harm by taking action in response to a sexual assault complaint.

I'll leave it there and just agree to disagree.

Posted by: Anonymous | Sep 7, 2015 3:30:47 PM

Anonymous: The great and undeserved harm was caused by the rape. Any harm caused by the victim having to remain on the same campus with her rapist is, by comparison, marginal -- and my point is, it is not caused by the school, but by the rapist. If the evidence is there to punish the rapist, then by all means do so. If it is not, the school should not act, because it risks causing greater harm -- far greater harm -- than it would be ameliorating.

Posted by: Dave | Sep 7, 2015 12:17:36 PM

Dave, doing nothing risks causing great and undeserved harm to a student who has been raped. That's my point. This isn't a situation where inaction is neutral.

As for due process, I'm all for it, of course; I just see nothing to suggest that affirmative consent policies actually reverse the burden of proof (as Hash has explained above) or otherwise cause due process violations. What they might do is change universities' view of what constitutes "compelling" evidence; not every sexual assault is going to leave evidence in the form of a severely bruised and beaten victim, and it's a good thing for university officials to recognize that.

Posted by: Anonymous | Sep 6, 2015 8:54:21 PM

"... authorities, including on college campuses, have shown a longstanding pattern of disbelieving them and/or taking no action."

This is a myth. For at least the last decade the pattern has been to believe first, punish second, and ignore any evidence a mistake might have been made third (because admitting the accused is innocent might have a hypothetical "chilling effect", thus subordinating the humanity of real male victims to a Feminist hypothetical).

Reminder: the Duke Lacrosse Three were INNOCENT based on Reade Seligmann's ATM receipts yet Feminists found them GUILTY based on a word. As Duke Lacrosse was the rule not the exception -- the members of the Group of 88 weren't some amazing confluence of coincidental credulity, they represented the unanimous verdict of the Duke Humanities department, the Administration, and virtually all of Feminism and Social Justice -- the longstanding pattern is clearly for the word of a Feminist to be treated as absolute proof. I give you the Valenti Rule:

"I trust women."
-Jessica Valenti, Feminist

Note the complete lack of regard in Feminist jurisprudence for any consideration of EVIDENCE. As with the word of a Party member under Stalinism the word of a Feminist is the only arbiter of truth. How many times did the Social Disaster statement of the Group of 88 refer to Reade Seligmann's ATM receipts? It used the race and sex of both accuser and accused quite copiously in deciding whose words were true, but how many mentions of Reade Seligmann's ATM receipts? If you know anything about Social Justice we both know the answer is ZERO. Crystal Mangum's word is all Feminists needed to find the Duke Lacrosse Three guilty.

The environment of unreflective credulity that gave rise to Duke Lacrosse must necessarily have preceded it. A perfect storm can't happen in a vacuum. It took Duke Lacrosse to get our attention, but the unanimous verdict of the Humanities department, the University Administration, and most of the mainstream media couldn't possibly have been because of some one-in-a-billion statistical improbability, all the rare believer-exceptions to your putative disbelieving rule just happening to be the ones on the air and in charge. The Group of 88 endorsed the castration without trial of the Duke Lacrosse Three based on a longstanding pattern in Feminist-controlled spaces of convicting on a word regardless of evidence, and by joining in the witch hunt the Duke Administration, mainstream media, and indeed virtually all of Feminism confirmed this pattern.

You also claimed that action is not taken which is also a lie. Action is often taken before the show-trial ever starts -- presuming the defendants are graced with the luxury of a show-trial at all. Oftentimes punishment is meted out and the case closed before the case even opens, and Feminists actually prefer this "punishment first" posture:

Manju Rajendran, Leader, Potbanger lynch mob

"Thank you for not waiting."
The Group of 88, in response

The Duke Lacrosse Three, like the Phi Kappa Psi fraternity, were punished reflexively and in spite of direct evidence of their innocence. Thankfully the Potbangers didn't manage to carry out their proposed castration, but the administration was more successful in meting out punishment, including collective punishment against the entire Lacrosse program. In the course of dispensing summary Social Justice on the Duke Lacrosse Three the Administration, in the pattern repeated by all Feminists, made no mention of Reade Seligmann's ATM receipts. The "longstanding pattern" is to act first, worry about evidence later -- if at all.

Finally there's one more myth to bust: the naive belief that university kangaroo courts can handle these cases fairly as if Feminists aren't the ones running the show. How can the falsely accused possibly defend themselves from a judge, jury, and executioner whose "evidence" comes from an entertainment tabloid? Can you really get a fair trial from the Group of 88, from the sort of "judge" who would proclaim, "I come into intellectual spaces like a thug?" Whatever the evidence, on the word of a Feminist you're going to burn. An inquisition run by Women's Studies graduates isn't a jury of your peers. The only cure for the tyranny of Feminist Social Justice is the due process of real justice.

