Month: August 2019

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Uncategorized

Study finds more than half of colleges ‘facially violate’ Title IX with women-only scholarships

Arizona has more scholarships for women than 36 states combined have for men

 

Men who want more scholarship money might try a novel tactic: Identify themselves as women.

A review of more than 200 American colleges and universities reveals that they favor women over men by a wide margin in sex-specific scholarships.

The most stark disparities are found at the University of Phoenix (106 female scholarships to 2 male), Auburn University (67 to 1) and Oregon State (51 to 5).

The actual disparities could be higher: The study by Stop Abusive and Violent Environments, best known for defending students accused of sexual misconduct, only covered 36 states.

Erin Buzuvis, a Title IX expert and law professor at Western New England University, recently told the Los Angeles Times that sex-specific programs should be reviewed as “segregation projects” that may promote stereotypes.

But she also wants to increase the number of men in female-heavy fields such as nursing and K-12 education.

Buzuvis told The College Fix in an email that she doesn’t “have any examples” of academic programs that are mainly geared toward male students, despite spending her academic career studying sex-based discrimination and blogging on Title IX.

Another law professor told The Fix that students excluded from scholarships because of their sex should consider suing, citing the plain language of Title IX itself.

Women get $641 more at Kent State

The top three states for female-only scholarships among the 36 reviewed by SAVE: Arizona (161), California (117) and Florida (112). The male-only numbers: 3, 4 and 7.

Five of the next seven are reliably red states: Oregon (93), Utah (90), Alabama (87), Indiana and Wyoming (86 each), Wisconsin (77) and Texas (73). The only one of those with double-digit male scholarships was Texas.

Arizona has more women-only scholarships than the 36 states combined have for men, according to the tally, which is based on SAVE’s review of college websites.

Male students thinking of applying to Kent State University in Ohio can quantify the difference in scholarship money.

SAVE said the public university’s associate counsel told the group this month that it offers 11 scholarships for women and two for men. The average women-only scholarship in the prior academic year was $2,208, compared to $1,567 for the average men-only scholarship.

This was a direct violation of Title IX’s implementing regulations, according to SAVE, which limit sex-restricted financial assistance to those forms whose “overall effect” does not discriminate on the basis of sex.

The study found “widespread discriminatory practices” against men: 57 percent of reviewed colleges “facially violate” Title IX with their array of scholarships (a difference of five or more between the sexes), while 27 percent are “borderline” (2-4) and 16 are “non-discriminatory” (0-1).

Female professor files complaint to protest unfair treatment of men

It’s not just scholarships that overwhelmingly favor women. SAVE said more than two dozen schools are already under investigation by the U.S. Department of Education for limiting programs to women, such as women-only engineering, science and technology programs.

They include Brown, Yale and Princeton, plus several prominent public universities, including UCLA, the University of California-Berkeley and University of Michigan.

UCLA can thank one of its female professors for its federal investigation.

She told the Los Angeles Times that she filed a Title IX complaint because she objected to the gender-exclusive nature of two workshops hosted by the Institute for Pure and Applied Mathematics. The feds told her it was investigating the workshops, which received federal funds.

Fliers for the January workshop on “Women in Mathematics and Public Policy” were frank: “only women will be invited to participate,” according to the Times. A flier for the “Collaborative Workshop for Women in Mathematical Biology,” hosted this June, only welcomed female grad students, PhDs, and researchers.

The female professor, who spoke on condition of anonymity for fear of retaliation, said she was motivated to complain by increasing favoritism toward women in the sciences and resulting disillusionment among male students.

MORE: Schools offering woman-only scholarships may be in violation of Title IX

A UCLA spokesperson told the Times that it “did not exclude men from participating in the two workshops despite the focus on women,” but did not specify whether any males attended the events. It is also unclear if any transgender women attended either workshop.

Regulatory complaints about the exclusion of men have gotten results in the past few years.

Most recently, Clemson University opened its female-only programs to everyone to end a federal investigation. Mark Perry, an economist at the University of Michigan-Flint, helped kick off the trend three years ago with a successful complaint against the University of Michigan’s 91-year-old women-only lounge.

Perry has since filed gender discrimination complaints against against more than 50 institutions, including the University of California-Davis for its STEM programs for middle and high school girls, according to the Times.

Last week he gave an update of his efforts on his American Enterprise Institute blog, after Clemson revised its programs.

“Given the fact that most universities have large and growing diversity staffs (150 at Yale, nearly 100 at Michigan),” he wrote, it’s disappointing that “external complainants like myself” have to file complaints against sex-discrimination practices. This “really should be done internally by universities’ own Title IX and diversity offices.”

‘We cannot have Female Economics 101 and Male Economics 101’

John Banzhaf, a George Washington University law professor who has fought for “potty parity” for women in public restrooms, goes even further than his peer Erin Buzuvis at Western New England University.

Regardless of the initial motivation for female-only opportunities in the academy – to reverse gender inequity, “male privilege” and a pattern of higher male enrollment in STEM fields – the practice is not legal, he said in an email.

