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:
- Termination of attendance at college;
- A permanent mark of “rapist” or “sexual predator” on a college record;
- Essentially no chance of attending any other college, since colleges really aren’t into inviting rapists to join their campus community;
- Preclusion from entering any career, occupation, profession requiring a college degree;
- Having his name and reputation smeared across campus as rapist or sexual predator;
- 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);
- Summary removal for fear and loathing from associations, teams, groups who might be tainted by having a rapist in their midst;
- Loss of opportunity costs for the years spent attending the college from which he’s just been expelled;
- 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?
Q Did you consent to having sex?
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.