Posted by: Piltdown Ghost | Sep 6, 2015 8:46:13 PM

If a school is going to cause great harm to an accused rapist in order to ameliorate, in a small way, the harm allegedly suffered by a rape victim, the school had better be sure that it is doing the right thing. To do otherwise is the equivalent of firing blindly into a crowd because you think someone is a bad guy with a gun. Due process is a way of making sure you have a reasonable basis for what you are doing. Perhaps the schools didn't act in many of these cases because the evidence was not compelling. In an ambiguous case, it is better to do nothing rather than risk causing great and undeserved harm. Affirmative consent and the DCL are not reasonable responses to the problem.

Posted by: Dave | Sep 6, 2015 8:32:13 PM

I'm deeply troubled that no one in this discussion has mentioned these things:
- Rape occurs, including on college campuses, and women often do not report their rapes.
- One of the reasons that women often do not report their rapes is that authorities, including on college campuses, have shown a longstanding pattern of disbelieving them and/or taking no action.
- If a college student is raped by another student, it is disruptive to her education to have to continue to attend classes, live in the same dorm, eat in the same cafeterias, etc. alongside the person who raped her.
- Administrative proceedings on college campuses, including in situations involving an allegation of sexual assault, inquire whether the accused has violated the university's code of conduct and what action if any is needed to enforce that code of conduct and protect the university's other students.

Yes, an undeserved expulsion is a terrible thing; but a refusal to take action in response to a sexual assault complaint also has costs that a university has an obligation to take into account. Affirmative consent policies and OCR's actions represent, in part, a response to many universities' longstanding failure to recognize the costs on both sides of this equation.

Posted by: Anonymous | Sep 6, 2015 4:37:58 PM

OCR needs to learn that it is part of the executive branch, not the judicial branch.

Posted by: Michael Ejercito | Sep 6, 2015 1:53:44 PM

Did this get linked on instapundit or something?

Posted by: brad | Sep 6, 2015 12:43:13 PM

When I first came to the university and read the 2011 Dear Colleague Letter, I advised my client that what the OCR was asking them to do in what we were now calling "Title IX cases" would never stand up in court. Lawyers would find these procedures suspect and no judge, I thought, would feel that they were adequate due process for the liberty and property deprivations inherent in labeling a young man a rapist and expelling him from school. My hope was that some other school would be on the receiving end of the court ruling, and that it would happen before the OCR put us in its sights.

Then came the affirmative consent standard, which turns virtually every sex act ever committed in human history into a presumed rape. Although not the law in my state, student affairs and the Title IX coordinator are gung-ho to adopt it as the campus standard. I work every day to convince them that to do so will guarantee them a lawsuit by an accused student, and one that we would lose. No lawyer or judge could possibly think that a hearing based on the affirmative consent standard provided due process. However, some of the comments on this blog leave me very concerned for our profession.

It is not simply a matter of the burden of proof. The preponderance of the evidence standard by itself tends to shift the burden onto the accused as a practical matter, if not in a strict technical sense. Throw in affirmative consent and the young man -- and the accused will always be a man -- is facing an impossible situation. People in the throes of passion do not behave and never will behave as demanded by affirmative consent laws. So how do you prove consent when any expression of consent can be negated at the hearing simply by the "victim" testifying, "I didn't consent to that particular act?" Especially if the accused is also facing a criminal investigation and has been advised not to say anything by a lawyer who is, incidentally, probably prohibited by the rules of the tribunal from speaking in his client's behalf.

I put "victim" in scare quotes, and I can hear a chorus swelling in the background, singing "women don't lie about rape!" First, let me say that in the real world, yes they do. People lie about everything. Someone trying to avoid getting in trouble will make up lies about total strangers. A guy ticked off over a girl who rejected him will tell his buddies, "I did her. She's easy." And a woman who feels betrayed by a love interest will make up all manner of lies about horrible things he did to her. Happens all the time.

Second, it doesn't have to be a lie. Under affirmative consent, a "victim" can tell the absolute truth about a consensual experience and still get the accused expelled and labelled a rapist. All she has to do is testify, "I didn't say yes to that act." Given how California schools are interpreting affirmative consent, it is irrelevant whether she actually objected to the act, expressed or unexpressed. She can engage whole-heartedly in the activities and claim "rape" later simply because her consent was not verbally stated. Even if she admits that she had no objection to the act, it would still be a violation of Yes Means Yes standard.

