Category: Sexual Assault

Contact: Gina Lauterio

Email: info@saveservices.org

Law Professors Voice Concerns Over ‘Affirmative Consent’ Policies for Sex

WASHINGTON / September 9, 2015 – A growing number of legal scholars are expressing concerns over affirmative consent policies that some universities are considering for implementation. The concerns follow recent passage of laws in California and New York mandating such policies on college campuses.

This past week, Tamara Rice Lave of the University of Miami law school wrote on her blog, “I have a problem with legally requiring affirmative consent. I don’t see how making a person prove that her partner consented doesn’t switch the burden of proof to the accused…I find this trend to be extremely troubling.” http://prawfsblawg.blogs.com/prawfsblawg/2015/09/affirmative-consent-and-switching-the-burden-of-proof.html

Nadine Strossen, former president of the American Civil Liberties Union and current professor at New York Law School, recently noted, “These affirmative consent rules violate rights of due process and privacy. They reverse the usual presumption of innocence. Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.”  http://news.hamlethub.com/ridgefield/events/48981-former-aclu-president-nadine-strossen-will-be-the-keynote-speaker-at-wcsu-s-constitution-day

Professor Corey Yung at the University of Kansas worries that affirmative consent policies are ineffective and may turn out to be harmful to victims: “because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative.” http://concurringopinions.com/archives/2014/10/californias-college-rape-rule-is-probably-a-bad-idea-but-not-for-the-reasons-the-critics-say.html

In his law review article, Touro Law School professor Richard Klein undertook a detailed analysis of state rape statutes and concluded, “Instead of the historical requirement that the state prove each element of the offense – and lack of consent is the crucial element – it may well now be the case that the defendant must prove that there was consent by a preponderance of the evidence.” http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1075&context=scholarlyworks

On August 4, 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 “improperly shifted the burden of proof…Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf

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

Contact: Gina Lauterio

Email: info@saveservices.org

Four Rulings, Four Reversals: Judges Give ‘Thumbs Down’ on Campus Sex
Tribunals

WASHINGTON / August 25, 2015 – In four recent cases, judges have overturned sexual assault findings by campus disciplinary committees. In each case, the judges ruled the college proceedings lacked necessary due process protections. As the new academic year begins, these judicial decisions highlight the need for renewed focus on fairness in college sex assault cases, SAVE says.

In the most recent case, federal judge Norman Moon ruled that Washington and Lee University created a climate of gender discrimination that served to “railroad” students who are wrongly accused of sexual assault. The judge concluded the university’s bare-bones adjudication process “plausibly support a Title IX claim” by the plaintiff. See Doe v. Washington & Lee Univ.: https://d28htnjz2elwuj.cloudfront.net/wp-content/uploads/2015/08/06171146/Opinion-on-MTD.pdf

In a landmark case, Judge Carol McCoy ruled that the affirmative consent standard used by the University of Tennessee-Chattanooga was unfair because the rule “erroneously shifted the burden of proof” to the defendant, robbing the student of his due process rights. McCoy noted that “requiring the accused to affirmatively provide consent… is flawed and untenable if due process is to be afforded to the accused.” https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf

In mid-August, Los Angeles Superior Court Judge Robert H. O’Brien barred the University of Southern California from expelling Bryce Dixon, a football player who was expelled on an allegation of sexual assault. The judge found that that the university’s sexual assault adjudication process was fundamentally unfair to accused students: http://reason.com/blog/2015/08/13/judge-stops-usc-from-expelling-football

And in July, Superior Court Judge Joel Pressman overturned a decision to suspend a University of California-San Diego student based on an allegation that consent for sex had not been obtained. Concluding “the hearing against petitioner was unfair,” Judge Pressman found serious procedural flaws in the university’s handling of the case: http://documents.latimes.com/uc-san-diego-sex-assault-case-ruling-doe-vs-regents-uc-san-diego/

“The presumption of innocence and due process lie at the very heart of notions of fairness and justice,” notes SAVE spokesperson Sheryle Hutter. “Universities that flaunt these standards can expect to become the focus of judicial scrutiny.”

