Jul 022015

Bill Protecting Domestic Violence Victims from Getting Evicted Signed by Jindal

Emily Lane
July 1, 2015

Domestic violence victims facing difficult times already encounter further struggles when landlords evict them from rental properties or they’re forced financially to continue living with their abuser.

A bill signed into law Wednesday (July 1) by Gov. Bobby Jindal, however, puts protections in place for these types of victims in Louisiana, so they are not re-victimized by discriminatory housing policies.

The sponsor of the bill (SB 174), state Sen. Sharon Weston Broome, D-Baton Rouge, said 50 percent of homeless women and children are fleeing or have escaped domestic abusers. Many residential leases have clauses that make domestic violence or frequent police visits a cause for eviction.

Broome’s legislation seeks to hold perpetrators — not victims — accountable for violating these types of housing policies by creating a process landlords can follow. For example, the bill lets landlords evict just one of the residents on the list, the perpetrator. It also protects victims in some instances from eviction, in general, if they can prove with court documents or health records to be a victim.

Cashauna Hill, the executive director of the Greater New Orleans Fair Housing Center, has said the group recently represented a woman who returned home from the hospital after being beaten by her ex-boyfriend to find an eviction notice on the door.

“(Victims) should never have to choose between taking the abuse and having a safe place to live,” Broome said in April while testifying about her bill.

If victims have the option stay in or move to a place where they’re protected from their abuser, they have an opportunity to rebuild their life, said Beth Meeks, executive director of the Louisiana Coalition Against Domestic Violence, at the same hearing.

The Apartment Association of Louisiana lobbied against the bill, saying it would put building managers in a position to make assessments about domestic violence incidents when they’re not qualified to do so. Bill proponents argued the legislation outlined specific procedures only for incidents substantiated by law enforcement or Department of Children and Family Services personnel.

A similar bill was the only piece of domestic violence legislation that failed to pass the Louisiana Legislature in the 2014 session, and it was not without hiccups this year.

Broome steered a rocky course to push it through the recent legislative session but ultimately prevailed after making a number of compromises with the apartment association and a handful of lawmakers on the House Civil Law and Procedure Committee who expressed concerns with the bill. It passed the Senate by a vote of 21-16 and the House by a vote of 88-10.

Source: http://www.nola.com/politics/index.ssf/2015/07/jindal_domestic_violence_evict.html

Jul 012015

Why Affirmative Consent Laws Are Bad for Women

Janet Bloomfield
July 1, 2015

Researchers investigating why women do not generally ask men out on dates discovered that ‘a great majority of the women, 93%, preferred to be asked out — only 6% preferred to do the asking. The majority of men preferred to do the asking, 83%, while 16% preferred to be asked out on a date’, confirming that when it comes to making the first move, both women and men prefer men in the driver’s seat. Some feminist commentators describe this almost universal preference as ‘sexual aggression’ on the part of men, ascribing specious motives to a social preference shared by men and women alike.

New affirmative consent laws have the potential to turn much of this preferred behavior into sexual assault, retroactively, and given that men are expected to initiate expressions of sexual interest, the laws will initially be used to reclassify expected behaviours from men as criminal, depending on how women feel about those actions at a later date. Using the example of holding hands, critics of the law point out that much of what is now considered normal human interactions will fall under criminal assault if the new laws are effected. In a dissenting memo, ‘readers have been asked to consider the following scenario: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of Criminal Sexual Contact’ under proposed Section 213.6(3)(a).’

Affirmative consent laws, taken with women’s general reluctance and inexperience taking a leadership role in initiating potential romantic and/or sexual relationships indicates that women have not been conditioned to affirm consent from men, and instead, expect men to obtain consent from them. The laws, however, are gender neutral, and while the initial application will likely be against men, women are ill-prepared to conduct themselves sexually in a manner that routinely and consistently affirms men’s consent to sexual activity, leaving women more vulnerable to criminal charges. Recent campaigns to remind college students that consent to sexual activity, whether rendered in the affirmative ‘yes means yes’ or negative ‘no means no’ are aimed at men, instructing them to obtain consent from women. Men’s groups have created similar campaigns to remind women that they are also required to obtain consent from sexual partners, but this topic has not received much mainstream attention.

Women are ill-equipped to implement affirmative consent laws in their personal lives, and there is little cultural expectation that they do so, but legal standards will apply to them, regardless. Men prosecuted under college affirmative consent laws have increasingly been fighting back and suing colleges that sanctioned them for alleged sexual assault. Colleges generally require a ‘preponderance of evidence’ standard rather than the more rigorous ‘beyond a reasonable doubt’ standard, making colleges vulnerable to large financial settlements to men wrongly accused and punished for sexual assault, once the accused bring their cases to the formal legal system. Even when men are found innocent of all charges under the lower standards, colleges are still permitting them to be harassed and accused of rape and sexual assault.

