February 2016 - Save - Leading The Policy Movement For Fairness and Due Process On Campus

Contact: Gina Lauterio

Lawmakers Push Back to Restore Free Speech and Due Process on Campus

WASHINGTON / February 16, 2016 – In the face of continuing pressures by campus activists, lawmakers across the country are taking steps to restore constitutionally based rights to free speech and due process. SAVE applauds these efforts to bring democratic ideals back to college campuses.

Regarding free speech, Arizona State Rep. Anthony Kern introduced a bill last week that would prohibit colleges from designating any area of campus as a free speech zone (1). In Missouri, Rep. Dean Dohrman introduced a bill last month that would require students to take a class on free speech in order to graduate (2).

Last summer the U.S. House of Representatives convened a hearing on First Amendment Protections on Public College and University Campuses (3). In January the National Association of Scholars issued a wide-ranging statement on intellectual freedom and free speech (4).

Lawmakers have expressed concerns about the lack of due process in sexual assault cases, as well.

On January 26, Georgia Rep. Earl Ehrhart, chairman of the Appropriations subcommittee on Higher Education, held a hearing that probed the lack of due process on campuses. Ehrhart warned he wouldn’t talk to college presidents about budget requests until they adopt “simple, basic due process protections.” (5)

Lack of legal representation is another due process shortcoming, and right-to-counsel laws for students accused of sexual assault have now been enacted in North Carolina, Arkansas, and North Dakota (6).

Nationally, two senators have voiced concerns about deficiencies in due process protections.

Sen. Marco Rubio (R-FL) has highlighted the problem of false allegations: “One need only review recent news reports to know that false allegations do, in fact, happen. Certainly, we should make additional efforts to protect due process on campus.” (7)

Referring to the proposed Campus Accountability and Safety Act, Sen. Mark Warner (D-VA) commented, “I do believe you do need, for the accused, you need to maintain due process rights.… I think this part of the legislation will probably require some additional review.”

Last Tuesday Milo Yiannopoulos spoke at Rutgers University-New Brunswick about the need for free speech on campus. In response, protesters threw blood-colored paint on themselves, vandalized the building where Yiannopoulos spoke, and repeatedly interrupted his speech (8).

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Contact: Gina Lauterio

Email: glauterio@saveservices.org

On the Heels of Judicial Reversal, Law Professors Assail Affirmative Consent

WASHINGTON / February 8, 2016 – Following a landmark legal decision last summer, law professors across the country are criticizing affirmative consent policies as ineffective, unfair to defendants, and harmful to women. SAVE calls on lawmakers to focus on proven rape control strategies such as enhancing campus security measures, reducing alcohol-related assaults, and involving criminal justice authorities.

On August 4, 2015, judge Carol McCoy overturned a decision of the University of Tennessee at Chattanooga to expel a student on allegations of sexual assault. McCoy ruled the university’s affirmative consent standard “improperly shifted the burden of proof” because the “ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” (1)

Following the judicial reversal, legal experts began to express a range of concerns with the standard, including the policy’s unworkability, lack of effectiveness, curtailment of due process rights, wrongful convictions, constitutional problems, and broader social effects.

John F. Banzhaf, professor at George Washington University Law School, explains the affirmative consent standard “is not logical — nobody really works that way.” (2)

University of Kansas law professor Corey Yung worries that affirmative consent policies are ineffective “because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative.” (3)

Nadine Strossen, faculty member at the New York Law School and former president of the ACLU, notes: “These affirmative-consent rules violate rights of due process and privacy…Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.” (4)

Tamara Rice Lave of the University of Miami School of Law reinforces concerns about shifting the burden of proof to the defendant: “But with affirmative consent, the accused must put on evidence.” (5)

Alan Dershowitz, Emeritus Professor at Harvard Law School, explains that “Requiring the accused to demonstrate that affirmative consent was obtained, which is often difficult to prove,” would result in an “unacceptable” number of wrongful convictions. (6)

Baruch College law professor Jay Weiser highlights the constitutional problems: “The new affirmative-consent rules run afoul of many constitutional principles” because they are “vague and overbroad” and “amount to government-compelled speech.” (7)

Harvard Law School faculty member Janet Halley reflects on the broader social effects of affirmative consent policies that would “foster a new randomly applied moral order that will often be intensely repressive and sex-negative…They will install traditional social norms of male responsibility and female helplessness.” (8)

Referring to a proposal being considered by the American Law Institute, San Diego law professor Kevin Cole writes that the draft’s overly broad affirmative consent provisions would determine “the legality of every sex act between individuals who are not in an intimate, cohabiting relationship” and “will pose dangers to [women] whose protests are genuine.” (9)

University of Pennsylvania law professor Paul Robinson argues, “The most promising path to changing the culture of sexual consent on college campuses is to adopt and regularly reaffirm ‘yes means yes’ as the rule of proper conduct, but to reject it as the principle of adjudication.” (10)

The Foundation for Individual Rights in Education (FIRE) summarizes the legal pitfalls with affirmative consent, concluding, “Expanding the definition of an offense so broadly that it encompasses truly innocent people in an attempt to secure more guilty findings is unacceptable.” (11)

This week marks the two-year anniversary of the introduction of an affirmative consent bill in California. On February 10, 2014, Kevin de León introduced SB 967, which mandated the “yes-means-yes” standard for all California colleges. Seven months later Gov. Jerry Brown signed the controversial bill into law.

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org