Shifting Burdens: Prawfs Take Note of Affirmative Consent Issues

While lawprofs at Harvard (where Ted Cruz learned all about constitutional law) and Penn stood up when their respective schools sought to wiggle their way out of responsibility for establishing the star chamber, there has been remarkably little discussion about the problematic mechanics within the Academy.

That changed with Miami lawprof Tamara Rice Lave’s post at PrawfsBlawg, agreeing with Chancellor Carol McCoy’s decision in Mock v. University of Tennessee that affirmative consent shifted the burden of proof to the accused, the male student, to prove consent.

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.

I predicted that this would devolve into a shitstorm of feelz. I was wrong. The reaction was substantive, even though it suffered mightily from the Squire of Gothos dilemma. Lawprof Paul Gowder tried to hijack the post, reflecting his need to reread Matthews v. Eldridge to avoid the “remember the rubric, forget the rationale” problem, which gave rise to this:

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

The individual interest is lower—the deprivation threatened is merely an interest in attendance in that particular school.  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.

If we squint and ignore his self-serving conclusions as to who is a victim and who is a perpetrator in advance of, you know, proof, what stands out is his trivialization of the interests at stake. He characterizes it as “attendance in that particular school.” There was a tepid, yet inadequate, response, by the lawyer for FACE, failing to come anywhere near a meaningful reply.  So, Ima help, because that’s the kind of guy I am.

A foundational argument against due process in campus disciplinary proceeding for rape and sexual assault is that it’s not a criminal proceeding, so the accused need not be given the full panoply of constitutional due process rights he would be afforded in court.  Mind you, Matthews still requires that the accused be provided with such due process rights as are necessary and appropriate, given the circumstances so that it’s not a farcical proceeding, but not every right by rote.

Yet, this fails to give any depth of thought to what these proceedings are, if stripped of euphemisms and convenient characterizations. What distinguishes a criminal proceeding from a non-criminal proceeding isn’t the label its given, but whether it results in punishment.  None of the deeply thoughtful academics gave that any play at all.

Here’s a more thorough laundry list of what can happen:

  1. Termination of attendance at college;
  2. A permanent mark of “rapist” or “sexual predator” on a college record;
  3. Essentially no chance of attending any other college, since colleges really aren’t into inviting rapists to join their campus community;
  4. Preclusion from entering any career, occupation, profession requiring a college degree;
  5. Having his name and reputation smeared across campus as rapist or sexual predator;
  6. Ostracism;
  7. Having his name and reputation smeared across the internet in perpetuity as rapist or sexual predator, and following him when he applies for the only job that will take him, long-haul truck driver (apologies to long-haul truck drivers, Wrongway);
  8. Summary removal for fear and loathing from associations, teams, groups who might be tainted by having a rapist in their midst;
  9. Loss of opportunity costs for the years spent attending the college from which he’s just been expelled;
  10. Forfeiture of up to four years of tuition, perhaps as much as a quarter million dollars.

And the coup de grâce, anything said in the investigation or adjudication of accusations can be used against the accused in real court, where the protections offered come one process too late to fulfill their intended purpose.

So, does this seem trivial? There are felonies that would die to inflict this much damage on an accused.  Yet, Gowder blithely suggests it’s no big deal, because women are “particularly vulnerable victims,” because they’re women. Surely, one can’t expect modern women to be any more than vulnerable victims.

And this barely scratches the surface of the myriad problems, if considered with even a modicum of depth. But that said, the core of the post is the burden shifting of Affirmative Consent, and while accurate, that may be the least of the problems.  As commenter Hash points out, even if the burden was placed squarely on the accuser, it ain’t no big deal:

Q: Did you have sex?
A: Yes.
Q Did you consent to having sex?
A No.

Done. Burden met. That’s how life in the trenches actually happens. And since there is no right to cross-examination (a detail some prawfs were apparently unware of), and certainly not by anyone qualified to cross, we’re essentially back where we started.