Men’s willingness to sue colleges for mishandling sexual assault accusations suggests that affirmative consent laws, deployed against men in the general public, will trigger a similar backlash. Men will invariably begin to charge women with criminal sexual offences, and women, accustomed to being asked for consent, but not asking for consent, stand to face a much higher conviction rate than men. Affirmative consent laws turn mutually preferred social customs into criminal activity, and it is women who are likely to face the higher conviction rates.

Source: http://www.examiner.com/article/why-affirmative-consent-laws-are-bad-for-women

Jul 012015

Brandeis Betrays Students’ Rights

KC Johnson
June 24, 2015

Earlier this spring, a student filed a due process lawsuit against Brandeis, charging that he was disciplined under a procedure different from the one that existed when he arrived on campus. In one respect, the facts of this case are atypical. After a nearly two-year relationship (between two male students) ended, the accuser appears to have reinterpreted the relationship as sexual assault. In another respect, though, this case is quite typical—a highly dubious procedure produced a questionable result.

Brandeis recently filed a motion urging the district court to dismiss the claim. (You can read the college’s filing here.) A key claim by the accused (who filed under a pseudonym) was breach of contract—that Brandeis was obligated to follow the disciplinary procedure that existed when he matriculated to the school. Instead, the college transformed a procedure that originally included a hearing and judgment based on “clear-and-convincing” evidence into the administration’s preferred “preponderance-of-evidence” standard. That standard called for a “single investigator” in which the accused student loses any right to cross-examine his accuser (or other witnesses), or even to hear what accusing witnesses have to say.

Brandeis doesn’t deny what it did, but astonishingly describes substituting one wholly different procedure for another as merely a “tweak” to its rules — part of the college’s “evolving” disciplinary standards and therefore not a breach of contract. How so? Brandeis didn’t wholly substitute one set of procedures for another in all student disciplinary cases, the college maintains, but did so “for only a narrow subset of student misconduct.” Here’s how Merriam-Webster defines tweak: “to make usually small adjustments in or to fine-tune.” It seems to me wholly replacing a procedure is a bit more than a small adjustment, or fine-tuning.

Even if the procedural change was more than a tweak, Brandeis claims it had good reason for acting as it did. Why? The “Dear Colleague” letter “explains that cross-examination and confrontation of the accuser would actually violate Title IX.” But in fact that letter offers no such explanation. In 2011, the Office of Civil Rights did assert—as part of its more general attack on due process rights of the accused—that despite nearly four decades of policy where this issue went unmentioned, it heretofore would “strongly discourage” cross-examination, even in instances where the accuser was the sole witness against the accused.

But strong discouragement is not the same as an actual violation. At most, the Dear Colleague letter maintains that cross-examination “possibly” [emphasis added]—not “actually,” as Brandeis claims—might create a hostile learning environment, allowing an appeal to Title IX. If Brandeis can’t even accurately describe its obligations under the Dear Colleague letter, why should the court trust its description of the contested facts in the case?

Beyond the procedure, Brandeis aggressively maintains that the single investigator’s conclusions—based on unsworn testimony that she did not record, notes of which she did not provide to the accused student—were just. In so doing, the college essentially concedes that its standards for determining what is or is not sexual assault are almost wholly arbitrary.

Brandeis asserts that “the common thread running through all of [the accused] claims is sexual, because [the accused] and [the accuser] had a dating relationship, consent to any and all sexual activity must be assumed.” But this isn’t what the lawsuit maintains. Rather, the lawsuit suggests that the existence of a long-term relationship must be a factor in evaluating the viability of the accuser’s after-the-fact, post-bad-breakup claims.

For instance: one infraction determined by the investigator (a former OCR staffer) was an alleged unwanted advance by the accused (at that point a closeted gay man) toward the accuser (at that point openly gay)—just before the two commenced their long-term relationship. Both sides agree the advance occurred. If the two didn’t have a 21-month relationship that began just after the alleged unwanted advance, perhaps the accuser’s tale might have some credibility. But surely the context matters here; and if the advance was unwanted, why did the accuser, who was open about his sexuality, decide nonetheless to initiate and maintain a long-term relationship with his alleged assaulter?