While male-only opportunities are vastly disproportionate to those for women on campus, the imbalance is less relevant than the sheer separation of educational opportunity by sex, according to Banzhaf.

Title IX language provides that students cannot “be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in federally funded education “on the basis of sex.”

Banzhaf concludes that the “words certainly suggest that any person excluded from a program solely because of gender would have a legal cause of action, even if offered a program arguably ‘equivalent.’”

This is the gender equivalent of the Supreme Court’s rejection of “separate but equal” facilities by race in 1954’s Brown v. Board of Education ruling. Without considering Title IX regulatory exceptions for athletic competition and facilities where students disrobe, even equal footing for sex-restricted programs would violate the law under this theory.

Broadly speaking, “we cannot have Female Economics 101 and Male Economics 101 because we can teach both genders in one class,” Banzhaf wrote.

MORE: 92% of sex-specific scholarships are for women

MORE: Did Tulane agree to ‘stop discriminating against men’ to satisfy OCR?

Categories
Title IX

Women-Only STEM Programs Target the Gender Gap. Now the Education Dept. Is Investigating Them for Bias.

By Steven Johnson  
AUGUST 22, 2019    

Women have long been underrepresented across science, technology, engineering, and math majors, leading colleges to start hundreds of programs — scholarships, summer camps, and societies — to draw them in.

But in recent years, a handful of activists have complained that those programs, and gender-specific programs more broadly, discriminate against men. And they’ve grabbed the attention of the U.S. Department of Education.

The department has started more than 24 investigations of colleges, including the Universities of California at Berkeley and at Los Angeles, Yale University, and many others, the Los Angeles Times reported this week, following complaints that their single-sex programs and scholarships discriminate against men.

“They enforce any kind of discrimination against women, but they allow discrimination against men, in violation of Title IX’s clear prohibition of sex discrimination.”

Women earn less than a third of all degrees in STEM, according to data from the National Center for Education Statistics, and remain underrepresented in many of the fields after graduation.

Part of the movement against the programs originated with Mark J. Perry, a professor of economics and finance at the University of Michigan at Flint. He has documented much of his fight against what he calls “gender apartheid” in online posts at the American Enterprise Institute.

Perry said he began filing complaints with civil-rights offices in 2016, when he noticed that Michigan State University had a women-only lounge. The university shut it down and reopened it to all genders (a move it said was already planned following other complaints from men, and concerns about welcoming transgender students).

Perry believes he is responsible for many of the Education Department’s outstanding investigations. His work has inspired Kursat C. Pekgoz, a doctoral candidate in English at the University of Southern California, to file complaints of his own. (Pekgoz had been the subject of a Title IX sexual-harassment investigation, but has denied the accusations and said the investigation was unrelated to his complaints.)

Perry, as well as the Maryland-based organization Stop Abusive and Violent Environments, argues that single-sex programs violate Title IX, which bars institutions that receive federal funds from discriminating based on gender. In a report released this week, the organization said that 57 percent of the more than 200 colleges it studied offer gender-specific scholarships in a way that is “facially discriminatory.”

“They enforce any kind of discrimination against women, but they allow discrimination against men, in violation of Title IX’s clear prohibition of sex discrimination,” Perry said.

An Education Department spokesman confirmed that the Office for Civil Rights is investigating colleges including Princeton, Rice, and Yale Universities, and the University of Southern California, for possible discrimination against males on the basis of sex, and declined to provide further details because the investigations are active.

Distorting Title IX

Experts and advocates have argued that pressuring these programs into closure would flout the Education Department’s own regulations and distort the purpose of Title IX protections. Department regulations allow for affirmative-action programs “to overcome the effects of conditions which resulted in limited participation” in the past.

The American Association of University Women has pointed out the need for Title IX protections in many areas, including STEM fields, where women remain underrepresented.

Advocates for the programs also say there are real consequences for dropping them.

“In states where affirmative-action bans have been implemented for race-conscious admissions, we’ve seen enrollment for people of color drop,” Adaku Onyeka-Crawford, director of educational equity at the National Women’s Law Center, told NBC News. “And so we’re really concerned that doing away with gender-inclusive programs would see the same thing for women across the board.” (The university women’s group and the women’s law center did not respond to requests for comment on Thursday.)

When it comes to encouraging women to pursue STEM fields, the research is clearer in some areas than in others, said Shulamit B. Khan, a faculty member at Boston University who studies women and STEM.

Literature shows that having a role model who is knowledgeable in science or math, for instance, makes a young woman more likely to pursue those fields, Khan said. Data on single-sex programs are less clear. But she said they serve a valuable role in exposing women to fields they may not otherwise see themselves in.

“If your goal is to get more women in STEM, if you crack down on the programs, yes, you will harm it,” Khan said. “If they only have mixed-gender programs, it will probably end up with fewer women going into STEM.”

