On November 24, FIRE wrote to the Department of Education’s Office for Civil Rights (OCR) about the ways in which the so-called “affirmative consent” standard infringes on the due process rights of college students accused of sexual assault. We wrote, in relevant part:
[T]he affirmative consent standard fails to give students notice of what is required of them, impermissibly places the burden of proof on accused students to demonstrate their innocence, and puts students having consensual sex at risk of being disciplined.
Last week, Michael Lissack, Executive Director and “Professor of Meaning” at the Institute for the Study of Coherence and Emergence and co-producer of the “We-Consent™ App Suite for smartphones,” wrote to OCR head Catherine Lhamon in response to our letter.
In his response, Lissack attributes to FIRE (and rails against) an argument we’ve never made, chides us for not making valid points we’ve made repeatedly, and promotes his own smartphone app as a solution to the problem affirmative consent proponents like him argue doesn’t exist—the impossibility of proving that one received affirmative consent for sexual activity.
Accordingly, we want to clarify some important points.
Though Lissack “urge[s] OCR to completely reject FIRE’s letter,” he manages to confirm a central argument of ours just four sentences into his response. He concedes that “[a]ffirmative consent … is not well understood.” The fact that he proceeds to spend hundreds of words trying to justify his interpretation of the standard demonstrates precisely what FIRE has said before: Because even proponents of the standard disagree on what affirmative consent policies mean in practice, they do not provide students with adequate notice of what is actually required of them. Nor do they give college administrators enough guidance to fairly and consistently enforce the policies. This is precisely the “vagueness” that courts of law deem impermissible.
In his letter, Lissack offers contradicting ideas about what affirmative consent policies mandate. To start, Lissack writes about “sexual encounters as a licensure relationship” and explains: “Consent is the granting of a license. That license can be limited by the granting party and can be withdrawn at any time.” At one point, he cites the question of whether “licensure for sexual activity was granted by the other party and remained in effect at the moment of the encounter (which may be defined as touch by touch).” This suggests that he thinks students must ask sexual partners for permission to touch different body parts. At another point, though, Lissack writes, “The party making use of the license needs to act on a reasonable basis regarding the licensure grant mindful that consent — the license — can be withdrawn at any time.” In other words, Lissack posits that as long as the sexual encounter is escalating in a reasonable manner, it will continue unless one of the parties expresses a desire to stop. This is the “no means no” model that affirmative consent would supplant. The fact that Lissack cannot consistently articulate the meaning of affirmative consent is telling.
Lissack contrasts his “licensure” theory with the supposed “chattel” theory of sex, which he asserts FIRE “implicitly” supports. Under the chattel theory, only one person needs to consent to sex, because the other person is treated as property. It should go without saying that Lissack is grossly misstating our argument. FIRE strongly believes that all involved parties must consent to sexual activity and has never stated otherwise, explicitly or “implicitly.” What we object to is the notion that a third party, not involved in the sexual encounter, should be allowed to dictate (in vague terms backed by punitive powers) the manner of expression of consent. Sex acts, and the communication surrounding them, are intensely personal, varied, and nuanced. It is unacceptable to force college students (and, indefensibly, only college students) into choosing between (1) not having sex or (2) conforming their interpersonal, intimate communication to that which will be unambiguous to the panel of fact-finders that may assess that communication, necessarily out of context. FIRE also objects not to the burden on both parties to receive consent, but to the burden on an accused student to prove that he or she received consent, particularly weeks, months, or even years after the fact where little if any evidence might exist.
Lissack dismisses our concern over an accused student’s ability to prove his innocence by introducing his We-Consent™ App Suite:
FIRE falsely claims that there is no reasonable means for students to provide retrospectively demonstrable evidence of consent. As the producers of the We-Consent™ App Suite for smartphones (see our website at http://protectequalsrespect.com), we vigorously disagree.
We at FIRE think that defending oneself in the face of devastating lifelong repercussions shouldn’t necessitate owning a smartphone and downloading (and remembering to use) a particular application that apparently requires annual membership fees. Somehow, Lissack has managed to one-up California Assemblywoman Bonnie Lowenthal—who could only muster “Your guess is as good as mine” when asked how accused students could possibly demonstrate consent—by generously offering to sell students an opportunity to protect their educations and careers.
Not that it would work, anyway. Affirmative consent advocates and skeptics alike agree that consent can be revoked at any time. That means that even if an app recorded consent at the beginning of an encounter, it couldn’t be used to defend against an allegation that consent was revoked and subsequent acts constituted sexual assault. But let’s give credit where it’s due: Lissack chose a great time to capitalize on the climate of fear and what Slate’s Emily Yoffe called “the college rape overcorrection” on campuses today.
FIRE also rejects Lissack’s reliance on his licensure theory in approving of the way affirmative consent shifts the burden of proof to the accused student. As a preliminary matter, the analogy between consent for sex and licenses is a strange choice considering the requirements of affirmative consent. Lissack seems to believe the matter is straightforward, writing:
One needs to actually obtain a license in order to use it and one needs to engage in whatever efforts are necessary so as to keep the grant of licensure effective and in force. Students fully understand this when it comes to driving, and to making use of the university Internet system, and to accessing the resources of the gym and the library.