Similarly, Brandeis defends its investigator’s “balanced” conclusion that the accused student committed sexual misconduct by: (a) sometimes waking up his sleeping boyfriend with kisses; (b) sometimes staring at his long-term boyfriend’s nude body in the communal showers; and (c) sometimes getting “sulky” when the two didn’t have sex. Even if true, by those standards one or both partners of virtually any long-term couple at Brandeis (or anyplace else) could be deemed a rapist by the college. By describing behavior customary to many long-term relationships as sexual assault, Brandeis trivializes actual sexual assault.

One final point: somewhat oddly, Brandeis cites to the DePauw decision to justify its motion to dismiss. It seems to me that Judge Lawrence, in the DePauw case, did exactly what Brandeis wants court not to do here: he meaningfully examined the college’s procedures and evidence, took testimony in open court, and concluded that very little basis existed for the college’s decision to brand Ben King a rapist.

Will we see a similarly engaged court in Massachusetts?

Source: http://www.mindingthecampus.org/2015/06/brandeis-betrays-students-rights/

Jul 012015

Colleges Turning to Judges in Campus Sexual Assault Cases

Jake New
June 30, 2015

Campus hearings, even when they’re regarding an activity as serious as sexual assault, are not courtrooms.
It’s a distinction that the U.S. Department of Education has embraced, requiring colleges to conduct their own investigations into claims of sexual assault, and to adjudicate those cases under Title IX of the Education Amendments of 1972.

Colleges use “preponderance of evidence” instead of “beyond reasonable doubt” as the standard of proof. If a student is found in violation of campus rules, he or she is “responsible” for the misconduct, not “guilty” of a crime. The potential punishments are writing assignments, suspension or expulsion — not prison.

In the past, there were no lawyers or judges, just panels of faculty, students and administrators. But that’s beginning to change at some colleges, where outside judges — typically retired state judges — are being hired to oversee hearings. The hearings are still held under college rules, not state rules for courts.

Critics worried that campus sexual assault hearings are nothing but a kangaroo court that ignores the accused’s due process rights are praising the change. Some victims’ advocates, however, worry that turning a campus hearing into a courtroom could replicate the same perceived pitfalls of the legal system that have led many victims of sexual assault to turn to Title IX in the first place.

“There is a distinct subset of people in schools that are of the opinion that external adjudicators are the way to go,” Peter Lake, a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University, said. “I think people are experimenting with a variety of different models, and there are some who think that working with highly professionalized external adjudicators is the right pathway, especially in complex or high-profile cases. It’s uncharted territory. We’re essentially creating a college court system.”

Colleges that opt to use outside adjudicators, Lake said, don’t often advertise that fact, so it’s difficult to get a read on how common the practice currently is.
Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management, said he couldn’t comment on which colleges use outside adjudicators, but noted that a few of NCHERM’s clients do use judges now. It’s not a system he recommends, though.

“I am hearing about it more,” Sokolow said. “Generally I don’t think judges are a good idea, as it makes the process more legalistic and held to higher standards in terms of later legal challenges.”

In 2013, Swarthmore College hired former Pennsylvania Supreme Court Justice Jane Greenspan to adjudicate cases of sexual assault there. Like most colleges, cases of sexual assault at Swarthmore were previously brought before a panel of students and faculty members. Under the previous system, Swarthmore faced lawsuits from both victims and accused students over how it handled sexual assault allegations.

In December, Florida State University hired retired Florida Supreme Court Justice Major Harding to adjudicate the hearing of Jameis Winston, the university’s star quarterback. FSU faced intense scrutiny over its handling of allegations that Winston raped a female student. The university was aware of the allegations for two years before scheduling the hearing.

By hiring Harding — a seemingly impartial party with no stake in the performance of the university’s football team — FSU hoped to avoid any further accusations that it was shielding Winston from being punished. John Banzhaf, a law professor at George Washington University, has long argued that colleges should use outside adjudicators to remain impartial. Banzhaf has also suggested creating regional consortiums independent of any one college that could be brought in to decide cases of sexual assault.

“Retired judges and others trained to evaluate evidence could better and more fairly, free from any possible biases, determine the truth, much better than professors of computer science or geology who today often make up the disciplinary panels on many campuses,” Banzhaf said.

Having experience as a criminal judge doesn’t always equate to having experience with campus administrative procedures, however, and the differences between the two can muddy the process. A transcript of Winston’s hearing in December revealed that Harding, the former Florida Supreme Court justice, and some of the lawyers acting as advisers to the students in the case were sometimes unaware of how the hearing was supposed to proceed, including whether lawyers were permitted to listen in on the hearing and who was meant to speak and when.
The university attempted to bring Harding and the advisers up to speed with a briefing about the process, according to the transcript, but the session wasn’t completed before the hearing began. Harding ruled that both students’ versions of the events were equally probable, thus the evidence was “insufficient to satisfy the burden of proof.”

