Back in February, FIRE expressed concerns about California’s Senate Bill 967, which attempts to address the issue of campus sexual assault by requiring colleges receiving state-funded student aid to implement an “affirmative consent” standard in their sexual assault policies. Yesterday, KPBS in San Diego shared FIRE Legislative and Policy Director Joe Cohn’s comments about why the bill will endanger due process for students accused of sexual assault, as well as statements from supporters of the bill that are worth discussing.
To review, SB 967 defines affirmative consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity” that is “ongoing throughout a sexual activity.” Supporters praise the bill for allowing an accused student to be found responsible for sexual assault in cases where the accuser didn’t say “yes,” but didn’t clearly say “no,” either. But as my colleague Samantha Harris pointed out in June, the bill goes further than that, requiring not just consent but continual reaffirmations of consent. How often must an initiator—presumably a male student, at least according to some victims’ rights advocates—ask for consent? That’s not clear. And how could an innocent student demonstrate he or she received affirmative consent? In response to this question, the bill’s co-author, Assemblywoman Bonnie Lowenthal, simply said, “Your guess is as good as mine.”
That’s not good enough. With this vague and potentially impossible-to-meet standard, the bill would effectively shift the burden of proof onto the accused student to show that he or she received ongoing consent throughout a sexual encounter. Joe spoke to KPBS about this problem:
Cohn says the university system should be based on the same principles as our justice system, where it’s up to the accuser to prove an offense took place.
“Whenever someone is accused of something as heinous as sexual assault, the onus has to be on the person making the accusation,” Cohn said. “As uncomfortable as that is, it’s fundamental to our system of justice.”
Cohn said if affirmative consent becomes a standard at university hearings, it flips the burden of proof onto the accused who now has to prove there was an OK to move forward.
In a case where there’s conflicting evidence, both parties were drinking and there are no witnesses, Cohn says it’s a problem.
“Unless the hearing board can show that the consent was offered, they’re now obligated to treat it as if it was nonconsensual,” Cohn said. “That shifts the process dramatically against an accused person.”
Jessica Pride, an attorney who represents alleged victims of sexual assault, supports this burden shift. KPBS reports:
“When the burden is on the victim to prove that they said ‘no’ or resisted, it’s almost victimizing the victim twice,” Pride said. “In this instance, now what’s going to happen is the culture is going to change, because the accused is going to have to prove that they got an affirmative ‘yes’ before proceeding.”
Pride said a university setting is not a criminal court of law, so the burden of proof doesn’t have to be on the accuser in the same way it is the courtroom.
Let’s not mince words; this is “guilty until proven innocent.”
Thanks in large part to the Department of Education’s Office for Civil Rights, most colleges and universities already employ a standard of evidence significantly lower than that used in criminal proceedings: Instead of being found guilty “beyond a reasonable doubt,” fact-finders must find only that the accused is more likely guilty than not under the “preponderance of the evidence” standard. That is, they must only be 50.01% certain that the accused is guilty in order to deem him or her responsible for the offense. (SB 967 would codify this unfair and legally flawed mandate.)
This low standard, combined with a lack of procedural safeguards for the accused, is already grossly inappropriate considering the high stakes—a guilty finding can derail a student’s educational career, brand him or her a rapist, and vastly change the course of his or her life. It is very troubling that Pride openly supports going even further by requiring accused students to prove that they received affirmative consent—and do it within the confines of a campus conduct system that rarely allows students to have legal counsel represent them and often does not even allow students to confront their accusers or see the evidence against them.
Unfortunately, Pride isn’t alone in her blatant disregard for any semblance of a fair hearing. Earlier this week, as part of The New York Times’s “Room for Debate” series on the nationwide problem of campus sexual assault—to which FIRE’s Samantha Harris expertly contributed—Holly Rider-Milkovich, the director of the Sexual Assault Prevention and Awareness Center at the University of Michigan, expressed ideas similar to Pride’s. Rider-Milkovich wrote that campus hearings are “the best places for sexual assault accountability” because they allow a finding of guilt even in cases where there are “no witnesses to the activity, little or no physical evidence, or if the victim has only partial recall of the events — a description that fits many of the reports we receive from students.” As several commenters on the article point out, Rider-Milkovich seems not to consider that, in some of those cases, it’s possible the evidence is lacking because no offense occurred.
Policies should not be crafted in order to ensure guilty verdicts even in the absence of evidence that the alleged offense occurred—they should be crafted to ensure accurate, fair, and reliable findings. Though no system will reach the truth 100 percent of the time, choosing a system because it facilitates a certain outcome regardless of whether the integrity of the process is compromised will ultimately be to the detriment of everyone involved. SB 967 is worrisome not just because of its content, but because of the reasoning employed by its supporters, who presume the guilt of the accused.
Check back to The Torch for updates on the bill.