The Underside of “Affirmative Consent”

October 19, 2014

By Masha Gershman at The American Interest

Two college students lie on a dorm room bed, there are soft whispers and light touching, but escalating passions are abruptly interrupted when one student hands the other a sexual consent form. The students’ lawyers, suddenly revealed to be sitting on either side of the bed, dive into heated negotiations over what sexual activities will and will not transpire that evening. That comical video was produced in 2004, but it may seem less absurd now than it did a decade ago.

California’s “Affirmative Consent” bill, signed into law by Gov. Jerry Brown last month, sets a new, strict framework for how college students can engage in sexual activity. According to the bill, it is the responsibility of all parties involved to seek either verbal or nonverbal consent. According to Jessica Pride, a sexual assault lawyer, verbal consent can be a simple yes, or an “uhuh.” Nonverbal can include nodding one’s head or removing one’s clothes. That’s a fairly standard understanding of consent. But the bill also requires that consent be ongoing, and specifies that it can be revoked at any time, marking a departure from traditional practice. Barring incapacitation or force, courts typically follow a “no means no” standard, meaning that if one person tries a sexual move that his partner doesn’t appreciate, it is the partner’s obligation to make that known. And then his immediate responsibility to stop.

“Affirmative consent requires that you get consent before you do something….So if one [partner] touches another, and the other person says ‘I’m not in the mood,’ they’ve already committed sexual assault,” says Joe Cohn, Legislative and Policy Director for the Foundation for Individual Rights in Education (FIRE). “If you don’t ask before you do the next thing, you’ve already violated the rule.” In other words, when two college students engage in sexual activity, any change within that activity—a change of position or rhythm for example, behavior that tends to progress naturally—must now first be granted permission. Otherwise, whoever initiated the change could technically face assault claims.

The bill also states that intoxication automatically prevents people from being able to grant consent, regardless if they do so verbally or otherwise. But the definition of intoxication is vague, and the way schools and individuals perceive it varies. Generally, it hinges on incapacitation, namely, whether or not an individual can appreciate what’s happening to him or her. According to Cohn, incapacitation can include if someone is “totally wasted, drugged against their will, hit on the head with a brick” or is underage. Pride defines the threshold as whether an individual can get behind the wheel of a car and drive. Elena Koukina, a graduate student at the University of California Berkeley, says that at a recent workshop, the line of intoxication was described as, “if that question even arises in your mind then they’re too drunk.”

Let’s not forget, however, that this law applies to colleges, where the reality is that a lot of students get drunk, and a lot of students have sex when they do. According to Pride, alcohol has been a factor in most of her cases. So if intoxication precludes the possibility of consent, and if the threshold of intoxication varies, then many students can potentially find themselves in dangerous territory. Supporters of the bill, like Sarah Green, Title IXofficer at Gonzaga University, believe that it eliminates ambiguity and serves to educate students about appropriate sexual interactions. “It opens the dialogue more and it gives a real framework for what appropriate sexual relationships should be. And you don’t get the ambiguous, ‘well, she didn’t say no so it was consent,’” Green says. Dianne Klein, Assistant Media Relations Director at the University of California Office of the President, says that the UC system adopted the affirmative consent standard before the bill was passed in order to “educate students and faculty and staff on their responsibilities. And [to] encourage survivors to report [what happened to them] because it provides clear definitions, and allows them to judge whether what happened to them was sexual assault.”

But it seems that the bill has the potential to generate much more confusion, and create many more problems than the ones it eliminates. Cynthia Garrett is an attorney who lobbied against the bill. According to her, the “revoked at any time” clause can be especially problematic: “This bill doesn’t require any protest, or a victim to say no. The consent has to be ongoing and can be revoked at any time. What if she revokes it in the middle of the act and doesn’t have to say anything—how is he supposed to know?” Most cases will be, like those of decades past, matters of “he said, she said.” What is new, however, is that the burden of proof will fall on the accused, usually a male student. It becomes his responsibility to demonstrate that he received consent, a nearly impossible feat, and without the right to the presumption of innocence afforded in criminal courts.

Here’s Hwhere the feds come in. When a claim is raised on college campuses, it will be handled by the procedure outlined in a 2011 edict issued by the Department of Justice’s Office of Civil Rights (OCR). It not only obligates universities to independently handle cases of sexual misconduct, but also prescribes how these investigations and deliberations must be run. Campus tribunals are expected to use the “preponderance of evidence” standard, the lowest possible burden of proof, normally reserved for civil matters involving money or property. In other words, a student would have to be shown “more likely than not” to have committed the crime in order to be found guilty.

The edict also all but eradicates due process. Hearsay counts as evidence. Cross-examination of the accuser is barred, for fear of traumatizing him or her further. While in some schools a lawyer or advocate for each student is permitted to be present, he or she is usually not allowed to speak. “Even in civil law you have protections for lower standards of proof, physical evidence, cross-examination. Cross-examination isn’t to intimidate somebody, it’s to allow a jury or a judge to assess their demeanor. That’s a factor in determining truth,” says Garrett. “There are expert witnesses, criminal psychologists who are experienced in this. [Lawyers] question each juror to make sure they’ll be unbiased before they sit on the jury,” she continues. “There is all kinds of overlay to ensure that a person is presumed innocent until proven guilty.”