“There is a challenge in getting somebody who is extremely talented as a jurist or an investigator, but isn’t perhaps specialized in Title IX training or campus culture,” Lake said. “That’s a little harder to pick up unless those folks are especially trained in it. There’s no question that we’re moving from a more amateur system to a more professionalized one, and if that’s happening we’re going to need to build a culture of professional individuals who are highly trained in both internal and external processes.”

Another way the campus model is becoming professionalized, Lake said, is the increasingly involved role of lawyers. In the past, accusers and the accused have been allowed to consult with lawyers, but only in an advisory role. That’s changing, too.

Inspired by fears that the federal government’s pressure on colleges to better investigate and adjudicate cases of campus sexual assault is leading administrators to trample on the due process rights of accused students, North Dakota and South Carolina are both considering legislation that would allow attorneys to more fully participate in campus proceedings on behalf of accused students.

North Carolina already passed a similar bill last year, and students in Arkansas now have the right to an attorney when appealing “nonacademic” suspensions or expulsions.

The Foundation for Individual Rights in Education called the North Dakota legislation “sorely needed,” saying that the bill would provide students with “a powerful new tool to ensure that their rights won’t be trampled on.” In a letter sent to state legislators in February, NASPA: Student Affairs Administrators in Higher Education disagreed, saying that the “approach ignores the balance set by the U.S. Supreme Court regarding the scope of accused students’ due process rights” under the Constitution.

Laura Dunn, executive director of SurvJustice, a victims’ advocacy group, said that that the involvement of legal professionals in Title IX hearings is a good thing, but that lawyers should not participate in the actual hearing. They should remain in an advisory role, said Dunn, who is herself a lawyer who attends campus hearings on behalf of victims.

Rather than shoehorning lawyers and judges into the campus model, she said, colleges should instead focus on making sure their employees are appropriately trained in legal and campus procedures.

“We’re not in a court, we’re in a hearing about a school’s code, and I think there is a value to not making it like a courtroom,” Dunn said. “This is not a criminal court or a civil court, it’s an administrative hearing. In some ways it makes sense to have outside investigators and to make sure Title IX coordinators are actual lawyers and make sure they’re complying with law, but those people don’t inherently need to be an actual judge.”

Source: https://www.insidehighered.com/news/2015/06/30/colleges-turning-judges-campus-sexual-assault-cases

Jul 012015


Contact: Gina Lauterio

Email: info@saveservices.org

‘Sexual Police State:’ NY Times Editorial Highlights Concerns with Expansion of Sexual Assault Laws

WASHINGTON / July 1, 2015 – A recent New York Times editorial highlights legal changes that are placing millions of Americans at-risk of running afoul of sexual assault laws. The article warns against the criminalization of sexual activities that are “ordinary” or “unsavory but not illegal.”

Authored by NY Times contributing op-ed writer Judith Shulevitz, the June 27 editorial can be seen here: http://www.nytimes.com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html

Shulevitz spotlights the expansion of affirmative consent policies, also referred to as “yes-means-yes” consent. Affirmative consent serves to remove the presumption of innocence from the accused. “It’s an unworkable standard,” says Harvard law professor Jeannie Suk. Retired judge Nancy Gertner similarly charges that affirmative consent “has no business being in the criminal law.”

Shulevitz also critiques the current efforts of the American Law Institute (ALI) to develop a new Model Penal Code for Sexual Assault. Under the its draft code, merely holding hands or a one-time kiss on the cheek, without a partner’s explicit consent, could become grounds for a criminal complaint.

The ALI project has triggered opposition, with 70 Institute members and advisors signing a Memo opposing the new provisions: http://lcbackerblog.blogspot.com/2015/05/sexual-assualt-at-american-law.html

“The United States is already facing a serious problem of over-criminalization and over-incarceration,” notes SAVE spokesperson Sheryle Hutter. “Does it make sense to send even more persons to jail for failing to follow an unworkable affirmative consent standard?”

The ALI draft policy has attracted criticism from others. Constitutional attorney Hans Bader warns that affirmative consent policies could be employed to “seek even more power over people’s private lives.” American Enterprise Institute scholar Christina Sommers has described the ALI draft as rules for a “sexual police state.”


