With colleges and universities revising their sexual assault policies for the new academic year and legislation on the horizon that could have serious repercussions for campus due process, it is critically important for policymakers to stay committed to protecting the rights of all students. Advocates for due process are stepping up to ensure that as new rules for dealing with campus sexual assault are crafted, key legal principles are not forgotten.
To start, higher ed attorney and former college administrator Gary Pavela reminds readers of The Chronicle of Higher Education today that “‘[d]ue process’ is more than a procedural checklist”—it requires that fact-finders consider evidence and hear a case without bias, searching for the truth rather than seeking a particular outcome. This doesn’t benefit only students accused of university code violations but also the rest of the campus community, he argues, as it strengthens the integrity of the entire disciplinary system. Further, colleges and universities that fail to respect fundamental fairness may find themselves in trouble. Pavela writes:
A decision last month in King v. DePauw University, for example, is especially instructive. The federal judge in that case issued a preliminary injunction requiring the fall-2014 reinstatement, “without restriction,” of Benjamin King, a student suspended for sexual assault. The court … concluded he was “likely to succeed in demonstrating at trial that DePauw’s decision to find him liable for sexual misconduct … was reached in an illegal, arbitrary, or capricious manner.”
DePauw had created a Sexual Misconduct Hearing Board consisting of trained administrative staff members appointed by the assistant dean of students. The court challenged the board’s core finding that “it should have been apparent” to King that the accuser “was extremely intoxicated, to the point that she could not give consent” to sexual activity. “Quite frankly,” the judge wrote, “the Court sees very little evidence that supports this conclusion.”
The court also found it “problematic” that the investigation consisted almost exclusively of interviews of witnesses suggested by the accuser: “There was no attempt to use those interviews to ferret out other students who might have additional information.” This is precisely the kind of concern raised by accused students who assert that colleges are not evenhanded in investigating sexual-misconduct allegations.
If King’s allegations are true, his case demonstrates exactly the phenomenon Pavela warns of: fact-finders deciding cases without regard to what the evidence actually points to.
But advocates set on disciplining all of those facing accusations aren’t just ignoring facts. Lawyer, author, and member of FIRE’s Board of Advisors Wendy Kaminer argues that proponents of California’s “affirmative consent” bill are ignoring the reality of how sex normally works between two consenting adults. Responding to a New York Times article by Michael Kimmel and Gloria Steinem earlier this month, Kaminer explains that SB 967 requires more than a “yes” in order to establish consent to sex; it requires an ongoing interaction that most people simply won’t engage in during a consensual sexual encounter. Kaminer writes:
I wonder: Have Kimmel and Steinem abided by this rule themselves and requested, received and rendered ongoing affirmative consent throughout every one of their sexual encounters over the years? I doubt it, and I wonder, too, how any adult with a history of sexual activity can reconcile legal theories of explicit, ongoing affirmations with real life, human behavior.
The sheer infeasibility of a just say yes, over and over again, rule has been the subject of many appropriately scathing critiques. How will campus triers of fact determine whether an “explicit yes” was repeatedly rendered, satisfying the “ongoing” consent requirement? Critics point out, not entirely satirically, that students should tape their sexual encounters or obtain a series of signed consent forms as their activities progress.
Kaminer also predicts that SB 967 advocates won’t stop at requiring affirmative consent on college campuses:
Steinem and Kimmel, for example, insist that an ongoing “explicit yes” rule is “completely logical, and fully consistent with adjudicating other crimes.” Why, then, should it only apply to colleges and universities? And if we’re supposed to “believe the victim” on campus, why not believe her off campus, as well? Civil libertarians should take note: Assaults on the fundamental presumption of innocence and due process in rape cases that begin on campus are unlikely to end there.
Perhaps most alarmingly, though, Ohio State University (OSU) might have just made these questions moot with a consent policy that defies common sense. As Robby Soave reported for Reason last week, OSU recently reached a settlement agreement with the Department of Education’s Office for Civil Rights (OCR) detailing a number of changes OSU must make to its handling of sexual misconduct cases. Former OCR attorney Hans Bader caught this incredible provision of OSU’s policy:
Effective consent can be given by words or actions so long as the words or actions create a mutual understanding between both parties regarding the conditions of the sexual activity–ask, “do both of us understand and agree regarding the who, what, where, when, why, and how this sexual activity will take place?”
Sexual partners, of course, do not always agree on why they are having sex. Should that really negate otherwise valid consent? How clearly must each partner communicate their reasons for engaging in sexual activity? Is “yes, because” the new “yes”? That OSU has set forth this absurd standard is a stark illustration of how the movement to better protect students from sexual assault has led some institutions astray.
FIRE will continue to keep an eye out for insightful commentary on these issues.