Categories
Campus Due Process

Rep. Shalala Tells Colleges Not To Change

When dreaded Secretary of Education Betsy DeVos withdrew the “Dear Colleague Letter” and its ensuing “guidance,” then issued new regs which were put through the rigors of Notice and Comment as required by law, heads exploded. Providing the accused with minimal due process on campus was tantamount to giving rapists a free ride, activists screamed.

But it begged the question, would any of this matter? Would colleges care what the regs provided, or would they ignore them, continue to apply rules that deprived  males any chance to defend themselves? Absent mandatory language in the regs, or court decisions like Doe v. Baum, who was going to make colleges change?

Appearing at The Atlantic Education Summit, Shalala — who served as president of the University of Miami from 2001 to 2015 — criticized DeVos for her department’s rollback of several Obama-era regulations and guidance documents, including those regarding Title IX.

“Many of these things that are coming out of the secretary’s office reflect someone that really does not understand the institutions or their experience or the traditions,” Shalala said, adding that “she’s a nice person, but boy she really is confused about what we’re doing out there.”

Donna Shalala, currently the congresswoman from Florida’s 27th district, and formerly Secretary of Health and Human Services, served as chancellor of the University of Wisconsin-Madison and president of the University of Miami. Her message to the summit was clear.

During the education summit, Shalala said she didn’t think “any institutions in this country are going to follow” DeVos’s changes and that Democrats “will try to overturn them.”

First, a representative in Congress calls for educational institutions to reject the regulations, despite court after court holding that they violate the constitutional rights of male students. Ironically, claiming “experience and tradition” as the piece DeVos is missing reflects the social engineering that was rammed down the throat of colleges at the behest of two bureaucrats during the Obama administration who circumvented law. Some tradition.

Second, she says what needs to be said, that should the Democrats regain the executive branch, they will “overturn” regulations that comport with the Constitution and return to unconstitutional process. So why bother to change? Or more to the point, hold out until 2020, when the Democrats will repeal the new regs and  restore the old guidance so you can return to depriving male students of due process.

What makes Shalala’s admonition to colleges that they should persist in denying male students due process—that they shouldn’t change despite the new regs, despite the voluminous judicial opinions holding the processes invented by OCR’s Russyn Ali and her successor, Catherine Lhamon, unconstitutional—shocking is that it’s a call for lawlessness. Hardly the only one, and hardly the only side doing so, but lawlessness nonetheless. And it comes as no surprise.

All of this is true, and yet, doesn’t quite address either the situation or mandate. The “arrogance” of the Dear Colleague letters doesn’t mean that colleges, their bureaucracies built around implementation of the letters and the indoctrinated students and faculty who have become adherents to Lhamon’s and Ali’s orthodoxy, will go away.

Even if this letter, issued lawlessly, is withdrawn, that does not mean colleges will change their tune. Sure, they won’t have the Dear Colleague letters to fall back on as an excuse, but that doesn’t mean academia doesn’t actually like, no love, what Lhamon rammed down their throats.

When the old guidance was withdrawn, and new regs proffered for comment, many took for granted that this would mean change, that colleges would end their war against male students for the sexual sanctity of believing their female students. Battles were huge, as activists geared up to perpetuate the lies that women never falsely accused, that there was an epidemic on campus, that women were being raped all the time, provided one left rape to the fertile imagination of empowered co-eds.

Shalala is right, of course. Should the Democrats prevail in 2020, the DeVos regs will be gone in a jiff. But it won’t mean much as long as colleges refuse to change in accordance with the new regs, court decisions or the Constitution. Many have raised the cost of lost Title IX actions percolating through the federal courts, but it’s a price colleges seem happy to pay to keep their female students from feeling uncomfortable. Well, colleges don’t actually pay it, since they pass along the cost to students in tuition.

The battle waged to end the Obama-era guidance was nasty and ugly, and cost a lot of young men their future, but to what end?

 It is a tale. Told by an idiot, full of sound and fury. Signifying nothing.