Source: https://www.chronicle.com/article/Women-Only-STEM-Programs/246996

Categories
Campus Trauma Informed Violence Against Women Act

Highlights from the ATIXA Position Statement on Trauma-Informed Methods

On August 22, the Association of Title IX Administrators – ATIXA – issued a Position Statement on Trauma-Informed Training and the Neurobiology of Trauma that exposes the many fallacies of “trauma-informed” concepts and methods: https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2019/08/20123741/2019-ATIXA-Trauma-Position-Statement-Final-Version.pdf

The Statement begins by quoting a claim that is often cited in trauma-informed training materials:

“Trauma leaves tracks on its victims. It is very difficult to fake or ‘act’ the sorts of symptoms [of trauma]. When someone displays these symptoms, this alone is evidence that they have been victimized.”

ATIXA delivers a strong rebuke to this claim: “Proffered as truth that a mere claim of trauma is proof of assault, this quote should be troubling to any rational mind. To assert that trauma cannot be faked is as flagrantly false a claim as asserting that trauma is proof of assault.”

The eight-page Statement goes on to address many of the flaws of the claims of trauma-informed proponents:

  • “Using a study of lab rats to reach any conclusion about the story of a victim of sexual assault is troubling..Do rats tell stories? Do they experience sexual assault?..there is science behind these ideas, but they are not empirical conclusions.”
  • “The ‘Neurobiology of Trauma’ should not significantly influence the way that colleges and schools evaluate evidence… improper use of trauma-informed methods turns trauma into evidence, which IS junk science and goes way too far.”
  • “application [of trauma-informed theories].. has gotten way ahead of the actual science… is being misapplied, and…some purveyors of this knowledge are politically motivated to extrapolate well beyond any reasonable empirical conclusions…”
  • There’s an “important distinction between practices that help an impacted party retrieve memory and avoid gratuitous re-triggering…and those [relying] on neurobiological theories to influence the interpretation of evidence.” Only the former is correct.

The ATIXA Statement concludes with this unequivocal message:

“The truth is that we understand perhaps 1/100th of 1% of what we need to know and may someday understand about how the brain responds to trauma. With such a nascent body of knowledge, most conclusions are premature. It is irresponsible to attribute much about how we interpret evidence to existing neuroscientific understandings of trauma, except to correlate scrambled memory encoding and retrieval with life-threatening incidents, and to see that flight/fright/freeze may be common reactions to such incidents. That is about it. Anything more than that is really theory, thus far unsupported by conclusive evidence.”

The ATIXA report may turn out to be a game-changer.

 

Quotes compiled by Cynthia Garrett, Esq.

Categories
Scholarships Title IX Equity Project

Colleges and Universities are Failing to Meet Their Title IX Obligations to Male Students

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

 Colleges and Universities are Failing to Meet Their Title IX Obligations to Male Students

WASHINGTON / August 20, 2019 – A review of scholarships at over 200 colleges and universities in 36 states reveals widespread discriminatory practices in the provision of sex-specific scholarships for male students. The analysis reveals 57% of institutions offer scholarships that facially violate provisions of Title IX that ban sex-based discrimination. Among the other schools, 27% were classified as Borderline, and only 16% were assessed as Compliant with Title IX requirements (1).

For example, Kent State University in Ohio offers two scholarships for male students, compared to 11 scholarships reserved for females. In Academic Year 2018-19, each male undergraduate student was awarded an average scholarship of $1,567, compared to an average scholarship of $2,208 to each female student, based on information supplied by the university to the SAVE Title IX Equity Project (2).

This $641 disparity represents a violation of the Title IX regulation, which requires that “the overall effect of the award of such sex-restricted scholarships, fellowships, and other forms of financial assistance does not discriminate on the basis of sex.” (34 CFR 106.37(b)(1))

Discriminatory sex-specific scholarships are only one example of widespread Title IX violations at institutions of higher learning. Many institutions offer programs that limit participation to female students, such as engineering and information technology programs.

Currently, the federal Office for Civil Rights is investigating complaints of such discriminatory programs at the following colleges and universities: Florida Institute of Technology, Georgia Institute of Technology, Boston College, Brown University, University of Rhode Island, Yale University, Indiana University, University of Minnesota, University of Wisconsin-Stout, Grand Valley State University, Michigan State University, Saginaw Valley State University, University of Michigan, Wayne State University, Duke University, Princeton University, Rutgers University, Rochester Institute of Technology, UC-Berkeley, UCLA, and University of Southern California (3).

Last week the Office for Civil Rights reached an agreement with Clemson University in South Carolina to end sex-discriminatory practices for three programs: Project WISE [Women In Science and Engineering] Summer Camp, WISE Choice, and STEM Connections (4).

In addition, hundreds of lawsuits have been filed by male students against colleges and universities alleging due process violations. To date, judges have ruled in favor of these students in 151 such cases (5).

As institutions of higher learning prepare for the new academic year, the Title IX Equity Project urges campus administrators to carefully review policies, procedures, and practices to assure male students are being treated equitably.