Lack of due process could be harmful to victims, as well. In a recent editorial, columnist Ashe Schow highlighted the fact that faulty campus procedures “could also mean an actual rapist would be able to use the legitimate justice system to have his expulsion overturned.” http://www.washingtonexaminer.com/lack-of-campus-due-process-could-one-day-help-an-actual-rapist/article/2570559

SAVE recommends that colleges forward allegations of sexual assault to local police for investigation and possible prosecution.

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

Contact: Gina Lauterio

Email: info@saveservices.org

Sexual Assault Ruling at UCSD Could Ripple Across U.S.

WASHINGTON / July 23, 2015 – A recent judicial ruling in favor of a California student accused of sexual assault could have an impact on colleges and universities across the country. The ruling could have “tremendous pervasive influence on other courts,” according to University of Pennsylvania professor Amy Wax.

The ruling involved two University of California–San Diego students who met at a party and later engaged in two sexual encounters. The complainant admitted the second encounter was consensual, but claimed the first was not.

In his decision, Superior Court Judge Joel Pressman concluded, “Ms. Roe admitted that she voluntarily continued consensual sexual activity with Mr. Doe later that very same day…The sequence of events do not demonstrate non-consensual behavior.”

Concluding “the hearing against petitioner was unfair,” Judge Pressman also found serious procedural flaws in the university’s handling of the case. First, the campus tribunal allowed “only nine of [the accused’s] thirty-two questions” to be posed to the woman. Second, the complainant was “placed behind a barrier during the proceedings” which tended to remove the presumption of innocence. Third, an appeal of the campus committee’s decision resulted in the imposition of even stronger sanctions, an action the judge deemed to be unfairly “punitive.”

“Campus sexual assault is a serious problem that calls for a criminal justice response,” notes SAVE spokesperson Sheryle Hutter. “Reducing sexual assault to a dispute over nuanced interpretations of sexual consent does a profound disservice to victims of a violent sexual attack.”

Judge Pressman’s ruling can be read here: http://documents.latimes.com/uc-san-diego-sex-assault-case-ruling-doe-vs-regents-uc-san-diego/

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

Contact: Gina Lauterio

Email: info@saveservices.org

Affirmative Consent Policies Eliminate the Presumption of Innocence, Critics Charge

WASHINGTON / July 14, 2015 – Following recent passage of a law in New York on campus sexual assault, Affirmative Consent policies are coming under fire from civil rights and legal experts. The New York law will require that “clear affirmative agreement” be expressed before any sexual activity occurs between two students.

Robert Shibley of the Foundation for Individual Rights in Education, a civil liberties group, notes that Affirmative Consent policies serve to promote a “guilty until proven innocent” mindset.

In her June 27 column, New York Times contributing writer Judith Shulevitz decried the notion of making “sex a crime under conditions of poor communication.” Her article quoted Harvard law professor Jeannie Suk who chided Affirmative consent as an “unworkable standard.”

In her July 1 column, ‘Affirmative Consent’ Will Make Rape Laws Worse, Megan McArdle charges Affirmative Consent will make it more difficult to prosecute an offender because predators can “always insist they got that affirmative consent.

Fox News anchor Megyn Kelly openly ridiculed the New York law in her July 9 broadcast: “But it has gotten to the point of ridiculousness. Verbal consent, every step of the way?” Kelly also deplored how Affirmative Consent policies “almost entirely eliminate the rights of men.

The Community of the Wrongly Accused website noted that a determination of consent cannot be based on the after-the-fact feelings of the accuser. “Such a standard not only is grossly unjust and unconstitutional, it doesn’t work,” the July 8 editorial notes

Constitutional attorney Hans Bader has warned of persons who use affirmative consent to “seek even more power over people’s private lives.

“‘No-means-no’ has long been the accepted standard for sexual consent,” notes SAVE spokesperson Sheryle Hutter. “But now campus zealots are trying to destroy basic notions of fairness in a rush to outlaw 99% of sex acts.”