In a more rational world, perhaps a United States congresswoman would not call upon colleges to violate the Constitution, to act lawlessly for the sake of woman at the expense of men. In a more rational world, perhaps the discussions about why sex discrimination against male and deprivation of due process would make academics pause and think about the harm they are doing.

But there is little rational these days, and so there is no good reason why Donna Shalala shouldn’t take to the podium to implore that colleges ignore the regs, reject the law and persist in their discrimination. To explain why this is wrong seems to be a tale told by an idiot. They’ll fix it in 2020 anyway, when they regain control and petty constitutional concerns will no longer be an impediment to experience and tradition.

Source: https://blog.simplejustice.us/2019/05/15/rep-shalala-tells-colleges-not-to-change/

Categories
Campus Due Process

Tell Sen. Patty Murray: ‘Due process IS America’

Tomorrow  morning, the Senate HELP Committee will hold a hearing on ” Addressing Campus Sexual Assault and Ensuring Student Safety and Rights.” https://www.help.senate.gov/hearings/reauthorizing-hea-addressing-campus-sexual-assault-and-ensuring-student-safety-and-rights

In the past, Sen. Patty Murray, who is the highest ranking Democrat on the Committee, has pushed the “one in five” fake statistic in order to justify the existence of the campus Kangaroo Courts.

Somehow, Murray has forgotten that all Americans, including college students, are guaranteed due process by the Constitution.

So please telephone Murray’s office at (202) 224-2621. Tell her, “Due process IS America!”

Categories
Campus Due Process

PR: Most Americans Want Due Process on Campus, Despite Protests

Contact: Rebecca Stewart

Email: info@saveservices.org

Most Americans Want Due Process on Campus, Despite Protests

WASHINGTON / September 4, 2018 – Last week the New York Times leaked information about a sex discrimination regulation that the federal Department of Education is expected to issue this Fall. In response, campus activists assailed the policy as “downright cruel” and “willfully ignorant.” (1)

These statements contrast with the views of most Americans. According to a 2017 survey of 1,200 persons conducted by YouGov, persons overwhelmingly agree that students accused of a felony level crime should be afforded due process (2):

— A full 81% of respondents said the accused should have the right to know the charges against him.

— 71% of persons polled said accused students should be sanctioned under the “clear and convincing” standard of evidence.

— 61% said accused students should have the right to cross-examine their accusers.

— 67% agreed that students accused of crimes on campus should enjoy the same legal protections that would receive in a court of law.

These findings held across the entire political spectrum. For example, 58% of Democrats, 70% of Republicans, and 60% of Independents agreed that accused students should have the right to cross-examine their accusers.

Due process procedures serve to ascertain the truthfulness of an alleged sexual offense. The importance of these procedures was evident in the recent case of Nikki Yovino, former student at Sacred Heart University, who was convicted of falsely accusing two men of rape. On August 23, Yovino was sentenced to serve one year in jail (3).

SAVE’s Campus Equality, Fairness, and Transparency Act outlines a series of procedures designed to maximize fairness for both accusers and the accused (4). To date, the editorial boards of the New York Daily News and the Detroit News, as well as numerous commentators, have written editorials in support of bolstering campus due process protections (5).

Citations:

  1. http://endrapeoncampus.org/new-blog/2018/8/29/statement-on-new-york-times-reports-on-proposed-title-ix-guidance
  1. http://bipp.blogs.bucknell.edu/files/2017/09/BIPP-Higher-Ed-Toplines.pdf
  2. https://www.ctpost.com/news/article/Yovino-sentenced-to-1-year-in-false-rape-case-13177363.php
  3. http://www.saveservices.org/sexual-assault/cefta/
  4. http://www.saveservices.org/2018/09/media-reports-call-to-restore-due-process-on-campus/

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to campus sexual assault: www.saveservices.org

Categories
Campus Due Process

PR: Effort to Restore Due Process on Campus Gains Traction

Contact: Christopher Perry

Telephone: 301-801-0608

Email: cperry-at-saveservices.org

Sexual Assault: Effort to Restore Due Process on Campus Gains Traction

WASHINGTON / May 14, 2018 – Over the past seven months, leading liberal and conservative voices have worked to restore due process and fairness in campus sexual assault policies. Such initiatives reveal a growing trend being supported by lawmakers on both sides of the aisle.