Citations:

  1. http://www.saveservices.org/equity/scholarships/
  2. Email dated August 15, 2019 from Kent State University Associate Counsel.
  3. http://www.saveservices.org/ocr-investigations/
  4. http://www.saveservices.org/wp-content/uploads/OCR-LETTER-CLEMSON-U-8.14.2019.pdf
  5. https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0
Categories
Affirmative Consent Sexual Assault

Affirmative Consent: New Paradigm for Sexual Behavior

We agreed to work with the Commission [on Domestic and Sexual Violence] on this Resolution [114], and that goes back to [Resolution] 115 at the mid-year meeting.  And [Commission head] Mark Schickman and some others appeared at the Spring meeting in Nashville. It was late and things were getting rushed and they brought the recommendation to us. While there was dissent on our Council, the Council did vote to approve and vote to co-sponsor.

As we got closer to this meeting, we realized that we hadn’t paid enough attention to far-reaching implications of this new Resolution. After it was submitted, we realized that the intent of the drafters was to adopt a new paradigm. Let me repeat that: A new paradigm. This changes the law entirely with respect to sexual behavior.

The report made it clear that the drafters were seeking an “affirmative consent” standard. The report always referred to work on this issue by ALI [American Law Institute], although the citations to ALI were back in 2014. No mention of 2015 or 2016. What it didn’t mention is that after two years of struggling with this new paradigm, at the annual ALI meeting in May of 2016, a formal vote was taken and the affirmative consent approach was rejected.

Now we received – and I think it may have gone to the House – a letter from 100 ALI members. It’s not an ALI letter, but it was signed by 100 ALI members who worked on these issues. And they said — I want to quote from parts of it:

“For reasons that have not been explained to us, the ABA ‘Report’ in support of Resolution 114 reveals no part of this history” – that is, the rejection in 2016. “Instead, the Report cites no ALI materials after 2014, and as a result, is highly misleading.”

“This is very troubling. The ABA should not consider moving forward with an important matter with a ‘Report’ purporting to justify the action that is so obviously deficient. This a matter of the essential integrity of the ABA. A vote based upon the current Report is not defensible because the ‘Report’ absolutely excludes all relevant information about ALI’s actual position while repeatedly claiming support from ALI.”

They said, in short, the report is based on “bad history and bad science,” and they respectfully suggested that it not be passed at this time by the House of Delegates.

There are some serious implications to that. I had one judge who heard about it remarked that if the contents of the report – what was left out of that report – had been submitted to a Court in a brief, it not only would have been stricken, but the attorneys might well have been sanctioned.

So the Executive Committee decided that we needed to review it and revisit it, and we did. The Executive Committee of the Criminal Justice Section voted unanimously to recommend to the full Criminal Justice Section Council that we withdraw our co-sponsorship and move to postpone it indefinitely, so we could revisit these issues more carefully and more thoroughly. We didn’t make those recommendations lightly.

Then it went to the full Council, and the full Council voted unanimously to pull our support, and instructed us to file this motion before you now.

For more information on ABA Resolution 114 and how it was defeated, see: http://www.prosecutorintegrity.org/sa/ali/ 

Categories
Affirmative Consent Due Process Trauma Informed

Will the ABA Reject Due Process?

In August 2014 the University of Tennessee-Chattanooga deemed student Corey Mock guilty of sexual assault, finding that in the disputed encounter he failed to prove he had obtained “affirmative consent” from the accuser. According to Mr. Mock’s unrebutted testimony, the female student’s actions during intercourse led him to believe that she had consented to sex. Mr. Mock sued the school, and a Tennessee judge ruled in his favor. “Affirmative consent,” the judge wrote, “is flawed and untenable if due process is to be afforded.” The standard “erroneously shifted the burden of proof” to the accused.

Mr. Mock’s experience is hardly unique. State laws in California, Connecticut and New York require educational institutions to find against students or personnel accused of sexual misconduct unless they can prove the accuser gave “affirmative consent,” meaning a positive manifestation by words or actions of consent to each sex act during an encounter. In practice, as Janet Halley of Harvard Law School has noted, these statutes authorize “proceedings in which the decision maker effectively presumes guilt and requires the accused to disprove it.”

In the past few years thinkers and politicians of diverse ideologies have recognized the excessively punitive nature of the American criminal justice system. Against this backdrop, it’s incredible that the American Bar Association’s House of Delegates plans this week to consider a resolution that would urge legislatures and courts to redefine criminal sexual assault and apply standards like the one in the Mock case.

The resolution, originally advanced by the ABA’s Criminal Justice Section and Commission on Domestic and Sexual Violence, says that the law should “define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact” and “provide that consent is expressed by words or action in the context of all the circumstances.”

Due-process advocates have denounced the proposal. The National Association of Criminal Defense Lawyers calls it a “radical change in the law” that “assumes guilt in the absence of any evidence regarding consent . . . merely upon evidence of a sex act with nothing more.” By “requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent,” the association contends, any law based on the proposal would violate the Due Process Clauses of the Fifth and 14th amendments. Scott Greenfield, a New York criminal-defense lawyer, put the point more bluntly: It would “result in the conviction of innocent men.”