The real problem here is not procedural, it is that rape has been redefined. Traditionally in criminal law, proof of rape focuses on the intent of the accused. It was not enough that the act was not consented to. The accused had to have reason to know it was not consented to, and had to act with the necessary intent. In law school, a professor dragged out a Talmudic example of a man on a ladder -- with an erection, for some reason -- who falls off accidentally on to a passing woman, and in the collision, penetration occurs. Was she violated? Absolutely. But was he morally culpable? No. Similarly, where the accused reasonably believed the victim consented to the act, he could not be convicted of rape. This focus on the intent and actions of the accused is suitable for the purposes of the criminal justice system, and should also be suitable for a student conduct system. Both are trying to decide if a person did something wrong and should be punished.

But it means that some acts that may feel like rape to the victim don't get prosecuted or convicted. A woman may appear reasonably sober at the time, but wake up in the morning with no memory of what happened. Or she may be so frightened that she is unable to object. Or she may be unwilling to object because she doesn't want this guy to not like her any more. And when he dumps her anyway .... The psychologists tell us that regretted sex can be just as traumatic to a woman as non-consensual sex, and therefore it is the same as rape in its effects.

Title IX as interpreted by the OCR places the focus on those effects. Title IX is about protecting a woman's educational experience from sex-based discrimination. The OCR has decided this includes disruption by, in this case, the presence of a person who disturbs her on some grounds related to sex. Therefore, a student conduct system that focuses on the intent of the accused rather than the effect on the victim may be failing to protect a victim's Title IX rights. There was a case recently in which a male student was placed under no-contact orders and removed from classes because he physically resembled the guy who raped a female student 10 years earlier. It was understood by all that he was not and could not have been the guy who did it, but his presence disturbed her, and it was therefore treated as a Title IX issue. And he was punished. Stupid, yes, but this is the inevitable result of changing the objective of the student conduct system from punishing bad behavior to protecting fragile feelings. Affirmative consent laws redefine rape to align it with this goal.

The courts that have looked at it so far have not gone along. Nor should they. But I am very concerned to find that the opinions expressed by some in these comments represent the thinking of a significant portion of our profession.

Posted by: Dave | Sep 6, 2015 10:10:21 AM

"... making a person prove that her partner consented ..."

HER? You're actually going to pretend that the targets of the Feminist assault on due process aren't almost entirely men? Can you even name one innocent woman falsely accused and persecuted in the manner of Phi Kappa Psi, Paul Nungesser, or the Duke Lacrosse Three?

At least you claim to be against the presumption of guilt without an impossible to obtain "consent contract" to prove innocence (which it can never do: all the empowered Feminist need do is make up a new accusation not covered in the contract and demand to see papers). You rightly defend the burden of proof standard as a protection against the police state power to convict on a word.

Yet you just can't bring yourself to label the falsely accused men victims -- so you pretend the victims are women. Real justice demands a search for the truth whatever it may be. The victims of false accusations, Social Justice kangaroo courts, and the empowered Feminists who run them are overwhelmingly men -- perhaps even entirely men. If you care about the truth, care about the whole truth and tell it.

"Honestly, I'm not even sure why we need an adversary process at all."

That's because you have not yet been falsely accused. Nothing turns a Feminist into a Humanist faster than a false accusation.

Anyone who falsely accuses you is not only your adversary but a truly evil person, the kind who should be locked up but whose Feminist empowerment guarantees the only victim will be you. In the bitterest irony of all, the very word "victim" will be reserved for the perpetrator. The only way she is not your "adversary" is if she is instead your oppressor in a process so one-sided sentence is passed without even a show-trial.

The reason an adversarial process is necessary should be obvious from the non-adversarial process we have now: Social Justice has a thumb on the scales. Phi Kappa Psi is STILL SERVING SENTENCE for a crime that didn't even happen so deep is the rot. If you are falsely accused in a university environment it will be peers of the Group of 88 who will sit on your "jury". Bound, gagged, and tied to the tracks you are no adversary at all to the oncoming train.

A FAIR adversarial process is the only alternative to a one-sided railroading. Feminists have turned college campuses into a Stalinist police state where accusations are treated as proof of guilt. With Groups of 88 running the star chambers the only way to receive a fair trial is outside the patently unfair environment of the university.

Posted by: Piltdown Ghost | Sep 5, 2015 5:03:03 PM

The problem with exercising power over others is that when eventually the Wheel of Karma turns your enemies wind up wielding power over you. The fox is now chasing the hound on college campuses. And that’s the way things go.