Stop Abusive and Violent Environments is working to promote effective solutions to campus sexual assault: http://www.saveservices.org/


Jun 292015

Three Women Sue UC, Say Sex Assault Complaints Were Ignored

Henry Lee
June 29, 2015

Three women who said they were sexually assaulted as UC Berkeley students sued the University of California on Monday, accusing officials of failing to adequately respond after they came forward.

Sofie Karasek, Aryle Butler and Nicoletta Commins said in the suit filed in Alameda County Superior Court that they felt victimized all over again when their complaints to campus officials weren’t treated seriously or quickly enough. They accused the university of giving their attackers more deference and respect.
“To be honest, I don’t want to be here today. I’m frustrated, I’m angry, I’m sad, and I’m disappointed that I need to be here to do what I believe is the right thing, again,” Karasek said at a news conference in Emeryville.

The lawsuit comes amid a nationwide spotlight on campus sexual assault. In 2013, nine women, including Karasek, spoke publicly about their experiences, accusing campus officials of treating their allegations too lightly. Butler and Commins have also come forward previously to blast how they were treated by the university.

Funding reforms

As a result, UC President Janet Napolitano pledged last year to fund a series of reforms recommended by a special committee she had created on sexual violence, including comprehensive training and education for all students and employees.

But the women who sued said the changes have been mostly cosmetic and part of a “self-congratulatory” public relations campaign.

“It’s been slow going, to say the least, and this lawsuit is an effort to incentivize,” said Irwin Zalkin, an attorney for the women. “At the end of the day, when they have to pay money, when institutions end up having to pay money, that seems to me what captures their attention the most.”

UC Berkeley spokeswoman Janet Gilmore said Monday that the university could not comment on the suit because it had not yet been served with it.

But she said, “At UC Berkeley, we are committed to creating a campus community where sexual assault is not tolerated. Working with students, faculty and staff, we have made great strides on this front, and we are dedicated to building on those efforts.”

The state auditor issued a report last year accusing UC Berkeley, UCLA, Chico State and San Diego State of doing little to prevent sexual violence on their campuses by failing to train enough employees and educate students on the subject. The audit criticized the slowness of the universities’ responses to several incidents of harassment and violence and noted that campuses fail to consistently inform students about the status and outcome of their cases.

Response disputed

Gilmore noted the audit found that “case outcomes were reasonable and that sanctions were appropriate given the severity of the incidents.” The plaintiffs, however, questioned that assessment.

The federal government is investigating possible violations of federal laws in how administrators addressed sexual violence at more than 100 colleges and universities, including UC Berkeley. Federal laws — the Clery Act and Title IX — specify how colleges and universities must respond to and publicize crimes of all kinds and requires that specific steps be taken in the case of sexual assault.
Karasek was a freshman in 2012 when she said another student sexually assaulted her during a trip taken by the Cal Berkeley Democrats in San Diego. Her alleged assailant was placed on “disciplinary probation” by the university, but Karasek said she didn’t learn this until after he had graduated.

“At no time was I included in any investigatory process, nor was I given the opportunity to tell my side of the story,” she said.

Butler was a research assistant who reported being sexually assaulted by a faculty member while conducting research in Alaska in 2012. But a campus administrator questioned whether Butler “ever affirmatively rebuffed any of (his) advances” and “admonished Butler regarding the consequences of falsely reporting sexual assaults,” the lawsuit says. The man hasn’t been investigated, Butler said.
“I had expected swift, appropriate and firm response to keep my fellow peers safe,” Butler said. “I never imagined that such a famed liberal institution would instead place more value on its reputation and image than in the very well-being of the students it prides itself on serving.”

Process ‘drawn out’

Commins said she was attacked at her apartment in 2012 by a fellow member of the campus tae kwon do club. The man, Nicholas Liou, 23, was convicted of felony assault, court records show, but will be allowed back on campus at the end of his suspension this year. The process was “drawn out for years,” she said.
“I know that at its core, the university that I once loved is more supportive to perpetrators of sexual violence than to victims,” Commins said.

In all three cases, “Berkeley did nothing substantive in response to their reports of sexual assault, and what they did amounted to indifference, at best,” said Alex Zalkin, another attorney for the women.

Source: http://www.sfgate.com/bayarea/article/3-women-sue-UC-Berkeley-alleging-sex-assault-6356471.php

Jun 292015

Regulating Sex

Judith Shulevitz
June 27, 2015

THIS is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship. But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?

According to the doctrine of affirmative consent — the “yes means yes” rule — the answer is, well, yes, he is. And though most people think of “yes means yes” as strictly for college students, it is actually poised to become the law of the land.