To be sure, rape and sexual-assault laws long were outrageously lenient. Husbands had legal rights to force sex on their wives, and many women were held not to be rape victims because they had not resisted fiercely, at risk of life and limb. Mindful of this history, NACDL excluded from its criticism a clause urging rejection of “any requirement that sexual assault victims have a legal burden of verbal or physical resistance.” But the rest of the ABA proposal would give prosecutors who cannot prove sexual assault an easy way to coerce guilty pleas from men who have committed no crime.

Advocates of the proposal cite dubious science in support of diminishing the constitutional rights of the accused. The report justifying the resolution touts “current research on the neurobiology of trauma,” including studies of “frozen fright,” which allegedly occurs when “a person confronted by an unexpectedly aggressive partner or stranger succumbs to panic, becomes paralyzed by anxiety, or fears that resistance will engender even greater danger.”

These claims are based on circular reasoning, as Emily Yoffe notes in a September 2017 Atlantic article. She notes the researchers argue not only that “the absence of verbal or physical resistance, the inability to recall crucial parts of an alleged assault, a changing story . . . should raise questions or doubt about a claim,” but that “all of these behaviors can be considered evidence that an assault occurred.” As Ms. Yoffe recognizes, this type of “science” already has played a prominent role in promoting unfairness in campus Title IX tribunals. The University of Mississippi, for instance, trained sexual-assault adjudicators that even lying by an accuser should be interpreted as evidence that the accused is guilty. By such logic, Ms. Yoffe writes, “the accused is always guilty.”

A more elite legal group, the American Law Institute, had already considered this issue. The ALI’s members voted overwhelmingly to reject affirmative-consent language proposed by activists who have for years sought to revise the group’s Model Penal Code. Rather than acknowledge this dramatic vote, the ABA report suggests that the ALI’s decision “is not yet final.” That characterization is misleading at best: A letter signed by more than 100 ALI members to the ABA’s president insists that moving forward on such an “obviously deficient” record would question “the essential integrity of the ABA.”

On Saturday, in a highly unusual move, the Criminal Justice Section—whose membership includes prosecutors and defense lawyers—voted unanimously to rescind its co-sponsorship of the resolution. But unless the Commission on Domestic and Sexual Violence reverses its position and agrees to pull the offering, the ABA House of Delegates will vote. If the resolution is adopted, it will stain the reputation of the nation’s largest organization of lawyers.

Source: https://www.wsj.com/articles/will-the-aba-reject-due-process-11565559212

Categories
Affirmative Consent

ABA Resolution 114: It’s Not Dead Yet (Update)

Lara Bazelon tweeted that the ABA Criminal Justice Section unanimously voted to withdraw its support for Resolution 114 and ask the House of Delegates to table it. Great news, certainly, but this misbegotten mutt, even if it’s just the ABA and not an organization of any significance, isn’t dead yet. The NACDL opposed it. More than 100 members of the American Law Institute opposed it. I opposed it, as did pretty much anyone with even a passing familiarity with criminal law.

But not the ABA Commission on Domestic and Sexual Violence. As its chairman, Mark Schickman, made clear in an email, his quest to re-engineer sexuality in society would not be so easily stopped.

From: House of Delegates Discussion List <HOD@MAIL.AMERICANBAR.ORG> on behalf of Mark Schickman <schickman@FREELANDLAW.COM>
Reply-To: Mark Schickman <schickman@FREELANDLAW.COM>
Date: Thursday, August 8, 2019 at 6:42 PM
To: “HOD@MAIL.AMERICANBAR.ORG” <HOD@MAIL.AMERICANBAR.ORG>
Subject: Resolution 114 and the Campaign Against It

Dear Fellow Delegates:

At the Las Vegas meeting in February, the Commission on Domestic and Sexual Violence presented to you Resolution 115, providing  that (1) consent to sexual activity must be expressed by words or conduct.  and (2)  “active resistance” should not be a condition for legal protection.  As you will recall, we passed the second part and agreed to pull back the “consent” definition for six months — — until this meeting — — at the request of the Criminal Justice Section so that we could coordinate with them on a joint product.

​We and CJS spent two months doing so, drafting, editing  and Cosponsoring current Resolution 114, along with the Section of Civil Rights and Social Justice.  It stands for the proposition that “consent to sexual activity is expressed by words or conduct, in the context of all of the circumstances”.  It does not change the burden of proof or the presumption of innocence.  We believe that this straightforward principle is supported a wide majority of the house. The claim that it has been brought by surprise or without adequate time for review is  untrue, as this House knows;  the opponents will fight against it whenever it is presented — — now, a year from now, 100 years from now.