Everybody winds up on the receiving end sometimes and therefore it behooves him to respect the framework which shelters others because one day he may need it also. Part of the reason the Constitution exists is to protect Paul Gowder from people like himself. Robert Bolt put it eloquently in his screenplay for the Man for All Seasons.

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

It’s easy to think you won’t need the Constitution when you’re up. But wait till you’re down.

Posted by: Walter Sobchak | Sep 5, 2015 1:59:21 PM

I don't know what "mere accusation" is supposed to mean. If the complaining witness claims the elements of the offense took place that's evidence. If it's not subject to cross examination, that's something you can rightly point out is problematic. If it is in writing rather than being delivered before the triers of fact where they can judge the witness' credibility, that's something you can rightly point out is problematic. Maybe you can claim that the triers of fact are giving too much automatic credence to complaining witnesses. But what you can't do is claim that no evidence is being offered and so therefore the burden is shifted to the defense.

In the case discussed in the main post above, the complaining witness testified extensively.

Of course it is possible that an untrained college administrator somewhere will screw up so badly that the complaining witness doesn't have to offer anything at all to the trier of fact. But if they do so that's because they misunderstood the rules, not because moving to a preponderance standard is the same thing as shifting the burden of proof, or because they use an affirmative consent standard instead of an implied consent standard, or because they use poor evidentiary procedures, or because they don't allow the accused to have a legal representative. These are all orthogonal issues.

The only reason I can think of for this sloppy conflation of very different things is that "guilty until proven innocent" makes a pithy slogan to go on the slick "fairness" websites linked to commentators names above.

Posted by: brad | Sep 4, 2015 8:51:14 PM


The problem is that a mere accusation may suffice as that scintilla of evidence. If that's the case, then the defense starts with the burden.

To tell who has the burden you need only ask who loses if neither side presents any evidence.

Posted by: Derek Tokaz | Sep 4, 2015 5:59:20 PM

No it wouldn't. It would just mean that the accuser has an easier job, and apparently in this hypo is quite convincing.

Even the scintilla of evidence standard still puts a burden on the party that has to meet it.

Posted by: Brad | Sep 4, 2015 3:47:21 PM


I think you misunderstood my point. The preponderance standard doesn't, as a rule, put the burden on the accused. But in practice it can have that effect.

A bare accusation may, for some people hearing a case, be enough to to tip the scales. That is to say, if we began and ended with the accusation (no additional information from either side), a panel could find the accused responsible.

That effectively shifts the burden to the accused. Merely denying the accusation might not be enough to put the scales back to even.

Thus the preponderance standard would be responsible for shifting the burden.

Posted by: Derek Tokaz | Sep 4, 2015 3:15:13 PM

A better question is why the OCR thinks it has the power to interpret law. Last timke I checked, that is a power reserved to the courts.

Posted by: Michael Ejercito | Sep 4, 2015 3:01:29 PM

Derek Tokaz:
"It's probably helpful to keep in mind that these hearings also use a preponderance standard. That's largely what's responsible for shifting the burden."

Preponderance is a standard of persuasion, it isn't a indicator of who has the burden.

I'm frankly a little shocked that so many law professors (or at least readers of law professor blogs) are rampantly conflating disparate criminal law concepts. It's the kind of thing I expect in an undergraduate edited newspaper.

Posted by: Brad | Sep 4, 2015 2:42:31 PM


I agree that is the case in criminal proceedings, and it may be the intent of these regulations and policies in campus proceedings as well.

But you still need to consider the burden of proof an important factor in comparing the criminal process to the campus process, because in the former the defendant need only raise a "reasonable doubt" to support his defense. However, in a campus proceeding, because the standard has been reduced to preponderance, the accused must in reality raise closer to a 50% likelihood that his position should prevail. In other words, instead of 95% to 5%, the balance is now closer to 50-50.

When you add in the message campuses are being given that false allegations are "exceedingly rare" and a victim must be believed, it is easy to see why the scale is tipped in favor of guilt, whatever the technical underlying procedural reasons for that shift may be.

Posted by: Cynthia Garrett | Sep 4, 2015 2:26:42 PM

It would be really interesting if one of a certain law professor's BDSM sex partners retroactively applied his thoughts on affirmative consent to him in an inquisitorial process.

Posted by: A. | Sep 4, 2015 2:09:21 PM

Tamara, I'm of course not advocating any such rule of affirmative consent. I was just pointing out that the possibility of such rules helps demonstrate why the issue here has nothing to do with the "burden of proof" -- which remains entirely on the prosecutor in all circumstances, no matter what the particular consent standard is -- and everything to do with whether the standard for consent is *substantively* too high or low.

