Author: saveadmin

PR: American Law Institute Pulls the Plug on Affirmative Consent

Post author By saveadmin
Post date May 23, 2016

Contact: Gina Lauterio
Telephone: 301-801-0608
Email: glauterio@saveservices.org

American Law Institute Pulls the Plug on Affirmative Consent

WASHINGTON / May 23, 2016 – By a resounding margin, members of the American Law Institute voted down a controversial “affirmative consent” standard being considered for the group’s proposed Model Penal Code for Sexual Assault. Instead, the ALI membership approved a definition proposed by attorney Margaret Love that states, “’Consent’ means a person’s willingness to engage in a specific act of sexual penetration or sexual contact. Consent may be expressed or it may be inferred from behavior, including words and conduct—both action and inaction—in the context of all the circumstances.” (1)

The historic vote took place at the ALI annual conference on May 17 in Washington, DC. After two hours of at times acrimonious debate, approximately four-fifths of the 500 members present voted to remove the affirmative consent language (2). Leading judges, law professors, and practicing attorneys comprise the membership of ALI, which develops model laws for adoption at the state level.

The National Association of Criminal Defense Lawyers had sharply criticized the proposed affirmative consent policy, charging the ALI draft used “the bludgeon of criminal sanctions to impose the new and yet untested concept of ‘affirmative consent’ upon society.” (3)

The affirmative consent standard has been struck down in two state-level decisions, as well.

In August, Judge Carol McCoy ruled the University of Tennessee-Chattanooga’s affirmative consent policy “erroneously shifted the burden of proof” to the defendant. The administrative judge noted that “requiring the accused to affirmatively provide consent… is flawed and untenable if due process is to be afforded to the accused.” (4)

Last month the Massachusetts District Court ruled against the Brandeis University affirmative consent policy, saying “it is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.” (5)

Decrying the rigidity and intrusiveness of the affirmative consent approach, Newsday columnist Cathy Young asks, “While there’s still time, we should stop and ask just how much government we really want in the bedroom.” (6) More information about affirmative consent can be found on the SAVE website (7).

(1) https://www.ali.org/media/filer_public/19/a4/19a45dd8-da30-44d5-a4a1-5bb3992a3521/mpcsa-language-52016.pdf
(2) http://www.washingtonexaminer.com/a-mess-law-group-rejects-affirmative-consent/article/2591692
(3) http://www.prosecutorintegrity.org/wp-content/uploads/2016/03/NACDL-Comments-Draft-6-MPC-Sexual-Assault.pdf
(4) https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf
(5) https://kcjohnson.files.wordpress.com/2013/08/brandeis-decision.pdf
(6) http://www.newsday.com/opinion/columnists/cathy-young/the-risks-of-affirmative-consent-1.11819583
(7) http://www.saveservices.org/sexual-assault/affirmative-consent/

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Civil Rights

PR: Title IX Over-Reach: Leading Law Professors Issue Call to Rein in Federal Office for Civil Rights

Post author By saveadmin
Post date May 16, 2016

Contact: Chris Perry

Email: cperry@saveservices.org

Title IX Over-Reach: Leading Law Professors Issue Call to Rein in Federal Office for Civil Rights

WASHINGTON / May 16, 2016 – Professors from leading law schools have signed an Open Letter deploring the erosion of free speech and due process on campus. The Letter calls on the Department of Education’s Office for Civil Rights (OCR) to cease its unlawful practice of issuing binding policy directives that do not comply with review-and-comment requirements of the Administrative Procedure Act. The Open Letter is believed to be the first time that professors from numerous law schools, as a group, have publicly chastised the federal Office for Civil Rights.

The co-signers include faculty members from Harvard Law School, Stanford University, University of Pennsylvania, George Washington University, University of Wisconsin, New York University, University of Miami, Touro Law School, University of San Diego, and other schools.