Last September, Betsy DeVos, Republican Secretary of the U.S. Department of Education, rescinded the 2011 Dear Colleague Letter, a policy that was widely viewed as infringing on fundamental due process rights of accused students (1).  The following month, Democrat Jerry Brown, governor of California, vetoed a bill that would have imposed many of the Department of Education’s anti-due process requirements on California universities (2).

Likewise in Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators and adjudicators, a provision that had been derided as “junk science.” (3)

The pro-due process trend gathered momentum in 2018, as Supreme Court Justice Ruth Bader Ginsberg offered this commentary: “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. …There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” (4)

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill recently passed both the Maryland Senate and House with strong bipartisan support (5).

In Colorado, House Bill 18-1391 was approved in the House. But because it failed to include sufficient due process protections, the bill it was significantly amended by Republicans in the Senate, resulting in the bill’s indefinite postponement (6).

In West Virginia, House Bill 2825, a bill that would have mandated worrisome “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the state legislature (7).

In Mississippi, House Bill 1438, which was devoid of adequate due process protections, died in the Senate Judiciary Committee (8).

The editorial boards of two liberal-leaning newspapers likewise have called on colleges to involve criminal justice officials to investigate felony-level crimes. In January, the Detroit News opined, “Federal, state and campus policy regarding sexual assault should change to treat it as the serious crime it is, and assure that it is probed by experienced, professional investigators independent of the university.” (9) Last month, the St. Louis Post-Dispatch board issued a similar plea: “The pain lives on at universities whenever sex-abuse cases are handled quietly in-house rather than by competent legal authorities.” (10)

A summary of the current status of the state-level sexual assault bills introduced in 2018 is available on the SAVE website (11). In Congress, both Republican and Democratic lawmakers have spoken out on the need for due process and to strengthen the role of the criminal justice system (12).

SAVE urges state and federal lawmakers to recognize the growing trend for impartial and fair proceedings in campus sexual assault cases.  SAVE offers a model bill titled the Campus Equality, Fairness, and Transparency Act (13).

Citations:

  1. https://www.ed.gov/news/press-releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct
  2. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/california-gov-jerry-brown-vetoes-proposal-to-codify-federal-regulations-on-campus-sexual-harassment/?utm_term=.9d0d588c4798
  3. https://www.thecollegefix.com/post/39099/
  4. https://www.theatlantic.com/politics/archive/2018/02/ruth-bader-ginsburg-opens-up-about-metoo-voting-rights-and-millenials/553409/
  5. https://legiscan.com/MD/bill/SB607/2018
  6. https://leg.colorado.gov/bills/hb18-1391
  7. http://www.wvlegislature.gov/Bill_Status/bills_history.cfm?INPUT=2825&year=2017&sessiontype=RS
  8. http://billstatus.ls.state.ms.us/2018/pdf/history/HB/HB1438.xml
  9. https://www.detroitnews.com/story/opinion/editorials/2018/01/20/campus-rape-editorial-michigan-state-nassar/109650888/
  10. http://www.stltoday.com/opinion/editorial/editorial-court-of-law-not-a-campus-adjudication-panel-is/article_c9660e70-e8c9-51e4-a7a9-dbec9fa2cf1f.html
  11.  http://www.saveservices.org/sexual-assault/state-legislation/
  12. http://www.saveservices.org/sexual-assault/lawmakers/
  13. http://www.saveservices.org/sexual-assault/cefta/