About a quarter of all states, and the District of Columbia, now say sex isn’t legal without positive agreement, although some states undercut that standard by requiring proof of force or resistance as well.

Codes and laws calling for affirmative consent proceed from admirable impulses. (The phrase “yes means yes,” by the way, represents a ratcheting-up of “no means no,” the previous slogan of the anti-rape movement.) People should have as much right to control their sexuality as they do their body or possessions; just as you wouldn’t take a precious object from someone’s home without her permission, you shouldn’t have sex with someone if he hasn’t explicitly said he wants to.

And if one person can think he’s hooking up while the other feels she’s being raped, it makes sense to have a law that eliminates the possibility of misunderstanding. “You shouldn’t be allowed to make the assumption that if you find someone lying on a bed, they’re free for sexual pleasure,” says Lynn Hecht Schafran, director of a judicial education program at Legal Momentum, a women’s legal defense organization.

But criminal law is a very powerful instrument for reshaping sexual mores. Should we really put people in jail for not doing what most people aren’t doing? (Or at least, not yet?) It’s one thing to teach college students to talk frankly about sex and not to have it without demonstrable pre-coital assent. Colleges are entitled to uphold their own standards of comportment, even if enforcement of that behavior is spotty or indifferent to the rights of the accused. It’s another thing to make sex a crime under conditions of poor communication.
Most people just aren’t very talkative during the delicate tango that precedes sex, and the re-education required to make them more forthcoming would be a very big project. Nor are people unerringly good at decoding sexual signals. If they were, we wouldn’t have romantic comedies. “If there’s no social consensus about what the lines are,” says Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, then affirmative consent “has no business being in the criminal law.”
PERHAPS the most consequential deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association — membership is by invitation only — try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute’s annual meeting in May, some highly instructive hell broke loose.

In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”

Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”

The obvious comeback to this is that no prosecutor would waste her time on such a frivolous case. But that doesn’t comfort signatories of the memo, several of whom have pointed out to me that once a law is passed, you can’t control how it will be used. For instance, prosecutors often add minor charges to major ones (such as, say, forcible rape) when there isn’t enough evidence to convict on the more serious charge. They then put pressure on the accused to plead guilty to the less egregious crime.

The example points to a trend evident both on campuses and in courts: the criminalization of what we think of as ordinary sex and of sex previously considered unsavory but not illegal. Some new crimes outlined in the proposed code, for example, assume consent to be meaningless under conditions of unequal power. Consensual sex between professionals (therapists, lawyers and the like) and their patients and clients, for instance, would be a fourth-degree felony, punishable by significant time in prison.
It’s not that sex under those circumstances is a good idea, says Abbe Smith, a Georgetown law professor, director of the school’s Criminal Defense and Prisoner Advocacy Clinic, and an adviser to the American Law Institute’s project on sexual assault. “It’s what my people would call a shanda, mental health professionals having sex with their clients,” says Ms. Smith. (“Shanda” is Yiddish for scandal.) But most of these occupations already have codes of professional conduct, and victims also have recourse in the civil courts. Miscreants, she says, “should be drummed out of the profession or sued for malpractice.”

It’s important to remember that people convicted of sex crimes may not only go to jail, they can wind up on a sex-offender registry, with dire and lasting consequences. Depending on the state, these can include notifying the community when an offender moves into the neighborhood; restrictions against living within 2,000 feet of a school, park, playground or school bus stop; being required to wear GPS monitoring devices; and even a prohibition against using the Internet for social networking.

We shouldn’t forget the harm done to American communities by the national passion for incarceration, either. In a letter to the American Law Institute, Ms. Smith listed several disturbing statistics: roughly one person in 100 behind bars, one in 31 under correctional supervision — more than seven million Americans altogether. “Do we really want to be the world leader of putting people in cages?” she asked.

Affirmative-consent advocates say that rape prosecutions don’t produce very many prisoners. They cite studies estimating that fewer than one-fifth of even violent rapes are reported; 1 to 5 percent are prosecuted and less than 3 percent end in jail time. Moreover, Stephen J. Schulhofer, the law professor who co-wrote the model penal code, told me that he and his co-author have already recommended that the law do away with the more onerous restrictions that follow from being registered as a sex offender.
I visited Mr. Schulhofer in his office at New York University Law School to hear what else he had to say. A soft-spoken, thoughtful scholar and the author of one of the most important books on rape law published in the past 20 years, “Unwanted Sex: The Culture of Intimidation and the Failure of Law,” he stresses that the draft should be seen as just that — notes from a conversation in progress, not a finished document.