The Open Letter traces the evolution of the OCR policy directives that purport to interpret Title IX, the federal law that was enacted in 1972 to bar sex discrimination in schools. The OCR mandates have had the effect of broadening, weakening, and eventually negating the Supreme Court’s definition of sexual harassment. In Davis v. Monroe, the High Court defined sexual harassment in schools as conduct that is “severe, pervasive, and objectively offensive.” Over the course of time, the OCR has expanded that pivotal definition to encompass conduct that is severe, pervasive, OR subjectively offensive.

In a 2013 ruling, the OCR mandated that the University of Montana change its definition of sexual harassment to include “any unwelcome conduct of a sexual nature,” including verbal comments. This has had the effect of pressuring universities to establish speech codes and free-speech zones. The Open Letter also recounts the effects of OCR policy mandates on due process protections for students accused of sexual assault.

The professors’ statement makes recommendations to clarify the legal status of OCR directives, reinvigorate free speech, and restore due process.

“The federal Office for Civil Rights has ignored constitutional law, judicial precedent, and Administrative Procedure Act requirements by issuing numerous directives, and then enforcing these directives by means of onerous investigations and accompanying threats to withhold federal funding. The OCR has brazenly nullified the Supreme Court definition of campus sexual harassment,” the professors warn. “These unlawful actions have led to pervasive and severe infringements of free speech rights and due process protections at colleges and universities across the country.”

The Open Letter can be viewed here: http://www.saveservices.org/wp-content/uploads/Law-Professor-Open-Letter-May-16-2016.pdf The Letter remains open for additional co-signers.

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Office for Civil Rights Sexual Assault

PR: Book Warns of ‘New Totalitarianism’ on Campus, Links Problem to 2011 Federal Mandate

Post author By saveadmin
Post date May 9, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Book Warns of ‘New Totalitarianism’ on Campus, Links Problem to 2011 Federal Mandate

WASHINGTON / May 9, 2016 – A provocative new book spotlights the dramatic erosion of free speech and due process rights on college campuses, and pins much of the problem on the federal Office for Civil Rights. Rape Culture Hysteria: Fixing the Damage Done to Men and Women calls on lawmakers to take determined measures to restore democratic ideals and constitutional protections to universities.

Written by social commentator Wendy McElroy, Rape Culture Hysteria examines the factual basis of “rape culture” and concludes it is “not a real crisis but a manufactured one.” The book portrays Rolling Stone magazine’s report of an alleged gang-rape at the University of Virginia as emblematic of the hysteria. Even though the magazine account was quickly exposed as a fraud, rape culture proponents continued to insist that university investigators should “always believe the victim.”

Much of the problem can be traced to the Department of Education’s Office for Civil Rights (OCR), which issued a Dear Colleague Letter on campus sexual violence in 2011. The policy required colleges to eliminate many due process protections in their handling of sexual assault allegations. As a result, the “treatment of accused males on campus has worsened dramatically,” McElroy posits.

McElroy charges the 2011 Dear Colleague Letter and other “government policies are instrumental in turning American universities into bankrupt social experiments.” As a result, a new “high-paid, careerist professional caste” of college administrators has been created, she writes.

The book identifies a number of solutions, including reducing the OCR budget, treating sexual violence as a “criminal matter by turning accusations over to the police,” and devolving educational authority to the states.

“Political correctness is the new totalitarianism,” McElroy concludes. More information on the book can be seen here: http://www.amazon.com/dp/B01EENF4HW/ref=tsm_1_fb_lk

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Sexual Assault

PR: ‘Something is going seriously wrong’: Colleges Grapple with Wave of Sexual Assault Lawsuits

Post author By saveadmin
Post date April 18, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

‘Something is going seriously wrong’: Colleges Grapple with Wave of Sexual Assault Lawsuits