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

Categories
Campus Due Process Sexual Assault

PR: Supreme Court Justice Ginsburg, Joined by Dozens of Federal and State Judges, Calls for Due Process in Campus Sex Proceedings

Telephone: 301-801-0608

Email: info@saveservices.org

Supreme Court Justice Ginsburg, Joined by Dozens of Federal and State Judges, Calls for Due Process in Campus Sex Proceedings

WASHINGTON / February 20, 2018 – In a recent interview for The Atlantic, Supreme Court Justice Ruth Bader Ginsburg affirmed the need for due process in campus sexual assault proceedings. In addition, Ginsburg clarified that due process protections are not incompatible with aspirations for gender equality.

Asked, “What about due process for the accused?”, Ginsburg gave this reply: “Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” [emphasis added]

When the interviewer sought clarification whether “some of those criticisms of the college codes valid?”, Ginsburg provided this unequivocal answer: “Do I think they are? Yes.”

Queried about her thoughts how to balance the values of due process against the principle of sex equality, Ginsburg explained, “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

Ginsburg’s sentiments on this issue have been echoed in recent rulings issued by dozens of federal and state judges.

Since 2012, over 200 lawsuits by students accused of sexual assault have been filed against colleges and universities. The SAVE report, Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases, documents that in a majority of cases, judges have ruled in favor of the accused students (1). To date, 79 of these lawsuits have resulted in decisions by state and federal judges against the defendant university (2).

Justice Ginsburg’s comments were published in the February 15, 2018 edition of The Atlantic (3).

Citations:

  1. http://www.saveservices.org/wp-content/uploads/Sexual-Misconduct-Lawsuits-Report2.pdf
  2. https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0
  3. https://www.theatlantic.com/politics/archive/2018/02/ruth-bader-ginsburg-opens-up-about-metoo-voting-rights-and-millenials/553409/

SAVE (Stop Abusive and Violent Environments) is working for effective and fair solutions to sexual assault, sexual harassment, and domestic violence: www.saveservices.org

Categories
Campus DED Sexual Assault Directive Due Process Office for Civil Rights Press Release

PR: Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

Contact: Christopher Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

WASHINGTON / August 14, 2017 – Last week the University of Georgia Board of Regents approved wide-ranging changes in the sexual assault policies at the campuses it oversees. The revisions were designed to strengthen oversight, assure a consistent process for all cases, and place more emphasis on prevention and education (1).  The changes were made in response to developments in the Title IX landscape that are occurring across the nation.

Stop Abusive and Violent Environments (SAVE) has identified eight shifts in the policy landscape that have emerged in the past 12 months. SAVE invites administrators to review these developments and make necessary updates to campus policies:

  1. State legislation. Responding to reports of unconstitutional practices on campuses, state lawmakers have introduced 22 bills designed to restore free speech or due process protections to college students. To date, eight of these bills have been passed into law in Colorado, Nevada, North Carolina, North Dakota, Tennessee, Utah, Vermont, and Virginia (2).

 

  1. Liability risks. The number of lawsuits by accused students is on the rise. Since 2013, judges have issued rulings on 55 lawsuits filed against universities that were at least partly favorable to the accused student (3). Last week it was reported that an average of $187,000 is spent per case filed by accused students (4).

 

  1. “Victim-centered” investigations. Investigations based on the “always believe the victim” model are often implicated in lawsuits by accused students against universities. An analysis of these lawsuits concluded that “victim-centered” approaches “are inconsistent with the most basic notions of fairness, repudiate the presumption of innocence, and are likely to lead to wrongful determinations of guilt.” (5)

 

  1. OCR complaints by identified victims. Following issuance of the Dear Colleague Letter in 2011, thousands of identified victims have filed complaints with the Office for Civil Rights alleging mistreatment by campus officials. Some identified victims claimed their experience with the campus adjudication process was more traumatic than the original assault (6).