But the case for affirmative consent is “compelling,” he says. Mr. Schulhofer has argued that being raped is much worse than having to endure that awkward moment when one stops to confirm that one’s partner is happy to continue. Silence or inertia, often interpreted as agreement, may actually reflect confusion, drunkenness or “frozen fright,” a documented physiological response in which a person under sexual threat is paralyzed by terror. To critics who object that millions of people are having sex without getting unqualified assent and aren’t likely to change their ways, he’d reply that millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, but the law still saves lives. As long as “people know what the rules of the road are,” he says, “the overwhelming majority will comply with them.”
He understands that the law will have to bring a light touch to the refashioning of sexual norms, which is why the current draft of the model code suggests classifying penetration without consent as a misdemeanor, a much lesser crime than a felony.

This may all sound reasonable, but even a misdemeanor conviction goes on the record as a sexual offense and can lead to registration. An affirmative consent standard also shifts the burden of proof from the accuser to the accused, which represents a real departure from the traditions of criminal law in the United States. Affirmative consent effectively means that the accused has to show that he got the go-ahead, even if, technically, it’s still up to the prosecutor to prove beyond a reasonable doubt that he didn’t, or that he made a unreasonable mistake about what his partner was telling him. As Judge Gertner pointed out to me, if the law requires a “no,” then the jury will likely perceive any uncertainty about that “no” as a weakness in the prosecution’s case and not convict. But if the law requires a “yes,” then ambiguity will bolster the prosecutor’s argument: The guy didn’t get unequivocal consent, therefore he must be guilty of rape.

SO far, no one seems sure how affirmative consent will play out in the courts. According to my informal survey of American law professors, prosecutors and public defenders, very few cases relying exclusively on the absence of consent have come up for appeal, which is why they are not showing up in the case books. There may be many reasons for this. The main one is probably that most sexual assault cases — actually, most felony cases — end in plea bargains, rather than trials. But prosecutors may also not be bringing lack-of-consent cases because they don’t trust juries to find a person guilty of a sex crime based on a definition that may seem, to them, to defy common sense.

“It’s an unworkable standard,” says the Harvard law professor Jeannie C. Suk. “It’s only workable if we assume it’s not going to be enforced, by and large.” But that’s worrisome too. Selectively enforced laws have a nasty history of being used to harass people deemed to be undesirable, because of their politics, race or other reasons.

Nonetheless, it’s probably just a matter of time before “yes means yes” becomes the law in most states. Ms. Suk told me that she and her colleagues have noticed a generational divide between them and their students. As undergraduates, they’re learning affirmative consent in their mandatory sexual-respect training sessions, and they come to “believe that this really is the best way to define consent, as positive agreement,” she says. When they graduate and enter the legal profession, they’ll probably reshape the law to reflect that belief.

Sex may become safer for some, but it will be a whole lot more anxiety-producing for others.

Source: http://www.nytimes.com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html?_r=0

Jun 262015

McCaskill Tells Campus Police to Investigate Assaults More Quickly

June 26, 2015

Speaking at the Campus Safety Nation Forum on Thursday, Senator Claire McCaskill, a Missouri Democrat, urged college law enforcement officers to more speedily and thoroughly collect evidence and interview witnesses when investigating claims of campus sexual assault. “That is where the truth reveals itself,” McCaskill, a former sex crimes prosecutor, said. “Witnesses corroborate or they show lies. Evidence corroborates or it shows lies. And this can’t be done weeks later or even months or years later.”

McCaskill described Florida State University’s handling of sexual assault allegations against former star quarterback Jameis Winston as “terribly unfair” to both the accuser and the accused, in part because the university waited so long to conduct an investigation. The alleged victim reported the assault three hours after she said it occurred. The first witness, McCaskill said, wasn’t interviewed until 342 days later. The campus hearing did not take place until two years after the allegations were made.

Treating all claims of campus sexual assault as worthy of a thorough investigation, McCaskill said, could help later clarify who is telling the truth in “he said, she said” types of hearings. “All of these cases deserve to be investigated one way or another,” she said.

Source: https://www.insidehighered.com/quicktakes/2015/06/26/mccaskill-tells-campus-police-investigate-assaults-more-quickly

Jun 262015

University of Chicago Acknowledges Severe Limitations on Campus Sexual Assault Survey

Ashe Schow
June 25, 2015

A new campus sexual assault survey from the University of Chicago is sure to make the rounds of unscrupulous reporters looking for attention-grabbing headlines to support their “rape culture” narrative.