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

Contact: Gina Lauterio

Email: info@saveservices.org

Revelations of Campus ‘Inquisition’ Stir Outrage

WASHINGTON / June 2, 2015 – A recent article by a Northwestern University professor about flawed campus sexual assault policies has triggered sharp criticism and calls for reform. Professor Laura Kipnis detailed how campus policies designed to address sexual assault have deprived the accused of their due process rights. Titled “My Title IX Inquisition,” the editorial was published in the May 29 edition of the Chronicle of Higher Education.

Kipnis had published an article in February criticizing Title IX procedures, which she described as overly-intrusive and unfair. Title IX is the federal law that bans sex discrimination on college campuses.

Her article resulted in two student complaints alleging Title IX violations. Northwestern University investigators then refused to inform Kipnis of the exact nature of the allegations, denied her legal representation, and did not allow her to record conversations with investigators.

Over 10 critiques by liberal and conservative commentators have been published in the past week: http://taxprof.typepad.com/taxprof_blog/2015/06/my-title-ix-.html

Liberal-feminist site Jezebel charged, “Title IX has gone from a law designed to protect college students from sexual misconduct and discrimination to a means by which professors are put on trial for their tweets.” http://jezebel.com/feminist-students-protest-feminist-prof-for-writing-abo-1707714321

An Independent Women’s Forum essayist asked, “I don’t understand why Northwestern pursued this bogus ‘retaliatory behavior’ complaint in the first place.” http://www.iwf.org/blog/2797302/Laura-Kipnis-Gets-Cleared–Just-Barely–in-Title-IX-Investigation-of-Her-Supposed-Sexual-Harassment#sthash.JnC3jmGP.dpuf

“Thanks to the Department of Education policies, even the most absurd accusations can now result in a full-bore investigation,” notes SAVE spokesperson Sheryle Hutter. “Lawmakers need to act now to restore due process on campus and bring an end to policies that micro-manage the most intimate sexual activities.”

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

Contact: Gina Lauterio

Email: info@saveservices.org

New UVA Sex Policy Is ‘Illogical and Hysterical,’ Will Do Nothing to Stop Rape, SAVE Charges

WASHINGTON / April 27, 2015 – The University of Virginia (UVA) has adopted a new Interim Policy on sexual misconduct that dramatically expands the definition of sexual misconduct to include any type of sexual contact. The policy also imposes an “affirmative consent” requirement, warning that “Relying solely on non-verbal communication before or during sexual activity… may result in a violation of this Policy.” SAVE believes the policy will do nothing to deter forcible rape, and is likely to serve to trivialize the problem.

According to the new policy, any intentional touching of intimate body areas, whether clothed or unclothed, must be preceded by specific words or actions indicating consent. Under this definition, a simple hug or close dancing could be construed as sexual assault punishable by expulsion, SAVE notes.

Constitutional scholar Hans Bader has criticized the new UVA policy as “an outrageous violation of students’ privacy rights.” http://libertyunyielding.com/2015/04/09/hugs-are-now-sexual-assault-at-the-university-of-virginia/

SAVE highlights the fact that the new policy likely would not have helped to prevent the recent rape of Hannah Graham. The former UVA student was abducted on September 13, 2014. One month later, human remains believed to have come from her body were found at an rural location.

The murder suspect, Jesse Matthew, had been accused of sexual assault at two separate Virginia colleges he had attended as a student. But a criminal case was not brought against the man in either incident.

“The new UVA policy represents a response to the so-called campus ‘rape-culture’ that is illogical and hysterical,” notes SAVE spokesperson Sheryl Hutter. “University of Virginia administrators should be working to involve local law enforcement in these cases, not mandating an illusory affirmative consent standard,.”

Relevant excerpts of the UVA policy can be seen in the attachment to this press release. The entire policy can be viewed here: http://vpsa.virginia.edu/sites/vpsa.virginia.edu/files/Title%20IX%20VAWA%20Umbrella%20Policy.pdf

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