Let me try this one last time from the opposite direction: let's take a traditional non-consent statute; if the victim then testifies that she affirmatively said no, or that her body language made clear that she didn't want to have sex, then the deft is likely going to have to testify if he has any chance of prevailing, unless her testimony is defective on its face. In short, whenever the disputed element is consent, and the victim is willing to forcefully and credibly testify that consent was lacking, the deft likely has to testify to the contrary to prevail -- regardless of what the particular consent level is. Sure, there may be some exceptions -- e.g., where the victim's testimony about lack of consent is facially problematic; but there will also be exceptions even under an affirmative-consent statute -- e.g., where the victim's testimony about the lack of affirmative consent is facially problematic. Again, the differences here are really about, as a substantive matter, how much consent is necessary *even where the facts are undisputed*, *not* who effectively has the burden of proof over disputed facts.

Posted by: Hash | Sep 4, 2015 1:18:47 PM

It's probably helpful to keep in mind that these hearings also use a preponderance standard. That's largely what's responsible for shifting the burden.

Posted by: Derek Tokaz | Sep 4, 2015 10:48:01 AM

Hash, "Express written or oral consent!" How often do people have a written contract next to their beds for their paramours to sign? Or are you saying that at every step along the way, someone should say, "I now expressly consent to you touching my ..., licking my..., penetrating my..." That's not the way that a lot of consensual sex happens, and universities recognize this. So they define affirmative consent in squishy ways, saying that it can be met through words or actions. That means that the focus remains on what the CW did, which is one thing affirmative consent advocates wanted to avoid. And it also means that a CW doesn't need to say much at all before the Accused is effectively forced to testify or put on evidence.

Posted by: Tamara Lave | Sep 4, 2015 10:05:59 AM

Thank you, Tamara, for a valuable and thoughtful piece. It's great to see law professors stepping into the void here. Why aren't more law professors disturbed by the rush to judgment and hang-'em-high procedures in use pretty much everwhere and apparently mandated by OCR? The notion that we should turn to an inquisitorial process that has no procedural protections for the accused, under which any accusation equals proof of a heinous act, with ruinous consequences for the rest of the accused's life, is mind-boggling to me. How have we come to this pass?

Posted by: Douglas Levene | Sep 4, 2015 9:59:18 AM


Yes, I can.

First of all there are bills proposed in several states to make reporting to transfer schools mandatory and also to permanently mark the student's transcript. Also, FERPA allows schools to inform other schools of a sexual assault finding, and in the current climate, most schools ask. In fact the Common App report sent to the former school asks about the student's standing.

Second, I know several young men who have had difficulty finding a job if their name was publicized or the job required a college transcript. I also know of young men who tried to transfer to another institution, were accepted, and then the offer of admission was withdrawn when someone anonymously called the new school. At least one student was told this the day he showed up for classes. There also have been men who lost their job (one who worked on Capitol Hill comes to mind) when someone anonymously informed their employer. Many of these men have not been able to get into another college, which obviously affects their futures.

As to shifting the burden of proof, because the standard of proof is required by the Dept. Of Ed. to be "more likely than not," and schools are being told they must "believe the victim," if an accused presents no evidence the school will more likely than not choose to believe the accuser. While this may not technically shift the Burden, it does so effectively.

Posted by: Cynthia Garrett | Sep 3, 2015 7:40:34 PM

Is there any reliable information about the actual reputational damage inflicted on accused by this process?

In terms of official reputational damage, can someone point to actual policy or other evidence with respect to schools reporting and sharing outcomes? Between FMLA and the like,

In terms of job applications and such, can anyone point to actual data about the extent to which campus discipline of any kind becomes an issue? (I imagine it varies widely depending on field... bar c&f investigations, which we all know, are probably on one extreme...)

In terms of informal social sanctions, can anyone point to any actual data about the marginal effect of campus process and verdicts on the accused (i.e., over those sanctions that would be inflicted by the mere fact of the accusation, social networks among students, etc.)?

I'm not ruling out the notion that these reputational effects are a good reason to have more process, but it would be really nice to have actual evidence on the question.

Posted by: Paul Gowder | Sep 3, 2015 7:23:27 PM

Affirmative Consent may be a good idea in one's personal life. And college programs *promoting* getting enthusiastic consent -- as opposed to requiring it in their policies -- are probably very good ideas.

Requiring Affirmative Consent is a whole 'nuther ball of wax. Because even assuming it's done *without* making the defendant prove his (or her) innocence, all it changes is what the defendant (whether guilty or innocent) has to say. A rapist trying to duck punishment just has to switch a few words in his (or her) lie, from "She didn't say no!" to "She yelled 'Take me now!' and pulled down my pants."