Does Lissack think that license-holders contact licensors to confirm, before every time they make use of the license, that the license is still “ongoing”? To the contrary, we expect that students drive and use the Internet and go to the gym under the assumption that someone would tell them if their license was revoked—the “no means no” model.
Lissack writes that “[t]he burden of proof falls on the party claiming the receipt and then current effectiveness of license from the other. Affirmative consent is merely a restatement of the normal burdens of proof that licensure entails.” But if someone is charged with driving without a license, the state must prove (a) that they were driving, and (b) that they did not possess a license. The accused does not bear the burden of producing their license, as Lissack claims. His analogy fares no better in the civil law context. In lawsuits involving disputes over licenses, the burden of proof lies on the party alleging infringement. Analogously, even if we were to accept the licensure theory, the burden of proof would lie on the accuser, who is claiming that his or her partner’s “license” to engage in sexual activity expired.
Lissack goes on to criticize FIRE for, in his view, “equat[ing] violations of student codes of conduct with crime.” He argues that “civil standards regarding preponderance of evidence and burdens of proof are appropriate.” Though we cite criminal cases to help illustrate the difference between elements of an offense and affirmative defenses, FIRE is under no illusion that universities can send a student to jail. In fact, we frequently note that they can’t—and accordingly, we argue that sexual assault cases should be sent to law enforcement, so that violent offenders can be kept off the streets. However, as the Supreme Court has made clear, students at public institutions still have property and liberty interests at stake when facing long-term suspension or expulsion, and therefore must be afforded due process. Private institutions that purport to value fairness in disciplinary matters must respect the same principles.
Of course, in sexual assault cases, an accused student’s educational and professional career, reputation, and finances are at stake. As we’ve written to OCR before, the Supreme Court has noted that an intermediate standard of proof (e.g., the “clear and convincing” standard) may be employed “in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant,” because the “interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof.” Addington v. Texas, 441 U.S. 418, 424 (1979). FIRE believes the clear and convincing standard is the most appropriate standard of evidence in the campus adjudication context because the same risk of reputational harm and curtailed educational and professional opportunities exists in campus hearings, but the accused is already at a disadvantage, since he or she has none of the procedural safeguards that are guaranteed in an actual civil suit (more on that below).
Lissack does, however, agree with FIRE on some significant points, although he berates us for missing them. (Spoiler alert: We didn’t.) He notes the problem with effectively requiring accused students to waive their Fifth Amendment rights in order to defend themselves in a campus hearing, in cases where they are also accused of a criminal violation. While defendants in criminal court may have active assistance of counsel during questioning, most college students do not have this right in campus hearings. Yet, as FIRE has pointed out many times before, an accused student’s statements in a campus hearing can be used against him or her in criminal court—and prosecutors have taken note of this effective loophole. Fortunately, FIRE’s zealous advocacy has led to the adoption of right-to-hire-counsel legislation in some states, a critical tool for protecting accused students. “If FIRE had addressed these issues,” Lissack writes, “we might have found room for agreement with them. They did not.” We did elsewhere, though admittedly, we cannot include every argument we’ve ever made in every letter we write.
Lissack agrees with FIRE on another point: “It is not the role of school Title IX panels to be ‘adjudicating sexual assault allegations.’” He complains that this point “is implicit in [FIRE’s] letter rather than explicit.” Torch readers know that to say we’ve explicitly argued this point is a vast understatement. As my colleague Joe Cohn wrote this fall:
While there is no doubt that the criminal justice system is also flawed, there are several reasons why it is still the better forum for deciding these challenging cases. First and foremost, courts have tools that campuses lack that are designed for fact-finding: rules of evidence, legally trained judges and lawyers, subpoena power, and sworn testimony, just to name a few. Moreover, an individual who suffers an injustice in criminal court has meaningful appellate rights and the writ of habeas corpus to help correct errors. The procedural mechanisms to respond to campus injustices are vastly inferior, when they exist at all. Finally, it is important to remember that even when the campus system is at its best, it still leaves predators on the streets if real law enforcement isn’t involved. In contrast, when the criminal justice system works properly, dangerous people are behind bars, not preying on new, innocent victims.
This, too, is a broader issue we chose not to elaborate on in our six-page letter to OCR focusing specifically on affirmative consent.
Another sleight of hand in Lissack’s letter, common in a lot of advocacy in support of affirmative consent laws and policies, is the disingenuous claim that affirmative consent policies are not about standards of adjudication, but really about cultural change. Make no mistake about it: Accusations against real people will be determined in campus tribunals. Their educations and careers will be on the line in those hearings. Whether they have to prove they obtained consent or whether that burden will remain with the institutions seeking their punishment matters profoundly to the fundamental fairness of the process. That reasoning (and not the fact that jail was on the line) is precisely why the Supreme Court of Washington found the use of affirmative consent to be unconstitutional both as a jury instruction and as a means of deciding rape cases.
In short, Lissack is seeing what he wants to see in affirmative consent: an opportunity to promote his product. And affirmative consent supporters may see what they want to see in Lissack’s letter: reassurance that fighting campus sexual assault doesn’t have to involve so much consideration of accused students’ rights. But Lissack’s response to FIRE ignores logic, facts, and principles of fairness. In fact, the very existence of his product demonstrates FIRE’s core problem with affirmative consent: It is rarely possible to prove. A stubborn loyalty to the affirmative consent standard despite its problems will not make campuses safer for anyone.