Affirmative Consent: Of Shifting Burdens and Fuzzy Analysis

At PrawfsBlawg, Miami lawprof Tamara Rice Lave has now made three attempts to show that the nouvelle criterion for campus sex, affirmative consent, shifts the burden of proof from accuser to accused.  To say that it’s been a difficult battle is an understatement.

The crux of her argument is that there is an implicit presumption built into affirmative consent that sex was nonconsensual, and to overcome that presumption, the accused is compelled to testify or produce evidence.  If he remains silent in the face of evidence of sex, he loses.

First, this discussion matters because the infiltration of affirmative consent into the world outside of campus sex is happening, as demonstrated by the American Law Institute’s efforts to change the model penal code to redefine rape and sexual assault using affirmative consent.  If you think this is just some cockamamie nonsense developed for campus feminists, you’re going to be blindsided when criminal sex offenses are modified to incorporate the new standard. It’s coming. At least, the effort to do so will be coming.

Second, advocacy groups, so filled with the passion of their convictions, are failing to adequately express the problems. Indeed, they seem to grab onto any argument, no matter how dubious, to support their cause.  This may be an inherent problem with passionate advocates, who are more concerned with supporting the team than supporting sound concepts, which means rejecting unsound concepts by others on the team. It’s the surest way to blow credibility.

Third, piecemealing the problems inherent in the new standard, which includes its execution on both a theoretical and practical level, may make for easier discussion, but it’s unhelpful in addressing why, in its totality, it’s a disaster. Law doesn’t happen in bits, but in its entirety.

Severing out one point, such as whether the preponderance of the evidence standard shifts the burden of proof, ignores the balance of a system that is untenable (not to mention unconstitutional) in its entirety.  The whole of the process happens at the same time, and tweaking one bit without the others will never resolve the problems, as a little manipulation of one bit will sufficiently compensate for a correction of another to produce the same result.

Much as this may make advocates sad, Lave’s premise, based on Chancellor Carol McCoy’s decision in Mock v. University of Tennessee, is flawed.  The presumption upon which McCoy relied, that sex is nonconsensual until proven consensual, which shifts the burden to the accused, is more a technical issue than anything else.  It’s a matter of asking the right witness the right questions:

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. 

Yet, this has been a huge ongoing debate. Go figure. Another huge issue is whether the proper standard for the burden of proof is preponderance of the evidence or beyond a reasonable doubt (or, as Rep. Jared Polis suggests, “whatever”).  This too may be a big fight over very little, as it relates to college discipline.

The initial problem is that college discipline is administered by art history profs for whom these standards are largely meaningless abstractions. The second problem is that they are so deeply attuned to the politics of sexual victimhood that their bias overwhelms the process. They not only believe the mythology of victimhood with all their hearts, but they are trained to believe that accusers are, by nothing more than a mere claim, victims (or worse, survivors. Sheesh).

If they were capable of a fair and competent application of the preponderance standard, the typical “he said/she said” scenario would, as a matter of law and logic, result in a finding in favor of the accused, as the positions would be equivalents, and neither would surpass that 50% of proof needed to reach 50.001%. But, of course, they’re not capable, because victims don’t lie and false claims don’t happen.

The final problem is that the “offense” has been redefined to strict liability, such as the intoxicated victim claim, the apparent consent by conduct (or even express enthusiastic consent) contradicted by post-hoc regret rationalizations, such as “I said yes, but only because I didn’t feel I could safely say no.”

If there was a meaningful mens rea component to the offense, or notice requirement to the accused, this wouldn’t work. But there isn’t, and even if there was, those adjudicating wouldn’t have the neutrality or grasp to appreciate such a nuanced distinction. Remember, art history prof.

And these problems permeate the discussion even as the requisites of due process, notice of the allegations against the accused, the right to competent counsel to challenge the accusations and the right to confront and cross-examine the accuser, are ignored. And advocates horse-trade them away because they have no grasp of their critical significance in reaching a fundamentally fair result. And yet, these advocates passionately believe they’re doing us a favor.

With this, there is no acknowledgement that the harms done to the falsely accused are so severe that while this is discussed as a college administrative issue, it’s every bit as punitive as a crime, but for the near-total absence of protections. There is almost no recognition of the actual harm done to the accused by this system (a quarter million dollar forfeiture?), and advocates are doing one god-awful shitty job of explaining it (the falsely accused may suffer from PTSD? Please).

Trivializing the consequences, or merely taking it for granted that it’s not criminal because someone stuck it in the “not criminal” slot, fails to address reality. Indeed, Rep. Polis thought the only consequence was that the male would have to transfer to another college. And nobody told him otherwise.

And why does it matter to criminal defense lawyers?  If a bunch of college kids want to shift the social norms for their sexual experimentation, and colleges want to keep their libidos under control, so what?  Because it’s a disaster for males on campus now, and is laying the groundwork for a huge problem that’s going to plop in our laps later when criminal law is modified to adapt to these norms.

By the time this happens, a body of law will have been developed that will be used as the foundation for the law we’re expected to work with, and it’s being developed by people who are dangerously clueless, prawfs who are dabbling with only one tiny piece of the puzzle and true believers who don’t give a damn about the looming disaster they’re about to cause.  If it’s not addressed now, don’t complain when the next wave of truly bad law smacks us in the face.

7 thoughts on “Affirmative Consent: Of Shifting Burdens and Fuzzy Analysis

      1. Hal

        Why do you blithely assume it was his mother that dropped him? This is precisely the sort of bias he was alluding to!

          1. Vin

            You suck. Neither my mother or my father dropped me on my head. But both were equally qualified to do so. Ergo, unlike victims of rape, who according to your blog, as is implied by “he loses”, can only be woman, dropping me on my head is gender neutral.

    1. Patrick Maupin

      They don’t need to bother trying to tinker with the wording until a guy is successful in getting a girl kicked out of school, and since guys (especially of that age) don’t usually go around crying “Rape!” (for a whole litany of reasons) they aren’t particularly worried about it at the moment.

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