              The Principle Behind The Opposition

In the past weeks, several interest organizations including the National Association of Criminal Defense Lawyers (NACDL)  launched a letter and internet  campaign against this Resolution. The heart of the dispute is their objection to the core principle of this resolution, that assent to sexual activity is expressed by words or conduct in the context of all of the circumstances.They have mobilized their members and solicited mail and social media posts  to lobby House members to vote against Resolution 114.  We recognize  the centuries old assumptions upon which this opposition is based — that in our society, and in societies throughout history, sex is considered there for the taking. This resolution seeks to change those assumptions, to suggest that sex is not a matter of force or acquiescence but, rather, the right word is assent.  That is the modern trend of the law, and this resolution asks the ABA to support it. The opponents’  stated goal is to eliminate “ the divisive concept “ consent from the resolution; this point of principle cannot be avoided and will be presented to the House.

We disagreed with their view that “the law is not a vehicle to change social mores”; we think it is.  We also take issue with their regressive proposition that “the concept of affirmative consent contradicts common understanding” in the “volatile area of human sexual relations.”   Again, their campaign has history on its side, a long understanding that women were spoils of war, that rape of a woman a property offense against her husband if she were married and her father if she were not, and which  in some jurisdictions still protects forced sex in the absence of earnest resistance.  We DO want to contradict such anachronistic “common understandings”, and DO believe that the law is an appropriate vehicle to do so.  That is the true point of dispute

            The Empirical and Scientific Proofs of Multiple Fear Reactions

The letters and tweets challenge the biological reality of a victim being immobilized by fear or danger  as “red herring science” — a dismissive argument which may well convince a jury, but is plainly untrue.  There are several proven neurological and physiological bases for that fact. I have experienced moments being incapacitated by fear — haven’t you? It’s hard to pick one source to present, but see the training at https://www.youtube.com/watch?v=dwTQ_U3p5Wc&t=334s and scientific literature at https://www.sciencedirect.com/science/article/pii/S1053811917305268 or  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2489204/. For broad layman’s explanations, see https://www.psychologytoday.com/us/blog/sexual-assault-and-the-brain/201804/freezing-during-sexual-assault-and-harassment or http://www.washingtonpost.com/news/grade-point/wp/2015/06/23/why-many-rape-victims-dont-fight-or-yell/.  A specific rebuttal to the Emily Yoffe article  raised in the opponents’ recent posts and letters, published in Psychology Today, is attached.

People react differently to major stress.  Stress rapidly impairs the brain’s rational prefrontal cortex, shifting the brain to reflex and habit responses that are automatic and involuntary, and often immobile or passive, precluding resistance. Again, scientific support for this includes the work of Amy Arnsten, an influential Yale neuroscientist (Arnsten, A.F.T. (2009). Stress signaling pathways that impair prefrontal cortex structure and function. Nature Reviews Neuroscience, 10, 410-422.; Arnsten, A. F. (2015). Stress weakens prefrontal networks. Nature Neuroscience, 18, 1376-1385.; Arnsten, A. F., Lee, D., & Pittenger, C. (2017). Risky business: The circuits that impact stress-induced decision-making. Cell, 171, 992-993).  A review of the extensive behavioral and neuroscientific research on animals’ and humans’ reflexive immobility responses to inescapable danger (e.g., freezing, tonic immobility, and collapsed immobility) is published in   Kozlowska, K., et al. (2015). Fear and the defense cascade: Clinical implications and management. Harvard Review of Psychiatry, 23, 263-287).  One cannot  deny the often immobilizing effect of fear or danger.

            The Non Issues Raised in Opposition

The opposing groups covers their  opposition with  stated concerns which are no part of this resolution.  They say this resolution shifts the burden of proof, or eliminates the presumption of innocence; it does neither.  To be clear: using the definition in the resolution, the prosecution has to prove beyond a reasonable doubt that consent was absent. It remains the prosecutor’s burden to present such evidence, and to convince the jury beyond a reasonable doubt to believe it. Otherwise, the defendant gets acquitted; the defendant never needs to prove anything. Every procedural protection and presumption of the system remains. Beyond question, we agree it would be unconstitutional to do otherwise.

We have told this to the NACDL when it launched the instant opposition, and offered to state that proposition in the text  if that would eliminate its objection to the resolution.  The NACDL refused, as that obviously true proposition is not their actual concern. As they wrote, their problem is our use of the word “assent” and “the divisive concept” of requiring words or actions indicating consent.   The burden of proof and presumption of innocence remain in full force!

The opponents then suggests in passing, that this resolution presents a racial justice issue.  Of course, serious equal justice considerations pervade the criminal justice system as a whole, require remedy and should always be addressed. Here, white men most often commit rape, rape is the 5th most common crime charged against white men, and the 18th among people of color.  Importantly, women of color are less likely to report and less likely be believed when they are victims of sexual assault.  A report published by Georgetown Law Center found that “adults view Black girls as less innocent and more adult-like than their white peers” and they are  “perceived to be more independent, more knowledgeable about sex, and in less need of protection”. Reinforcing a rule requiring consent to sexual activity is a justice issue as much to people of color as it is to any segment of our society.