 

  1. Administrator concerns. John McCardell, Vice Chancellor of the University of the South at Sewanee, Tennessee, recently charged the OCR’s Dear Colleague Letter has “imposed on entities ill-trained or equipped for the task, a quasi-judicial role, with the implication that ‘justice,’ however defined, can be satisfactorily rendered through processes that cannot possibly replicate a genuine legal proceeding.” (7) An Inside Higher Ed article on the annual meeting of the National Association of College and University Attorneys reported, “Many college and university officials felt overregulated by the Obama administration, and have expressed interest in seeing that oversight eased.” (8)

 

  1. OCR investigations. In June, the Office for Civil Rights announced that it will narrow its investigational approach to focus only on the specific allegations of the complaint, not on cases that have been previously resolved by the college (9).

 

  1. Expert reports. Five independent reports have recently called for an overhaul of the campus adjudication system (10):
  1. American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
  2. SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
  3. NCHERM Group: Due Process and the Sex Police
  4. American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
  5. Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It

 

  1. Editorial criticisms. Thus far in 2017, over 300 editorials have been published at various newspapers and internet sites criticizing the recurring due process violations on campuses (11).

Citations:

  1. http://www.saveservices.org/2017/08/university-of-georgia-vice-chancellor-responds-to-significant-misinformation-contained-in-inside-higher-ed-article/
  2. http://www.saveservices.org/wp-content/uploads/State-FP-and-DP-Legislative-Analysis2.pdf
  3. https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0
  4. http://www.chronicle.com/article/Lawsuits-From-Students-Accused/240905
  5. http://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf
  6. http://www.saveservices.org/wp-content/uploads/Six-Year-Experiment-Fails-to-Make-the-Grade.pdf
  7. http://www.saveservices.org/wp-content/uploads/Six-Year-Experiment-Fails-to-Make-the-Grade.pdf
  8. https://www.insidehighered.com/news/2017/06/28/trump-administration-civil-rights-officials-promise-colleges-fairer-regulatory
  9. https://www.propublica.org/documents/item/3863019-doc00742420170609111824.html
  10. http://www.saveservices.org/sexual-assault/ocr/
  11. http://www.saveservices.org/sexual-assault/editorials/2017/

SAVE (Stop Abusive and Violent Environments) is working to restore free speech and due process on college campuses: www.saveservices.org

Categories
Due Process Free Speech

PR: As Campus Unrest Spreads, Legislators Seek to Restore Free Speech and Due Process

Contact: Stephen Coleman

Telephone: 301-801-0608

Email: scoleman@saveservices.org

As Campus Unrest Spreads, Legislators Seek to Restore Free Speech and Due Process

WASHINGTON / June 5, 2017 – In the wake of widening campus protests that have sometimes turned violent, legislators in numerous states are taking steps to assure free speech and due process. These bills have generally enjoyed broad-based bipartisan support.

Thus far in 2017, governors in four states have signed into law bills that bar free speech zones or otherwise strengthen free speech on campus (link to the actual bill is embedded in the state’s name):

Similar free speech bills have been proposed in CaliforniaIllinoisLouisianaMichiganNorth CarolinaTexas, and Wisconsin.

Enhanced due process in campus sexual assault cases has been the focus of bills proposed in three states this year:

  • Georgia — HB 51 seeks to have allegations of campus sexual assault referred to local criminal justice authorities for investigation and adjudication.
  • North Carolina — HR 777 seeks to guarantee accused students’ fundamental due process rights.
  • Utah —  HB 326 sought to enhance reporting to law enforcement, and HB 284 afforded accused students the right to active counsel.

To date, none of these bills has been signed into law.

In Washington, student protesters at Evergreen State College harassed and screamed at a White professor for not leaving campus on a “Day of Absence.” The school was closed this past Friday after a caller threatened to “execute as many people as I can.”

SAVE urges legislators to continue efforts to reinvigorate constitutional principles by strengthening free speech and due process on campus.