Yes, colleges aren't courts of law. But this isn't an incremental issue like whether the standard of proof is beyond a reasonable doubt or clear and convincing evidence. (The Department of Education has twisted colleges' arms to make it preponderance of the evidence, but I really wouldn't feel comfortable branding someone a rapist based on a 50.01% likelihood.)

Expulsion is a terrible blow to the innocent -- especially insofar as they'll have a very hard time continuing their education anywhere else. On the other hand, it's a laughable slap on the wrist to rapists.

Last but not least, I'm far from sure that colleges should be adjudicating cases like this in the first place, as opposed to doing things like separating complainant and defendant and supporting complainants (if not both sides). Other than that, we might prefer that colleges stick to deciding cases they're actually particularly good at -- like cheating.

Also check out:


Full disclosure: I'm a Virginia state rep for SAVE (Stop Abusive and Violent Environments).

Posted by: Jeffrey Deutsch | Sep 3, 2015 5:27:14 PM

Tamara -- as you recognize, "the university must prove that the complainant did not affirmatively consent," and I expect "that proof [will] look like" this: the victim will expressly testify that she did not affirmatively consent -- i.e., that she never said yes. How is that even arguably "shifting the burden of proof"?

To make my point even clearer, let's say that a university defined "affirmative consent" as "express written or oral consent using the following phrase ...." The prosecutor would then have the victim testify that the phrase wasn't used, and that doesn't even remotely constitute a "shifting of the burden of proof"; the university will just have imposed a ridiculous substantive condition precedent on having sex. But that's a purely substantive debate -- the burden of proof has nothing to do with it.

Posted by: Hash | Sep 3, 2015 3:47:52 PM

In my experience, a man defending himself against a charge of molesting a kid is regularly deprived of the right to cross-examine the "survivor" in Amerika.

The real problem in this country is the perverse and prevalent attitude that sex is negative and hurtful. This in spite of the fact that I, and my young male friends, never considered being seduced by a 30-yr-old teacher to be anything but positive.

In Amerika, you can plan a hiking trip with a mature woman, stop by with her at Walmart to buy rubbers and a box of Snickers bars and then, after offering her a couple of Snickers bars while on the hike and later having sex with her, she can later prosecute you for sex (but not for the Snickers bars), claiming lack of explicit consent at every step along the way.

Why can't she prosecute you for the Snickers bars?

Not because Snickers bars, while generally considered a delight, are also sometimes harmful. Not because she didn't consent to their purchase or receive them gladly at the time. No, the reason is that we puritan Amerikans are still hung up on sex. It is always a negative. Its costs are presumed to outweigh its benefits.

That's a good reason to make Pell Grants and gummint-financed borrowing available overseas: An Amerikan lad, convicted of "rape" in an Amerikan academic kangaroo court could then wave goodbye and get his education in Germany or Sweden or a myriad of countries not so silly about sex.

Posted by: Jimbino | Sep 3, 2015 3:14:46 PM

Thanks for the very thoughtful comments. A few responses...

First, I am not contending that students should be afforded the same procedural protections as criminal defendants, but I do believe that they are entitled to process. And I believe that they should be getting more than most universities are currently affording.

Second, Paul I think you're overstating what's happening out there when you talk about individuals "prey(ing) on closed communities." Sure, there are some predators, but if you read the cases out there, a lot of them are legitimately confusing. By that I mean, both parties agree that the initial contact was consensual, and there are legitimate reasons why the accused would have believed the sex was consensual, like in one case where the CW texted the accused to make sure he had a condom before she returned to his room.

Third, like Cynthia, I am extremely troubled by the way that disciplinary proceedings are being conducted. Students do not have the right to cross examine at almost all universities, and DOE OCR specifically advises universities in the Dear Colleague letter not to allow direct questioning. Many universities allow students to submit questions indirectly, but the hearing board (if there is one) need not ask the question, and even if they do, the complainant need not respond or even be present.

Finally, I think that Hash makes a good point, but I suspect this is an example of the difference between law in the books and law in action. Sure, the university must prove that the complainant did not affirmatively consent, but what does that proof look like? Maybe Corey Yung gets it right on CO when he writes that the real problem is that universities are imposing strict liability in sex cases.

Posted by: Tamara Lave | Sep 3, 2015 2:19:17 PM

"I could literally say nothing, and still, if the D.A. didn’t prove the case beyond a reasonable doubt, they would have to acquit."