WASHINGTON / April 18, 2016 – Following a recent California ruling in favor of a student accused of sexual misconduct, state lawmakers and college administrators are beginning to consider the budgetary implications of these claims. On April 5 the California Second Appellate District Superior Court overturned a University of Southern California decision that found a male student responsible because he allegedly “encouraged or permitted” other students to slap a female student on her buttocks. The Superior Court explained, “it is not too heavy a burden to require that students facing disciplinary action be informed of the factual basis for the charges against them.” (1)

The University of Southern California decision is the eighth ruling in 2016 in which a court found in favor of a student accused of sexual assault, or allowed the case to proceed because the pleadings were sufficient to state a cause of action. (2)

The growing number of rulings in favor of accused students was the focus of a recent Inside Higher Ed article. (3) The account quoted Gary Pavela, editor of the the Association of Student Conduct Administration’s Law and Policy’s Report, as saying, “In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases….Something is going seriously wrong.”

These lawsuits represent a growing financial burden for colleges. According to Brett Sokolow of the Association of Title IX Administrators, responding to a due process lawsuit “can run into the high six or even seven figures, not counting a settlement or verdict.” (4) In February, the University of Montana agreed to pay a former student $245,000 because of the university’s biased adjudication of a sexual assault allegation. (5)

Risk management efforts to forestall these lawsuits are becoming increasingly costly, as well. Salaries for Title IX coordinators can range from $50,000 to $150,000 a year. Sokolow estimates the cost of lawyers, counselors, and educational campaigns run from $50,000 a year at small colleges, to half a million dollars and more at large universities.

Harvard University now employs 50 Title IX coordinators across its 13 schools. At Yale, nearly 30 faculty members and staff are involved in its Title IX programs. Columbia University now has a Title IX staff consisting of 11 educators and 7 case workers, and covers the legal expenses of both accusers and the accused.

The American Council of Trustees and Alumni recently issued a statement sharply critical of the U.S. Department of Education for issuing directives that have “unconscionably conflated ‘conduct and speech cases’ in a way that has grossly expanded the intrusion of this unaccountable bureaucracy at the expense of faculty and student constitutional rights.” The Council warned, “It’s time that institutions—and their boards—fought back.” (6)

(1) http://www.courts.ca.gov/opinions/documents/B262917.PDF

(2) http://www.saveservices.org/sexual-assault/affirmative-consent/court-decisions/

(3) https://www.insidehighered.com/news/2016/04/14/several-students-win-recent-lawsuits-against-colleges-punished-them-sexual-assault

(4) http://www.nytimes.com/2016/03/30/us/colleges-beef-up-bureaucracies-to-deal-with-sexual-misconduct.html?_r=0

(5) http://www.foxsports.com/college-football/story/university-of-montana-to-pay-ex-qb-jordan-johnson-245k-over-handling-of-rape-accusation-021616

(6) http://www.goacta.org/news/acta_praises_aaup_report_the_history_uses_and_abuses_of_title_ix_outlines_l

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Due Process

PR: Judge Issues Scathing Decision Against Brandeis U.; Ruling is Latest in String of Cases Favoring Due Process

Post author By saveadmin
Post date April 5, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Judge Issues Scathing Decision Against Brandeis U.; Ruling is Latest in String of Cases Favoring Due Process

WASHINGTON / April 5, 2016 – The Massachusetts District Court has issued a strongly worded decision, ruling in favor of a student accused of sexual misconduct. The case is the most recent is a series of legal rulings supporting the need for stronger due process measures in campus sexual misconduct cases.

The case involved a same-sex relationship between two male students attending Brandeis University in Massachusetts. Following a 21-month long romantic relationship, John Doe was accused of “numerous inappropriate nonconsensual sexual interactions.” (1) The college proceeding led to a disciplinary warning and permanent notation in his educational record stating Doe had committed “serious sexual transgressions.” Doe filed a lawsuit alleging breach of contract, defamation, and other violations.

Writing on behalf of the District Court, Judge Dennis Saylor highlighted the basic unfairness of the University engaging an experienced attorney, while it expected “a student, approximately 21 years old, with no legal training or background, to defend himself, alone.”