Finally, we proponents made the deliberate decision to make this resolution about its merits and not the ALI process; the issue here is principle, not the ALI.. But the opponents now argue that we focused insufficiently on the ALI and that the ALI’s product differs from ours, and that statement is half true.  The ALI engaged in the full, lengthy, detailed expert committee process for which it is known, taking comments and crafting a rule which embodied the need for words or acts of  consent.  When that product of the ALI process was submitted to the ALI membership for approval, it was subjected to the same lobbying as the HOD receives now; and  the membership did not adopt the committee report in its current draft.  As our report notes, the ALI’s revision of The Model Penal Code on Sexual Assault and Related Offenses is not complete, and we hope it ultimately adopts a rule requiring consent to sex. But this resolution is not about the ALI, but a much more important principle.

A small but organized opposition has taken to the Twittersphere and asked its members around the country to lobby the members of this House, and we have no doubt that this will continue for the next week. Typical of twitter campaigns, it uses buzzwords instead of reason, and polarization rather than analysis. We understand.  Entitlements are hard to lose, and this resolution seeks to limit one of the most longstanding entitlements in human history.  But it is neither radical nor  “divisive” to suggest that there should be assent to sexual activity, rather than simply a failure or inability to adequately resist.  It is the right proposition, and we look forward to presenting it to, and obtaining the approval of, the House, through our regular, reasoned process..

Best regards, and welcome to San Francisco.  Mark Schickman, Chair ABA Commission on Domestic and Sexual Violence.

To the extent anyone believed that this idiocy would be limited to campus and not extend into the real world, real courtrooms, let this outrageously disingenuous email remind you that even extremist groups like the ABA, trading off its legacy credibility, are dedicated to social re-engineering the law to achieve their progressive goals.

Update: From the Center for Prosecutor Integrity:

In addition to opposition by the NACDL and the ALI members who signed the letter, the following organizations have now come out against the Resolution:

And a growing number of editorials regarding ABA Resolution 114:

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American Bar Association Considers Defining All Sexual Contact as Rape

The American Bar Association (ABA) will be voting on a resolution that would urge state legislatures to adopt the controversial “affirmative consent” as the criminal definition of sexual consent at its annual meeting this week. Such a resolution is not merely symbolic, as the ABA sets academic standards for law schools and recommends legislation, prompting concerns from some legal experts.

The resolution reads,

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

Critics are troubled by the resolution. Samantha Harris of the Foundation for Individual Rights in Education asserts that the resolution virtually assumes all sex is nonconsensual unless consent can be proven. Legally, this would mean the burden of proof would fall on the accused. As observed by the Daily Wire, this is exceptional within the American legal system, as “no other crime requires the defense to prove a negative.”

Harris contends it would be “disastrous for due process” if the ABA passes the resolution.

The National Association of Criminal Defense Lawyers has also raised issue with the resolution. “NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent,” the group wrote. “The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence.”

According to criminal defense lawyer Scott Greenfield, this flipping of the burden of proof creates another legal quandary. He writes,

In flipping the burden of proof the resolution essentially renders sexual assault statutes to be strict liability crimes that focus only the victim and disregard the mental state of the accused. Criminal liability should rarely be based upon an act without considering the mental state of the accused. See Elonis v. United States, 575 US ____, 135 S.Ct. 2001 (2015). The affirmative consent doctrine focuses on the actions and mental state of the complainant without regard for the mental state of the accused.

The notion of “affirmative consent” is not new, as the state of California passed legislation setting “affirmative consent” as the standard on college campuses in 2014, prompting a number of other colleges and universities to follow suit. Affirmative consent laws and policies are continuing to make their way through states, according to this site.

California’s Senate Bill No. 967, dubbed the “yes means yes” law, reads,

An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Some colleges have taken “affirmative consent” policies so far as to classify kissing as sexual activity that can constitute sexual assault. Many of these policies have deemed non-verbal cues such as leaning forward opening one’s mouth, etc., as inadequate to affirm consent. And adding to the confusion, college student codes of sexual conduct differ from campus to campus, Timemagazine observed in 2014.

Predictably, the “affirmative consent” standard has resulted in a number of due process lawsuits from individuals wrongly accused of sexual misconduct.

Legal experts have taken issue with the standard as it criminalizes romantic touching and non-violent sex in the absence of affirmative consent in advance and fails to appropriately determine how accused persons can defend themselves. In 2015, the American Law Institute debated adopting the standard as a new section of the model penal code — noted by the Washington Examiner as “a highly influential document that has been adopted in whole or in part by many states’ legislatures — but concerns over the burden of proof and the documentation of true consent forced the group to table discussions.” It was revisited in 2016 and again in 2017, but received strong backlash within the organization. By 2018, it was no longer an agenda item for the Institute.

Yet the American Bar Association commission cited the American Law Institute proposal at length to justify its proposal, despite the fact that ALI’s proposal failed when it became clear it was not legally viable.

