‘Affirmative Consent’ Law Unfair and Unconstitutional
February 21, 2016
Connecticut lawmakers are considering a bill that would significantly change college disciplinary proceedings in cases that involve allegations of sexual misconduct. Among other things, the bill would put the burden of proof upon the accused to establish their innocence. This is almost surely unconstitutional, and our legislature should decline to pass any law that contains such a provision.
Everyone knows that in a criminal case, the government must prove its case “beyond a reasonable doubt.” The scales are tipped this way because the stakes for the defendant — possible incarceration, other restrictions on liberty, and the stigma of a criminal conviction — are so severe.
Somewhat less known is the standard of proof in most civil actions between private parties, lawsuits such as personal injury cases, contract cases and property disputes. In those cases, the plaintiff must prove his case by a “preponderance of the evidence.” This means, in effect, “more likely than not,” or 51 percent likelihood.
In between is an intermediate standard of proof, called proof by “clear and convincing evidence.” This standard is considered roughly the midpoint between “beyond reasonable doubt” and “preponderance of the evidence.” The Supreme Court has held that this standard is required by the Constitution “in government-initiated proceedings that threaten the individual involved with a significant deprivation of liberty or stigma.” Examples include cases in which a defendant faces the termination of parental rights, involuntary civil commitment, deportation or denaturalization.
Think of the possible consequences when a college student is the subject of disciplinary proceedings based on allegations of sexual misconduct. The range of possible penalties includes suspension and expulsion. That means being temporarily, and perhaps permanently, barred from the student’s on-campus home; loss of access to campus facilities and activities; forced separation from friends and faculty; and the enormous stigma of having suffered these deprivations due to sexual misconduct.
Sanctions of this type are not comparable to incarceration, and so it would not be reasonable to compare college disciplinary proceedings to criminal cases that require proof of guilt beyond a reasonable doubt. But neither can they be compared to the typical lawsuit in which the defendant is at risk for only a money judgment. When a person is at risk of being adjudicated a sex offender, uprooted and barred from his college campus, that implicates the kind of “significant deprivation of liberty or stigma” that I believe requires proof of guilt by clear and convincing evidence.
Last year, consistent with prodding by the Obama administration, Connecticut’s state Senate voted in favor of a bill that would require campus administrators to use the lower “preponderance of the evidence” standard in disciplinary proceedings involving allegations of sexual misconduct. The House did not take up the bill, which would have involved the constitutional issues raised here.
As described in news reports, this year’s version of the bill goes even further: College administrators would not have to prove their cases by clear and convincing evidence, preponderance of the evidence, or any standard at all. Rather, the burden of proof would be shifted from the complaining witnesses to the accused students, who would be required to prove that they obtained affirmative consent, as defined in the bill, to the sexual activity at issue. While last year’s version of the bill was constitutionally suspect, the current version is even more so.
No reasonable person can question the laudable goal of fighting sexual misconduct, on college campuses or anywhere else. However, in doing so, we cannot ignore constitutional principles that protect the rights of the accused.
William J. O’Sullivan of Rocky Hill is a lawyer.