The Court chided the university for its description of the accuser as a “victim,” noting, “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

Judge Saylor was especially critical of the university investigator’s finding that Doe had violated the university’s affirmative consent policy because “it is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.”

The judge also questioned the University’s use of a preponderance of evidence standard of proof, which he viewed “as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.” The District Court concluded, “Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

The Brandeis decision is the most recent in a series of rulings that favor stronger due process protections for accused students at Appalachian State University, Brown University, University of California-Davis, University of California-San Diego, Cornell University, George Mason University, University of Michigan, Middlebury College, Pennsylvania State University, Salisbury University, University of Southern California, University of Tennessee-Chattanooga, and Washington and Lee University. (2)

(1) https://kcjohnson.files.wordpress.com/2013/08/brandeis-decision.pdf

(2) http://www.saveservices.org/sexual-assault/court-decisions/

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Affirmative Consent Campus Sexual Assault

PR: Affirmative Consent for Sex Gets ‘Thumbs-Down’ from Lawmakers, Legal Defense Group, and Harvard Professors

Post author By saveadmin
Post date March 28, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Affirmative Consent for Sex Gets ‘Thumbs-Down’ from Lawmakers, Legal Defense Group, and Harvard Professors

WASHINGTON / March 28, 2016 – Polices designed to require explicit and ongoing agreement, often referred to as “affirmative consent,” experienced three setbacks during the past week. These developments signal broader concerns about the effectiveness, workability, and constitutionality of these policies, sometimes referred to as “yes means yes.”

Last Monday, members of the Maryland House Judiciary Committee declined to take a vote on HB 1142, a bill that would have required students at all Maryland colleges to give their “ongoing,” “clear, unambiguous, knowing, informed, and voluntary” agreement before engaging in sexual activities. Monday was the deadline for Maryland Delegates to approve a bill in order for it to advance to the Senate. Since no vote was taken, the affirmative consent bill is now considered “dead.” (1)

On March 22, the National Association of Criminal Defense Lawyers (NACDL) released a position paper on a proposed rewrite of criminal sexual assault laws. The Preliminary Draft, currently being considered by the American Law Institute (ALI), would make the absence of affirmative consent a key element in determining whether a sexual offense had occurred. (2)

The NACDL document takes sharp issue with the ALI proposal, saying the proposed affirmative consent standard would “shift the burden of proof to the accused,” a change the NACDL views as unconstitutional. The Preliminary Draft, according to the NACDL, would “use the bludgeon of criminal sanctions to impose the new and yet untested concept of ‘affirmative consent’ upon society.”

Highlighting the difficulty of laying out a precise definition of affirmative consent, the NACDL notes, “No person should face prosecution, conviction and imprisonment based upon a vague and ambiguous law.” The NACDL concludes, “In a utopian society, transparent and free flowing communication about sexual activity would be a beneficial goal, but we are hardly a utopian society.”

Thirdly, Harvard University professors Jacob Gersen and Jeannie Suk released a scholarly article titled The Sex Bureaucracy. The paper posits that ever-expanding definitions of affirmative consent have led to the current untenable situation in which “conduct classified as illegal by the sex bureaucracy…plausibly covers almost all sex students are having today.” (3)

More information about affirmative consent is available on the SAVE website. (4)

(1) http://mgaleg.maryland.gov/webmga/frmMain.aspx?stab=01&pid=billpage&tab=subject3&ys=2016rs&id=HB1142

(2) http://www.prosecutorintegrity.org/wp-content/uploads/2016/03/NACDL-Comments-Draft-6-MPC-Sexual-Assault.pdf

(3) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2750143

(4) http://www.saveservices.org/sexual-assault/affirmative-consent/

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Office for Civil Rights Press Release Sexual Assault

PR: Lawmakers Double-Down on Campus Due Process Abuses

Post author By saveadmin
Post date March 14, 2016

Contact: Gina Lauterio

Telephone: 301-801-0608

Email: glauterio@saveservices.org

Lawmakers Double-Down on Campus Due Process Abuses

WASHINGTON / March 14, 2016 – In an effort to restore due process rights on campuses, state and federal lawmakers have taken determined steps in recent weeks to press college administrators and a federal oversight agency to uphold constitutionally based rights for students accused of sexual assault.