On college campuses, cases are investigated by campus police, Title IX officers, and faculty members. But it’s unclear whether they are properly trained to perform such investigations. Green says that Title IX representatives at her university receive training from various presenters on the law’s requirements. According to Klein, the UC system offers extensive training, including “what constitutes as a violation of policy, and how [to] deal with somebody who’s been traumatized.” But those involved in the investigation aren’t judges, lawyers, criminal investigators, or specialists in sexual assault. “You’re taking these very complex cases, handing them over to someone who got trained for a week and who doesn’t need to use evidence,” Garrett says.

Then there is the question of objectivity. Faculty, Title IX officers, and other representatives of the university also deliberate and issue verdicts. And they are undoubtedly aware of the fact that their employer can lose its federal funding if it is found to have violated Title IX by mishandling a case. They have skin in the game, which jurors never do.

FIRE’s Joe Cohn raises a different issue. While campus proceedings aren’t criminal cases, they do have criminal law implications. According to Cohn, anything a student says during an investigation is admissible against him in a criminal court, which is true for any public statements individuals make. The only exception is when an individual was compelled to make those statements. “Technically speaking, student statements in campus judiciaries aren’t compelled because students can always choose to withdraw from the school and not face the tribunal,” Cohn says. But if they do choose to speak in the tribunal, they face a situation where they are responsible for proving their innocence without the representation of a lawyer and without the protection of due process. “So, practically speaking, students are being forced to waive their 5th amendment rights in order to defend themselves on campus.”

If false accusations are negligible or non-existent, then these gaps in the bill are nothing to worry about. And, as Pride explains in reference to the shift in burden of proof, even if a student is found responsible, the punishment doesn’t mean jail time. “Does it mean that more people will be found guilty? Potentially, but in the worst case they get kicked out of school.” But false accusations do happen, and whatever their number they are not so easily brushed aside. If someone is falsely accused and subsequently expelled, what happens next?

Sherry Warner-Seefeld and Judith Grossman can answer that question. Both women’s sons were falsely accused of sexual misconduct, and both have first-hand experience of the campus tribunal process. Sherry’s son Caleb was a student at the University of North Dakota when charges of sexual assault were brought against him by another student, a woman with whom he’d had a relationship a few months prior. Eleven days later, Caleb sat before a university tribunal, facing the dean and a number of other high-level university administrators. Within a few hours, Caleb was found guilty and immediately expelled. His transcript indicated expulsion due to sexual assault, significantly diminishing his chances of transferring to another university.

Soon after, the local police department opened its own investigation into Caleb’s case and found, three months later, that Caleb’s accuser had falsified her report. A warrant was filed for his accuser’s arrest. She fled to California, and the case remains open. Shortly after the police department’s finding, Warner-Seefeld approached the university to clear her son of the charges against him. The university refused for nearly a year, citing various bureaucratic stipulations. Not until Warner-Seefeld attracted significant publicity did UND comply. Caleb had waited nearly 18 months for his name and transcript to be cleared of a false charge. He never went back to school.

Grossman’s son, whose identity she won’t reveal, was accused of sexual misconduct by an ex-girlfriend, and the alleged incident had occurred three years earlier. Her son received a list of allegations that were so vague as to “render any defense virtually impossible,” she says. Eventually, though he was not granted a finding of innocence, he was not convicted, good fortune which Grossman says is due more to more to her own determination and resources than the competence of those sitting on the tribunal.

This summer, Warner-Seefeld and Grossman launched Families Advocating for Campus Equality (where Garrett sits on the Board of Directors) to raise awareness about developments on college campuses and to provide support for families in situations similar to their own. Warner-Seefeld says she has already received 35 calls from families whose sons were accused—they say falsely—since August. Garrett keeps records of lawsuits brought by students who claim they were falsely accused. She has identified 49 such cases since 2011, and her list is growing.

But the numbers aren’t important. The question is whether the practices that universities have in place are fair, and whether they actually serve to make campuses safer for students. At worst, if an innocent person is found responsible, he or she will be expelled. Pride is right about that. But gaining acceptance to another university, not to mention having access to the kinds of jobs available to those with a college degree, becomes that much more difficult, if not impossible.

The situation is especially dire if a guilty person is (rightly) expelled, Cohn emphasizes. In this case, the perpetrator doesn’t go behind bars but is released back into the world, free to repeat the assault. And the new focus and push towards campus tribunals makes criminal convictions much more difficult. “Prosecutors and police chiefs across the country have told me they have only 72 hours to get a rape kit done….After that period of time all of that physical evidence is gone. [If universities tell students,] “the criminal justice system won’t help you, here’s another avenue,” a number of meritorious claims will be diverted to campus. That is a recipe for guaranteeing that violent predators are on the street.”

But the system of handling claims seems to be permanently embedded in the collegiate framework, and the affirmative consent bill is gaining momentum. Versions are being adopted or proposed in New York, New Hampshire, and New Jersey. Male students might be wise to, quite literally, hang on to their britches.

Cases: California: Affirmative Consent Bill Threatens Student Due Process