Month: May 2016

PR: American Law Institute Pulls the Plug on Affirmative Consent

Post author By saveadmin
Post date May 23, 2016

Contact: Gina Lauterio
Telephone: 301-801-0608
Email: glauterio@saveservices.org

American Law Institute Pulls the Plug on Affirmative Consent

WASHINGTON / May 23, 2016 – By a resounding margin, members of the American Law Institute voted down a controversial “affirmative consent” standard being considered for the group’s proposed Model Penal Code for Sexual Assault. Instead, the ALI membership approved a definition proposed by attorney Margaret Love that states, “’Consent’ means a person’s willingness to engage in a specific act of sexual penetration or sexual contact. Consent may be expressed or it may be inferred from behavior, including words and conduct—both action and inaction—in the context of all the circumstances.” (1)

The historic vote took place at the ALI annual conference on May 17 in Washington, DC. After two hours of at times acrimonious debate, approximately four-fifths of the 500 members present voted to remove the affirmative consent language (2). Leading judges, law professors, and practicing attorneys comprise the membership of ALI, which develops model laws for adoption at the state level.

The National Association of Criminal Defense Lawyers had sharply criticized the proposed affirmative consent policy, charging the ALI draft used “the bludgeon of criminal sanctions to impose the new and yet untested concept of ‘affirmative consent’ upon society.” (3)

The affirmative consent standard has been struck down in two state-level decisions, as well.

In August, Judge Carol McCoy ruled the University of Tennessee-Chattanooga’s affirmative consent policy “erroneously shifted the burden of proof” to the defendant. The administrative judge noted that “requiring the accused to affirmatively provide consent… is flawed and untenable if due process is to be afforded to the accused.” (4)

Last month the Massachusetts District Court ruled against the Brandeis University affirmative consent policy, saying “it is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.” (5)

Decrying the rigidity and intrusiveness of the affirmative consent approach, Newsday columnist Cathy Young asks, “While there’s still time, we should stop and ask just how much government we really want in the bedroom.” (6) More information about affirmative consent can be found on the SAVE website (7).

(1) https://www.ali.org/media/filer_public/19/a4/19a45dd8-da30-44d5-a4a1-5bb3992a3521/mpcsa-language-52016.pdf
(2) http://www.washingtonexaminer.com/a-mess-law-group-rejects-affirmative-consent/article/2591692
(3) http://www.prosecutorintegrity.org/wp-content/uploads/2016/03/NACDL-Comments-Draft-6-MPC-Sexual-Assault.pdf
(4) https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf
(5) https://kcjohnson.files.wordpress.com/2013/08/brandeis-decision.pdf
(6) http://www.newsday.com/opinion/columnists/cathy-young/the-risks-of-affirmative-consent-1.11819583
(7) http://www.saveservices.org/sexual-assault/affirmative-consent/

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

Campus Civil Rights

PR: Title IX Over-Reach: Leading Law Professors Issue Call to Rein in Federal Office for Civil Rights

Post author By saveadmin
Post date May 16, 2016

Contact: Chris Perry

Email: cperry@saveservices.org

Title IX Over-Reach: Leading Law Professors Issue Call to Rein in Federal Office for Civil Rights

WASHINGTON / May 16, 2016 – Professors from leading law schools have signed an Open Letter deploring the erosion of free speech and due process on campus. The Letter calls on the Department of Education’s Office for Civil Rights (OCR) to cease its unlawful practice of issuing binding policy directives that do not comply with review-and-comment requirements of the Administrative Procedure Act. The Open Letter is believed to be the first time that professors from numerous law schools, as a group, have publicly chastised the federal Office for Civil Rights.

The co-signers include faculty members from Harvard Law School, Stanford University, University of Pennsylvania, George Washington University, University of Wisconsin, New York University, University of Miami, Touro Law School, University of San Diego, and other schools.

The Open Letter traces the evolution of the OCR policy directives that purport to interpret Title IX, the federal law that was enacted in 1972 to bar sex discrimination in schools. The OCR mandates have had the effect of broadening, weakening, and eventually negating the Supreme Court’s definition of sexual harassment. In Davis v. Monroe, the High Court defined sexual harassment in schools as conduct that is “severe, pervasive, and objectively offensive.” Over the course of time, the OCR has expanded that pivotal definition to encompass conduct that is severe, pervasive, OR subjectively offensive.

In a 2013 ruling, the OCR mandated that the University of Montana change its definition of sexual harassment to include “any unwelcome conduct of a sexual nature,” including verbal comments. This has had the effect of pressuring universities to establish speech codes and free-speech zones. The Open Letter also recounts the effects of OCR policy mandates on due process protections for students accused of sexual assault.

The professors’ statement makes recommendations to clarify the legal status of OCR directives, reinvigorate free speech, and restore due process.

“The federal Office for Civil Rights has ignored constitutional law, judicial precedent, and Administrative Procedure Act requirements by issuing numerous directives, and then enforcing these directives by means of onerous investigations and accompanying threats to withhold federal funding. The OCR has brazenly nullified the Supreme Court definition of campus sexual harassment,” the professors warn. “These unlawful actions have led to pervasive and severe infringements of free speech rights and due process protections at colleges and universities across the country.”

The Open Letter can be viewed here: http://www.saveservices.org/wp-content/uploads/Law-Professor-Open-Letter-May-16-2016.pdf The Letter remains open for additional co-signers.

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

Campus Office for Civil Rights Sexual Assault

PR: Book Warns of ‘New Totalitarianism’ on Campus, Links Problem to 2011 Federal Mandate

Post author By saveadmin
Post date May 9, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Book Warns of ‘New Totalitarianism’ on Campus, Links Problem to 2011 Federal Mandate

WASHINGTON / May 9, 2016 – A provocative new book spotlights the dramatic erosion of free speech and due process rights on college campuses, and pins much of the problem on the federal Office for Civil Rights. Rape Culture Hysteria: Fixing the Damage Done to Men and Women calls on lawmakers to take determined measures to restore democratic ideals and constitutional protections to universities.

Written by social commentator Wendy McElroy, Rape Culture Hysteria examines the factual basis of “rape culture” and concludes it is “not a real crisis but a manufactured one.” The book portrays Rolling Stone magazine’s report of an alleged gang-rape at the University of Virginia as emblematic of the hysteria. Even though the magazine account was quickly exposed as a fraud, rape culture proponents continued to insist that university investigators should “always believe the victim.”

Much of the problem can be traced to the Department of Education’s Office for Civil Rights (OCR), which issued a Dear Colleague Letter on campus sexual violence in 2011. The policy required colleges to eliminate many due process protections in their handling of sexual assault allegations. As a result, the “treatment of accused males on campus has worsened dramatically,” McElroy posits.

McElroy charges the 2011 Dear Colleague Letter and other “government policies are instrumental in turning American universities into bankrupt social experiments.” As a result, a new “high-paid, careerist professional caste” of college administrators has been created, she writes.

The book identifies a number of solutions, including reducing the OCR budget, treating sexual violence as a “criminal matter by turning accusations over to the police,” and devolving educational authority to the states.

“Political correctness is the new totalitarianism,” McElroy concludes. More information on the book can be seen here: http://www.amazon.com/dp/B01EENF4HW/ref=tsm_1_fb_lk

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