In the most dramatic development, Georgia Rep. Earl Ehrhart, chairman of the House appropriations committee, disapproved a $47 million funding request for Georgia Tech University over due process concerns for accused students.

Ehrhart then called out the Georgia Tech administrators. “The president and the administration are just clueless when it comes to due process on that campus and protecting all those kids. If I have to talk to another brokenhearted mother about their fine son where any allegation is a conviction and they toss these kids out of school after three and a half years, sometimes just before graduation, it’s just tragic,” Ehrhart charged (1).

At the federal level, criticisms were voiced during the course of two hearings in which Department of Education secretary-designate John King provided testimony.

At an Appropriations Committee hearing this past Thursday, Sen. Lamar Alexander of Tennessee repeatedly confronted King with the fact that his department was threatening colleges with loss of federal funding if they did not comply with a 2011 “guidance” document (2).

During a previous hearing of the House Committee on Education and the Workforce, Rep. Virginia Foxx of North Carolina voiced concerns that the Department of Education has issued sexual assault directives with “potential negative impact on students and institutions.” She then requested that King provide written answers to nine questions about the department’s policy-making procedures (3).

On March 4, James Lankford of Oklahoma, chairman of the Committee on Homeland Security and Governmental Affairs, sent a strongly worded letter to the John King. The letter charged, “OCR’s silence on important due process considerations, coupled with the requirement of a lower standard of proof, indisputably tips the playing field against the accused, making the disciplinary process anything but ‘equitable.’” (4)

More information about executive over-reach by the federal Office for Civil Rights can be found on the SAVE website (5).

(1) http://politics.blog.ajc.com/2016/03/07/powerful-state-lawmaker-calls-for-georgia-tech-presidents-ouster/

(2) http://www.washingtonexaminer.com/senator-grills-acting-education-secretary-over-agency-overreach/article/2585472#.VuIfEXFPqD0.facebook

(3) http://www.washingtonexaminer.com/gop-congresswoman-questions-ed.-dept.-nominee-on-campus-sexual-assault/article/2584078

(4) https://onedrive.live.com/redir?resid=A56B7CAF8A43C485!16667&authkey=!AA5bfF-DWgQ-dZg&ithint=file%2cpdf

(5) http://www.saveservices.org/sexual-assault/ocr/

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Due Process Sexual Assault

PR: Free Speech and Due Process Violations on Campus Give Rise to Budget Cutbacks, Costly Lawsuits

Post author By saveadmin
Post date March 1, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Free Speech and Due Process Violations on Campus Give Rise to Budget Cutbacks, Costly Lawsuits

WASHINGTON / March 1, 2016 – A growing number of budget cutbacks and lawsuits across the nation reveals colleges that fail to respect free speech and due process rights may incur substantial financial liabilities. SAVE urges administrators and lawmakers to work cooperatively to restore the constitutionally based rights of students and faculty members on campus.

Regarding free speech, state lawmakers in Missouri recently announced they plan to reduce funding for the University of Missouri by $8 million. State House and Senate members singled out the actions of professor Melissa Click who was recorded interfering with students’ exercise of free speech rights (1).

University of Missouri trustees were also informed that the university system expects to lose $20-25 million in tuition revenues this year. Last month Standard & Poor’s lowered the system’s credit rating, citing a severe drop in new student enrollments (2).

Last July Valdosta State University in Georgia settled a First Amendment lawsuit, agreeing to pay $900,000 to former student Hayden Barnes who had been expelled due to his protests over planned construction of two parking garages (3).

