Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
It is not often that The Champion addresses potential flaws in civil proceedings. But this month’s article by Charles Sevilla, Campus Assault Allegations, Adjudications, and Title IX, has special relevance for the criminal defense bar. First and foremost, these proceedings are often accompanied by parallel criminal proceedings, and thus it is common for accused students and their families to seek criminal defense counsel. Second, there is a real risk that some of the concerns highlighted by Mr. Sevilla may potentially leach into criminal codes, ushering in a wave of overcriminalization of unimaginable proportion.
Until recent years, campus allegations of sexual misconduct that rose to the level of criminal behavior were generally not adjudicated in the college setting until the criminal investigation concluded. While interim sanctions and protective measures may have been put in place, final adjudication of the campus misconduct allegation would follow the criminal proceeding. This was a logical approach that respected due process. Also, because of the higher burden of proof in the criminal context, a determination of wrongdoing, either by plea or trial, conclusively determined the outcome of the campus misconduct allegation. As Mr. Sevilla’s article explains, two key changes under Title IX of the Education Amendments of 19721 have radically altered the process for addressing these kinds of allegations on the college campus.
Colleges and universities are now required to immediately investigate and adjudicate any allegation of sexual assault or harassment, and they must apply the lowest recognized standard of legal proof — preponderance of the evidence. The prior reliance on clear and convincing evidence is no longer permissible. The Sevilla article provides examples of how these requirements have wreaked havoc on due process. But that is not the end of the story, and here is where these trends may be relevant for criminal defense lawyers even if they never handle a school disciplinary proceeding.
Two states, California and New York, have adopted so-called “yes means yes” laws that apply to disciplinary proceedings on college and university campuses.2 These laws adopt an affirmative consent standard. Under these laws a person engaged in any sexual activity must secure the affirmative, conscious and voluntary agreement to engage in each specific activity, and it must be ongoing throughout the sexual activity. This is a far cry from “no means no.” Under the affirmative consent standard, neither lack of protest nor silence suffices to establish consent. When coupled with the preponderance of the evidence standard to establish guilt, the affirmative consent requirement essentially has the effect of requiring the accused to prove innocence. And, indeed, as the Sevilla articles points out, when a school applied that standard in Tennessee, a state that has not adopted the affirmative consent requirement, a court found that the school proceeding violated due process.
So what does all of this have to do with the criminal law? Potentially plenty. The American Law Institute (ALI) is a prestigious group of lawyers that for nearly 100 years has promoted clarification and modernization of the law. It is the ALI that has promulgated the Model Penal Code (MPC). In 2012, ALI issued what is termed a “prospectus for a project of revision” to revise MPC Article 213 dealing with rape and related offenses. That section of the MPC was originally approved in 1962, and there is no doubt that much of it is outmoded. But in tackling this project, through several iterations of a new draft, the reporters have included a provision that would require affirmative consent — essentially proposing to engraft into the criminal law the same kind of “yes means yes” provision that California and New York require in college disciplinary proceedings. The most recent draft (denoted Preliminary Draft 5) has already prompted scores of leading practitioners, scholars, and judges to protest the affirmative consent provision, specifically contending that the draft contributes to the problem of overcriminalization. Further, critics point out that the standard effectively shifts the burden of proof and creates a presumption of guilt, which an accused person would have to overcome by affirmatively proving consent to each and every instance of sexual contact.3
It remains to be seen how the ALI will resolve the controversy. As so often happens in this country, when a legitimate problem must be addressed, resort to harsh and overly expansive criminal laws is often the consequence. Hopefully, that will not be the case as society deals with the nuances of intimate interpersonal relationships. The need to address the abysmal treatment to which vulnerable persons have been subjected on some college campuses for far too long is long overdue. But one would hope that sustained and aggressive education and a robust commitment to change cultural mores can be an effective palliative. The alternative, a broad brush approach that not only strips individuals of fundamental due process in a civil context, but also threatens to unleash the sledge hammer of the most serious criminal condemnation without respect for fundamental constitutional protections, is fraught with danger, and carries the potential for significant injustice.
- Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
- Cal. Educ. Code § 67386; N.Y. Educ. Law § 6441.
- The memorandum of objection contains this critique: “Preliminary Draft 5 fails to mention the concern that ‘affirmative consent’ begins with a presumption of guilt. Consider a prosecutor who says: ‘Ladies and gentleman of the jury. There were 127 digital, oral or genital sexual contacts during the night in question and the record contains no proof of prior continuous affirmative consent for any of those 127 contacts, much less all of them. The prosecution rests.’”
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Norman L. Reimer
1660 L Street, NW, 12th Floor
Washington, DC 20036
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