Greenfield contends that at the core of ABA’s proposal is hatred for men. “There’s no reason to remind the ABA that this gibberish resolution will result in the conviction of innocent men. That’s just the price of believing the woman, and they are totally willing to pay that price with other, innocent men’s lives,” he wrote in a blog post.

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Sex Without A Notarized Document Of Consent Is Teetering On Becoming A Thing Of The Past

Of course, even a notarized document doesn’t protect you, as the person you’re having sex with could say they withdrew consent mid-act, and you don’t have proof that you had consent to continue.

In short, this proposed new law is how to fuck any man over — because it’s mostly men who will get ensnared by the revision that’s being proposed, moving over “affirmative consent” from college campuses to the rest of the adult world.

Samantha Harris blogs for theFIRE.org:

In just a few days, the American Bar Association will consider whether to adopt a resolution urging state legislatures to adopt a criminal-law definition of consent similar to the “affirmative consent” standard increasingly popular on college campuses. Given the ABA’s reputation and influence, it would be disastrous for due process if this resolution were to pass.Here is the resolution (emphasis added):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

By making sex presumptively nonconsensual unless and until someone can produce evidence of consent, affirmative consent standards effectively shift the burden of proof to accused parties to prove themselves innocent.

From The College Fix’s Greg Piper on the guilty until proven innocent tack of this resolution and some of the groups that oppose it on that count:

Among the groups opposing the resolution is the National Association of Criminal Defense Lawyers, which says it would prove an offense occurred “merely upon evidence of a sex act with nothing more.”The resolution shifts the burden of proof to the accused for each act, undefined, within a larger sexual encounter, and “assumes guilt in the absence of any evidence regarding consent,” the association wrote last month.

“This radical change in the law would violate the Due Process Clause of the Fifth and
Fourteenth Amendments and the Presumption of Innocence,” the group argues. “The resolution will often force the defendant to testify in order to present evidence that consent was expressed.”

An essential bit from the NACDL link:

1. Burden-Shifting in Violation of Due Process and Presumption of Innocence: NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence. It offends fundamental and well-established notions of justice.

From Sam Harris’s excellent piece at FIRE:

Affirmative consent standards are already common in campus disciplinary proceedings. On campus, not only has affirmative consent proven confusing, but the state of due process and fair procedure is so bad that over the past eight years, more than 500 accused students have filed lawsuits alleging that they were not afforded even the most basic procedural protections before being found responsible for sexual misconduct. As high as the stakes are on campus — where students found responsible face the loss of educational and job opportunities as well as permanent stigma — they are higher still in the criminal context, where those found guilty face imprisonment.We hope that the ABA’s House of Delegates will reject this resolution as a grave threat to the due process rights of those accused of one of society’s most serious crimes.

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Top Legal Organization About To Adopt Dangerous ‘Affirmative Consent’ Resolution That Defines All Sex As Rape Unless Otherwise Proven

It’s been a few years since the dangerous “affirmative consent” standard has made headlines. Many colleges and universities began adopting the standard about half-a-decade ago, following the state of California’s example.
The wording changes from state to state and from school to school, but it all boils down to narrowly defining consent in such a way that it is impossible for anyone to actually have – and prove – consensual sex. These policies inevitably shift the burden of proof from the accuser to the accused, meaning the accused has to provethey obtained consent for an encounter that they saw at the time as consensual.

Proponents of the policies have never said how accused persons would be able to defend themselves from an accusation under “affirmative consent.” Without video evidence that one obtained consent throughout every physical and sexual interaction, the accused would have no way to defend themselves. Even that would be risky, since someone who claims they were too drunk to consent to sex could also say they were too drunk to consent to being recorded. Given how much weight an accusation holds in today’s “believe all women” society, a case of he said/she said would most likely default in favor of the accuser.

Legal groups, law professors, and attorneys were critical of the “affirmative consent” standard, yet schools and states adopted it anyway.

In 2015, the American Law Institute at its annual meeting debated the standardahead of what was supposed to be a vote on adopting a new section of the model penal code. The criticism against the standard outweighed the support, and the vote was delayed. A year later, ALI again attempted to hold a vote on a revised draft, yet further criticism delayed the vote again. In 2017, opposition precluded the group from adopting the standard once again. The draft was not included in ALI’s agenda in 2018.

But now the American Bar Association (ABA) appears to be picking up where ALI failed. At their annual meeting this week, the ABA will vote on a resolution that would urge state legislatures to adopt “affirmative consent” as the criminal definition of consent. Here’s the resolution:

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

As Samantha Harris of the Foundation for Individual Rights in Education noted, the resolution essentially makes “sex presumptively nonconsensual unless and until someone can produce evidence of consent.” This pushes the burden of proof onto the accused, who likely believed they had consensual sex and therefore did not need to keep documentation to prove it.

The National Association of Criminal Defense Lawyers condemned the ABA’s resolution for this very reason.

The NACDL also opposed ALI’s efforts, which are cited in the ABA’s resolution.

It is only sexual assault where the burden of proof has been flipped in recent years. No other crime requires the defense to prove a negative.