Due process violations are proving to be costly, as well.

In Georgia, Rep. Earl Ehrhart warned Georgia Tech president GP Peterson on January 26 that he wouldn’t consider Tech’s budget request until the college adopted “simple, basic due process protections.” The following week, Georgia Tech withdrew its request for state bond funds for building renovations (4).

Lawsuits filed by students accused of or expelled on allegations of sexual assault have become more prevalent. At the University of Montana, administrators just agreed to pay $245,000 to former quarterback Jordan Johnson for the college’s “misconduct” in investigating a 2012 rape allegation (5).

Last week the Rhode Island District Court refused to dismiss a complaint filed by a male student who had been suspended from Brown University, citing breach of contract and a pattern of sex discrimination against male students (6).

Last month two men announced they were suing the University of Texas to prevent sanctions from being imposed on them. They charged the school is using them as scapegoats to build a reputation for being tough on sexual assault (7).

Over 100 due process lawsuits have been filed against colleges and universities across the country (8).

(1) http://www.stltoday.com/news/local/govt-and-politics/um-system-could-see-m-cut-under-mo-house-s/article_14d95137-311b-5d27-ade9-d9a5275c9768.html

(2) http://www.columbiamissourian.com/news/state_news/university-of-missouri-system-s-credit-outlook-is-lowered/article_3d6e872a-10b8-5285-b568-62cdb5afd4f9.html

(3) http://www.ajc.com/news/news/local-education/valdosta-state-to-pay-900k-to-settle-students-civi/nm5sy/

(4) http://www.news.gatech.edu/2016/02/04/tech-withdraws-library-budget-request

(5) http://www.msn.com/en-us/sports/ncaafb/montana-to-pay-ex-qb-dollar245k-over-rape-investigation/ar-BBpB2l4?ocid=st

(6) http://www.saveservices.org/wp-content/uploads/Doe-v.-Brown-University-2016.pdf

(7) http://www.mystatesman.com/news/news/crime-law/men-accuse-ut-of-unfairly-punishing-them-for-sex-a/nqQcf/

(8) https://boysmeneducation.knackhq.com/due-process-lawsuits

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Free Speech Sexual Assault

PR: Lawmakers Push Back to Restore Free Speech and Due Process on Campus

Post author By saveadmin
Post date February 16, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Lawmakers Push Back to Restore Free Speech and Due Process on Campus

WASHINGTON / February 16, 2016 – In the face of continuing pressures by campus activists, lawmakers across the country are taking steps to restore constitutionally based rights to free speech and due process. SAVE applauds these efforts to bring democratic ideals back to college campuses.

Regarding free speech, Arizona State Rep. Anthony Kern introduced a bill last week that would prohibit colleges from designating any area of campus as a free speech zone (1). In Missouri, Rep. Dean Dohrman introduced a bill last month that would require students to take a class on free speech in order to graduate (2).

Last summer the U.S. House of Representatives convened a hearing on First Amendment Protections on Public College and University Campuses (3). In January the National Association of Scholars issued a wide-ranging statement on intellectual freedom and free speech (4).

Lawmakers have expressed concerns about the lack of due process in sexual assault cases, as well.

On January 26, Georgia Rep. Earl Ehrhart, chairman of the Appropriations subcommittee on Higher Education, held a hearing that probed the lack of due process on campuses. Ehrhart warned he wouldn’t talk to college presidents about budget requests until they adopt “simple, basic due process protections.” (5)

Lack of legal representation is another due process shortcoming, and right-to-counsel laws for students accused of sexual assault have now been enacted in North Carolina, Arkansas, and North Dakota (6).

Nationally, two senators have voiced concerns about deficiencies in due process protections.