Interestingly, Corey Rayburn Yung* responded in a post of his own at Co-Op that raised a fascinating point: What about the mens rea?  Pun intended, at least by me. Because Corey is huge into analogies, he explains it this way:

If the defense says that the defendant didn’t mean to discharge a gun, that would be relevant evidence to murder on or off campus in any tribunal even though the act requirement was clearly met (causing the death of another). Both in criminal law and administrative campus proceedings, sexual assault cases need to operate clearly using that very basic principle of criminal law.

It’s a great point, a thoughtful way to salvage the “offense” from its current “strict liability” status by introducing a mens rea culpability component.  So what are the chances that some professor of art history, sitting in judgment, will be capable of grasping the concept of mens rea, no less being sufficiently detached from the horror of mid-sex (or following month) change of heart rape?

But hey, no matter how it looks from the perspective of having no clue how the process happens, or the due process deficits, or the harm tantamount to life-destroying felonies, at least the Academy is starting to talk about it. Now it’s just a matter of bringing them up to speed.

*Corey and I also did a twitter dance on the issue, during which he noted that expulsion rarely happens, and the most common outcome is a semester’s suspension. When I asked for evidence of his assertions, he offered one data point from Yale.

I questioned whether it was fair to make such sweeping assertions based on one data point, to which Corey replied it seemed “good enough for twitter.”  Thus, a new twitter acronym is born, GEFT. Corey gets credit.

21 thoughts on “Shifting Burdens: Prawfs Take Note of Affirmative Consent Issues

  1. Sgt. Schultz

    Doubling back on yesterday’s post, it’s almost as if Cynthia Garrett was trying to validate your point. Her response to comments at Prawfs were awful, totally underwhelming and inadequate, and yet she held herself out as the spokesperson for the “cause,” including the FACE website link with her name.

    It’s one thing for an individual to post a crappy, inadequate comment, but when the spokesperson for a cause does such a poor job, it’s dangerous, as people (fairly) assume that’s all they’ve got. So yeah, this is dangerous, even more so than you suggested.

    1. SHG Post author

      I tried to explain to Garrett that her grasp and approach were inadequate. Rather than want to hear she wasn’t wonderful, she chose to tone police me because it’s my duty to address her in a tone that pleased her. That will tell you what a prissy flake she is. Her combination of cluelessness and narcissism was insufferable. Apparently, her only virtue was that she was willing to volunteer.

      1. Sgt. Schultz

        Just checked back over there, and she’s added more, explaining law to Hash. It’s painful to read, for both the reasons you stated. Beyond her inability to grasp the nuance, she tells him she “agrees” with him about criminal law. As if he’s seeking her approval. Totally narcissistic.

        Damn. If this is all they’ve got, they’re doomed.

  2. JacquesCuze

    Gowder’s minimization is used by many to justify these tribunals.

    But blink just once and you’ll find Valenti sneaking a 747 through the cracks. (Guardian 4/29/2015)

    > College rapists should not be able to transfer schools to skip consequences
    Privacy laws for students mean young men accused of rape don’t have to disclose the complaint to their new school. This just leads to new victims in new places…

    She goes on to urge mandatory disclosure on college transcripts to make sure the past follows the student around like a boot on a face…

    1. SHG Post author

      Sigh. If I leave one of the thousand collateral details out of one post (because, otherwise it would be 50,000 words long), there will always be someone who puts it in a comment as if they’ve discovered gold. Yay.

  3. anonymous coward

    I notice that all of this consenting and accuser protecting, assumes a girl accusing a boy of non-consensual activities. What about a boy who is forced by a girl? Will they be just as solicitous of his feelings and just as harsh on his attacker or attackers, or will the title IX establishment dismiss him as crying wolf?

    1. SHG Post author

      That question is fascinating every single time someone asks it. It never grows old. Never, no matter how many millions of times.

    2. markm

      At least at Amherst, the man is always guilty – even if he was blacked-out drunk and the woman initiated sex.

      [Ed. Note: Link deleted per rules.]