But right up front, UC acknowledges the survey’s limitations:

“Although we present percentages of respondents who have experienced various forms of sexual misconduct in the tables below, it is not yet possible to draw conclusions from these results about the incidence of these events across the University population as a whole. As with results from similar surveys recently conducted at other institutions, these numbers should be understood only to represent the incidence of such events among the students who responded to the survey.” (Emphasis original.)

Notice the multiple uses of italics. UC knows this survey is not representative. In fact, this is a classic case of selection bias, whereby a random sample cannot be achieved because certain students — i.e. those who feel they have been sexually assaulted — may be more likely to respond to the survey. It’s safe to assume that students who weren’t assaulted were less likely to respond.

Of course, the headlines this survey will produce will be too tantalizing for some journalists to pass up. As with the University of Michigan survey released yesterday, this one will probably be used to call for further action to stop the alleged epidemic of campus sexual assault — action that probably won’t help actual victims and may instead result in ruining the lives of innocent students.

Source: http://www.washingtonexaminer.com/university-of-chicago-acknowledges-severe-limitations-of-campus-sexual-assault-survey/article/2567028

Jun 242015

U-M to Release Findings of ‘Campus Climate’ Sexual Assault Survey

Jeremy Allen
June 23, 2015

Officials at the University of Michigan will release the results of a 3,000-student campus sexual misconduct climate survey during a Wednesday, June 24, news conference at the Michigan Union.

Michigan President Mark Schlissel said in January that an important step for the university was to assess the campus climate and culture in relation to sexual misconduct, and that the survey would serve as a catalyst for it.

The survey was announced about six weeks after U-M released its first-ever report solely devoted to sexual misconduct. The report revealed that sexual misconduct rose to 129 incidents in 2014 from 83 the previous year.

As a result of the school’s mishandling of a sexual assault matters, including one involving former Michigan football kicker Brendan Gibbons, the U.S. Department of Education’s Office of Civil Rights launched an investigation against U-M. It’s one of more than 75 higher learning institutions in the country being examined by the agency.

“Learning about the experiences of students and the degree to which students feel safe and respected will help us to better understand how we can more effectively address and prevent sexual misconduct,” Schlissel wrote in his message to campus in January.

“U-M will make the findings from the survey public to promote transparency and allow others to learn from our data.”

The university has taken other steps to curb sexual assaults on campus, and Holly Rider-Milkovich, the school’s Director of the Sexual Assault Prevention and Awareness Center, has also played a large role in transforming the way U-M responds to sexual assault cases on campus.

Rider-Milkovich, who will join Schlissel and survey research expert William Axinn of the U-M Institute for Social Research on the panel for the 1 p.m. news conference Wednesday, said in an April 9, 2015, interview with The Ann Arbor News that the university is promoting affirmative consent, or verbal, sober and enthusiastic consent.

“It’s a huge cultural shift,” Rider-Milkovich said. “We are not fearful of having difficult conversations at U-M.”

Another U-M official, Elizabeth Armstrong, a sociologist and author of Paying for the Party, a study of Greek life and social inequality, recently told The Washington Post that difficult conversations are one way to ensure sexual assaults are minimized, but that the conversations need to start at home.

“We found that the parents who were having extended conversations with their daughters about all these issues, that their daughters were safer in college,” Armstrong told The Washington Post. “With the boys, it was ‘You’ve got to understand, if she’s drunk, that’s illegal. If she’s incapacitated, it could ruin your life.'”

Earlier this month, U-M sent more than 20 officials — including vice president for student life E. Royster Harper, Title IX coordinator Anthony Walesby, Police Chief Robert Neumann, dean of students Laura Blake Jones, representatives from Greek Life, and 10 student leaders representing on-campus organizations — to the Lansing for a sexual assault summit hosted by Michigan’s first lady Sue Snyder.

The summit, co-hosted by State Sens. Tonya Schuitmaker and Rebekah Warren, and State Reps. Laura Cox and Marilyn Lane, called for a collaborative effort from higher education institutions across the state to come together to discuss and implement new ways of combating sexual assault.

“Sexual assault has been a sensitive topic gaining national attention and I believe Michigan can and should be a leader in addressing this critical issue,” Snyder said.

“As a mom whose youngest daughter will soon be a college sophomore, this issue has taken on a personal meaning. As first lady it’s an honor to use my voice in an effort to make our students’ home away from home – our college campuses, safer.”

Wednesday afternoon’s conference will take place in the Wolverine Room on the first floor of the Michigan Union, located at 530 S. State St. in Ann Arbor.

Source: http://www.mlive.com/news/ann-arbor/index.ssf/2015/06/u-m_ready_to_release_findings.html