Sen. Marco Rubio (R-FL) has highlighted the problem of false allegations: “One need only review recent news reports to know that false allegations do, in fact, happen. Certainly, we should make additional efforts to protect due process on campus.” (7)

Referring to the proposed Campus Accountability and Safety Act, Sen. Mark Warner (D-VA) commented, “I do believe you do need, for the accused, you need to maintain due process rights.… I think this part of the legislation will probably require some additional review.”

Last Tuesday Milo Yiannopoulos spoke at Rutgers University-New Brunswick about the need for free speech on campus. In response, protesters threw blood-colored paint on themselves, vandalized the building where Yiannopoulos spoke, and repeatedly interrupted his speech (8).

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Affirmative Consent

PR: On the Heels of Judicial Reversal, Law Professors Assail Affirmative Consent

Post author By saveadmin
Post date February 8, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

On the Heels of Judicial Reversal, Law Professors Assail Affirmative Consent

WASHINGTON / February 8, 2016 – Following a landmark legal decision last summer, law professors across the country are criticizing affirmative consent policies as ineffective, unfair to defendants, and harmful to women. SAVE calls on lawmakers to focus on proven rape control strategies such as enhancing campus security measures, reducing alcohol-related assaults, and involving criminal justice authorities.

On August 4, 2015, judge Carol McCoy overturned a decision of the University of Tennessee at Chattanooga to expel a student on allegations of sexual assault. McCoy ruled the university’s affirmative consent standard “improperly shifted the burden of proof” because the “ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” (1)

Following the judicial reversal, legal experts began to express a range of concerns with the standard, including the policy’s unworkability, lack of effectiveness, curtailment of due process rights, wrongful convictions, constitutional problems, and broader social effects.

John F. Banzhaf, professor at George Washington University Law School, explains the affirmative consent standard “is not logical — nobody really works that way.” (2)

University of Kansas law professor Corey Yung worries that affirmative consent policies are ineffective “because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative.” (3)

Nadine Strossen, faculty member at the New York Law School and former president of the ACLU, notes: “These affirmative-consent rules violate rights of due process and privacy…Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.” (4)

Tamara Rice Lave of the University of Miami School of Law reinforces concerns about shifting the burden of proof to the defendant: “But with affirmative consent, the accused must put on evidence.” (5)

Alan Dershowitz, Emeritus Professor at Harvard Law School, explains that “Requiring the accused to demonstrate that affirmative consent was obtained, which is often difficult to prove,” would result in an “unacceptable” number of wrongful convictions. (6)

Baruch College law professor Jay Weiser highlights the constitutional problems: “The new affirmative-consent rules run afoul of many constitutional principles” because they are “vague and overbroad” and “amount to government-compelled speech.” (7)

Harvard Law School faculty member Janet Halley reflects on the broader social effects of affirmative consent policies that would “foster a new randomly applied moral order that will often be intensely repressive and sex-negative…They will install traditional social norms of male responsibility and female helplessness.” (8)

Referring to a proposal being considered by the American Law Institute, San Diego law professor Kevin Cole writes that the draft’s overly broad affirmative consent provisions would determine “the legality of every sex act between individuals who are not in an intimate, cohabiting relationship” and “will pose dangers to [women] whose protests are genuine.” (9)

University of Pennsylvania law professor Paul Robinson argues, “The most promising path to changing the culture of sexual consent on college campuses is to adopt and regularly reaffirm ‘yes means yes’ as the rule of proper conduct, but to reject it as the principle of adjudication.” (10)

The Foundation for Individual Rights in Education (FIRE) summarizes the legal pitfalls with affirmative consent, concluding, “Expanding the definition of an offense so broadly that it encompasses truly innocent people in an attempt to secure more guilty findings is unacceptable.” (11)

This week marks the two-year anniversary of the introduction of an affirmative consent bill in California. On February 10, 2014, Kevin de León introduced SB 967, which mandated the “yes-means-yes” standard for all California colleges. Seven months later Gov. Jerry Brown signed the controversial bill into law.

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org