      1. SHG Post author

        So in light of my reply, you took it upon yourself to do what I decided shouldn’t be done here? For your first comment, no less? Because your judgment as to inviting silly questions at SJ by providing answers, in this case not a particularly helpful answer, is better than my judgment? At my blawg?

  4. Richard

    At the risk of adding another minute detail, the forfeiture of tuition is not just a done deal. Many students have paid that, and other expenses, with loans which carry a high rate of interest. They will be writing large, monthly checks for many years to come.

    1. SHG Post author

      That’s hardly a minute detail. It’s not only correct, but it can prove to be an overwhelming, lifelong burden.

  5. Fubar

    Model Title IX policies and procedures for colleges with modern network infrastructure:

    Who needs trials with this due process glitter?
    Just misogynists, angry and bitter.
    A coed’s a waif
    Who must be kept safe.
    So we’ll try these brute rapists on Twitter!

    A burden of proof? Technicality,
    An excuse to permit criminality.
    It’s dead white men’s sediment,
    A block, an impediment
    To today’s modern justice reality!

  6. mb

    I can’t figure out how this Yung dude is smart enough to understand that these rules are negating the mental state of the offense rather than shifting the burden of proof (even though it’s just nitpicking; a fair hearing on affirmative consent is pretty much the same as a hearing on regular consent with the burden of proof reversed and due process repealed) but still would use that idiotic theft analogy. Theft requires specific intent to deprive someone of a possessory interest, not failure to get affirmative consent when touching their stuff. A gift only requires intent and delivery. It can’t be revoked at any time without a word spoken. And the proper corollary for rape isn’t theft, it’s robbery. Affirmative consent treats a misunderstanding, even if completely reasonable on the part of the accused, as an act of violence. It would therefore transform lawful receipt of a gift into robbery if the giver, at any point, had a change of heart, unless the recipient could prove there was never an instant in which the giver was not actively communicating intent to make the gift.

      1. mb

        My reply would be that if they would teach it properly, we wouldn’t be having this conversation. But I’m banned from the entire rest of the internet.

  7. Pingback: The Grand Inquisitor (and other campus rape innovations) | Simple Justice

  8. John Barleycorn

    Fubar and The Sgt, in one post lifting. Outstanding, I must admit their contributions, nearly always, test and ready some reflection. If it is not their intent to disturb and for lack of a better word slam in the mosh pit. Fubar is ready and the Sgt. I can not judge, let alone hold, to a particular chi which he may be cemented to or not. Although, his cranky is nearly more perfect than his informative sometimes.

    If you ever get stuck on a title for one of your posts (which I know, you probably put more time into than the meat roll frenzy once you make up your mind and set to putting it down) text me esteemed one.

    I trust you are beginning to specialize in this particular niche as much as you write about it.

    I think, if you are successful in this pursuit it will be good for your soul. Even if you get a few rotten apples.


    P.S. Have some Aerobatics in Bondage. Frank was always trying. Not much here for a general audience but this track might assist your playlist when needed.

    1. John Barleycorn

      P.S. Your scribe on this topic could/would make for an outstanding opera.

      You do live in that town.

      If you ever get a call about that you should take it seriously.

      Fucking lawyers….

  9. mGhost

    This has always puzzled me. Affirmative consent, to me, is a concept entirely separate from burden of proof. Affirmative consent is a redefinition of what consent is – asserting that consent is given when it is positively communicated rather than simply not rejected.

    I can see that this concept always travels with a shift in burden of proof, but they seem unnecessarily entangled. Is there a reason why they stick together like that?

    1. SHG Post author

      Affirmative consent is a problematic standard on many levels. It’s not really a redefinition of consent, although it’s sold that way. Rather, at its most basic level, it’s a presumption of lack of consent unless consent is proved. That’s where the shift issue arises, that the accused is presumed guilty until he can prove his innocence. And given the circumstances, two people alone, the presumption largely dictates the outcome. And that’s only the start of the problems.

      It may make for a preferred policy choice by some, but it makes for an unworkable legal standard.

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