As noted, this is not a criminal case. The burden of proof is not as high. And, in non-criminal cases, saying nothing at times is not allowed even putting aside immunity grants. Consider OJ in respect to the murder cases -- in his civil case he had to testify. http://www.cnn.com/US/9609/16/simpson.case/

The interests are grave as noted by comments -- ability to go to the college itself is quite important even if that is the only thing being denied (and it appears to go beyond that). Also a mark of Cain as a rapist is not a trivial matter. Overall, I firmly think there has to be some adversary process with basic protections of the accused.

Anyway, "affirmative consent" is not just about a lower standard of proof or procedure anyway. See, e.g., here:


I'm confused by the implication in the OP that there is in effect a switch where the ACCUSED has to prove their innocence. I thought the point here was a concern to only allow sex, e.g., if there was clear consent -- which gets some pushback, but seems at least a good policy in one's private life. The need to "come forward with proof of an affirmative verbal response" is more than this. It in effect makes you guilty until proven innocent. I'm not for that sort of thing.

Posted by: Joe | Sep 3, 2015 2:11:43 PM

I'm not persuaded that pointing to a variety of admittedly flawed procedures and overly harsh collateral consequences ought to lead one to conclude that the substantive elements of the offense ought to include "reasonably thought the other did not object" versus "reasonably thought the other party affirmatively consented".

If you think the burden of disproving consent ought to be on the school administration, argue for that. If you think cross examination ought to be allowed, argue for that. If you think the record should be sealed, argue for that. But none of these things go to the question of what should count as consent.

Posted by: Brad | Sep 3, 2015 2:07:25 PM

Corey Yung (CoOp) has a different riff on the question: http://concurringopinions.com/archives/2015/09/affirmative-consent-and-burden-switching.html#more-101373

Posted by: Howard Wasserman | Sep 3, 2015 2:05:52 PM

"Awesome point. So there's something else we can consider. In the process we're inventing, do we want to build some mechanism in for sealing the results of close cases? There's a balance to be struck there between making knowledge available to other schools, in particular, that need it, vs protecting that legitimate interest. But there are lots of creative ways we might strike that balance."

As was just noted by Cynthia Garrett, other schools, state bars, government agencies, employers, and lots of other entities must or can ask if a particular applicant has been subject to discipline even where the results have been expunged or sealed. The schools that hold these tribunals can't have it both ways: they can't formally adjudge someone liable for something as serious as sexual assault and then insist that the rest of the world not know of that or know of it but treat it as it were the offense of parking for three hours in a two hour zone.

Posted by: anoin | Sep 3, 2015 2:04:17 PM

"the deprivation threatened is merely an interest in attendance in that particular school (is that even a Goldberg-style property interest?"

The deprivation is, effectively, attendance at any college or university, because under current Department of Education mandates and FERPA, disciplinary decisions can be (and are frequently) communicated to institutions to which the student transfers. Many students have been unable to transfer into another institution as a result. This of course would be a just result if he/she were truly guilty., but a combination of factors, including Department of Education pressure on schools to report more sexual assaults to prove their responsiveness to claims, expansive definitions of sexual misconduct (i.e., "unwanted touching, however slight), the lower burden of proof and now requiring the accused to provide proof of consent, all factor in to an increased likelihood of false findings.

"accusations are investigated by neutral trained professional staff"

But unfortunately staff is neither adequately trained to decide he said/she said cases, which are the most difficult for trained attorneys, judges and investigators. Neither are these professionals unbiased in many cases - they want to find students responsible so their employer does not risk the loss of funding for noncompliance, or being added to the infamous list of noncompliant campuses because the accuser wasn't happy with the result.

"the defense can try to impeach that victim through cross-examination"

There is much more to this issue than I can provide here, but cross-examination is expressly prohibited in campus sexual assault disciplinary proceedings.

Posted by: Cynthia Garrett | Sep 3, 2015 1:48:29 PM

And the point, the whole actual point, is to remove the "she didn't say no/actually fight back" defense.

Posted by: Paul Gowder | Sep 3, 2015 1:33:43 PM

I think Hash hits an important point. Affirmative consent, properly understood, ought to be a tweak to state of mind as an element of the offense, not burden of proof: a shift from "not guilty unless the alleged victim give the alleged perpetrator good reason to think the sex was unwelcome" to "guilty (assuming other elements) unless the alleged victim gave the alleged perpetrator good reason to think the sex was actually welcome." The burden can still be on accuser for this.

Posted by: Paul Gowder | Sep 3, 2015 1:32:33 PM

I don't think this is correct (or, at least, it need not be correct under a properly constructed "affirmative consent" law).

One can *substantively* prohibit sex whenever affirmative consent is absent, and still *procedurally* require prosecutors to carry the burden of proving the absence of affirmative consent.

In other words, if the *only* evidence introduced is that a sex act has occurred, then the prosecution hasn't carried its burden even under an affirmative-consent statute, because it hasn't proved the absence of affirmative consent. The prosecution must *additionally* provide evidence of the absence of affirmative consent (e.g., testimony from the victim that she didn't consent), and the defense can try to impeach that victim through cross-examination without introducing any affirmative evidence (just as it can under normal "non-consent" statutes).

Simply put, the fight over "affirmative consent" statutes isn't an evidentiary one about the govt's burden of proof. Rather, it's a substantive one about whether sex should be lawful where it's factually undisputed that the victim didn't say no but also didn't say yes.

Posted by: Hash | Sep 3, 2015 1:07:24 PM

The affirmative consent standard is often used as an attempt to go even a step forward. Not only put the burden on the accused, but actually assume guilt from the start. For instance, see this article in defense of the standard from ThinkProgress:

"The people who are worried about affirmative consent standards are typically preoccupied about the people who may be penalized for failing to ask questions every step of the way. What if a college student starts passionately kissing his girlfriend without getting her permission first? What if a couple enjoys explicitly consensual foreplay and then moves on to intercourse without a verbal agreement beforehand?

"But those hypothetical situations aren’t necessarily breaches of an affirmative consent standard. If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later. So if college students are worried about protecting themselves from being penalized, it’s not hard — all they have to do is stick to engaging in physical contact with people who are clearly receptive to it at the time."

The same argument was also made on KRCW's Which Way, LA a few days ago.

You have nothing to worry about because if you got consent you will never be accused. Why even bother having a hearing then?

Also note that it's moving the goal posts. You not only need affirmative consent, you need enthusiastic affirmative consent. (Or maybe you just need enthusiasm without the affirmative consent, because you won't be accused.)

Posted by: Derek Tokaz | Sep 3, 2015 12:59:56 PM

Awesome point. So there's something else we can consider. In the process we're inventing, do we want to build some mechanism in for sealing the results of close cases? There's a balance to be struck there between making knowledge available to other schools, in particular, that need it, vs protecting that legitimate interest. But there are lots of creative ways we might strike that balance.

Posted by: Paul Gowder | Sep 3, 2015 12:58:17 PM

"the deprivation threatened is merely an interest in attendance in that particular school"

It is that, but is it "merely" that? What about the interest in not being officially labeled as someone who committed sexual assault, a label that will follow you forever?

To get at it another way, suppose you were counseling the accused student and he mentioned that he had intended to transfer to another school anyway. Would any competent counselor advise the student that in that case there is no conceivable downside to not contesting the allegation?

Posted by: anoin | Sep 3, 2015 12:51:08 PM

Honestly, I'm not even sure why we need an adversary process at all. In light of the fact that the fundamental purpose of such process is to exclude individuals who prey on these closed communities, it seems reasonable as a first-pass to me to have an inquisitorial process in which accusations are investigated by neutral trained professional staff, and then action is taken based on an overall conclusion as to the impact that that student's presence would have on the learning environment.

Posted by: Paul Gowder | Sep 3, 2015 12:49:05 PM

But why should university discipline be subject to the same kinds of procedural protections as the criminal process?

In state universities, we have a framework for figuring these things out. I teach it to my students in the beginning of Con Law II (and actually, now I wish I were giving a final in this class so I could put this hypo on there)---the good old Matthews test.

And it seems to me that thinking about the Matthews factors in just straight-up hornbook fashion suggests that there's good reason to have less procedure in universities. The individual interest is lower---the deprivation threatened is merely an interest in attendance in that particular school (is that even a Goldberg-style property interest? It's not obvious. I REALLY want to find an excuse to make my students wrestle with this one now.) The government interest is arguably higher, because the interest is in protecting particularly vulnerable classes of victims (young students in a residential environment where they're forced to interact with perpetrators, and an environment, to boot, with all these kinds of alcohol problems that we all know about), PLUS the pedagogical interest in instilling appropriate sexual attitudes.

It may be that the problems of proof re: affirmative consent are still so insurmountable that if we actually applied the test we'd still want to throw out, or limit, the standard based on the third Matthews factor (risk of erroneous deprivation, for those private-law-ish readers who are trying to remember 2L year). But by actually thinking about it in these terms, rather than simply assimilating college discipline process to the criminal process, might allow us to craft intermediate positions that do a better job of serving all these interests (some kind of burden-shifting framework maybe? I don't know.).

Posted by: Paul Gowder | Sep 3, 2015 12:38:20 PM

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