SAVE (Stop Abusive and Violent Environments) is working for practical and effective solutions to campus sexual assault: www.saveservices.org

Categories
Campus Due Process False Allegations Sexual Assault

PR: Federal Directive Triggered Spurt of Lawsuits Against Universities For Alleged Mishandling of Sexual Assault Cases, Report Says

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Federal Directive Triggered Spurt of Lawsuits Against Universities For Alleged Mishandling of Sexual Assault Cases, Report Says

WASHINGTON / September 7, 2016 – A report released today reveals a 2011 U.S. Department of Education sexual harassment directive led to a dramatic increase in the number of lawsuits alleging mishandling of allegations of sexual assault on campuses. Titled “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases,” the report found that the number of lawsuits by students tripled over an eight-year period.

During the period 2006-2010, a leading insurance company received an average of 52 claims per year from alleged victims of sexual assault and from students who asserted they were wrongfully expelled for sexual assault. By 2013, the number increased  to 154 claims. Claims by students alleging lack of due process increased at an even higher rate, increasing from 10 lawsuits in 2013 to 53 in 2015.

These claims represent a growing liability risk for colleges and universities. During the period 2006 to 2010, payments to accused students represented 72% of all expenses for legal fees and payments to persons alleging mishandling of sexual assault cases by campus disciplinary committees, according to a leading insurance company. In July, Georgia Tech officials agreed to pay a male student $125,000 to settle a case in which he had been accused of sexual assault(1). Earlier this year, a former University of Montana quarterback received a $245,000 settlement for the university’s “unfair and biased” rape investigation (2).

The report provides a detailed analysis of 30 lawsuits in which a state or federal court ruled at least partly in favor of the accused student. For each of the 30 cases, the report identifies the causes of action. Among the most common causes of action, an allegation of lack of due process was successful in eight out of 11 cases (73%), followed by breach of contract (62%), Title IX violation (54%), and negligence (33%).

The report also details the relief requested for each lawsuit. Among the 30 lawsuits, a total of 198 types of relief were requested. The three

most commonly requested types of relief requested were reversal of the expulsion/ finding of guilt, just and proper, and reimbursement of attorneys’ fees.

The report highlights the most significant procedural and policy deficiencies identified in the judicial decisions. The deficiencies pertained to weak qualifications of university adjudicators, inappropriate use the word “victim,” selective enforcement of Title IX, investigational biases, weak cross-examination provisions, unfair appeal procedures, and affirmative consent policies.

The report notes that alleged victims of sexual assault have prevailed in numerous lawsuits, as well. The report concludes by noting the fundamental incompatibility between the requirements of the federal Department of Education 2011 Dear Colleague Letter and the mission and capabilities of colleges and universities.

Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases represents the first detailed, quantitative analysis of sexual assault lawsuits filed by accused students. The report can be viewed here: http://www.saveservices.org/reports/

Citations:

  1. http://www.ajc.com/news/news/local-education/georgia-tech-settles-two-lawsuits-involving-sexual/nr4qc/
  2. https://www.washingtonpost.com/news/morning-mix/wp/2016/02/17/montana-quarterback-receives-245k-settlement-for-universitys-unfair-and-biased-rape-investigation/

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

Categories
Accountability Accusing U. Affirmative Consent Due Process Press Release Rape-Culture Hysteria Victims

PR: American Law Institute Pulls the Plug on Affirmative Consent

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

Categories
Campus Due Process

PR: Judge Issues Scathing Decision Against Brandeis U.; Ruling is Latest in String of Cases Favoring Due Process

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Judge Issues Scathing Decision Against Brandeis U.; Ruling is Latest in String of Cases Favoring Due Process

WASHINGTON / April 5, 2016 – The Massachusetts District Court has issued a strongly worded decision, ruling in favor of a student accused of sexual misconduct. The case is the most recent is a series of legal rulings supporting the need for stronger due process measures in campus sexual misconduct cases.

The case involved a same-sex relationship between two male students attending Brandeis University in Massachusetts. Following a 21-month long romantic relationship, John Doe was accused of “numerous inappropriate nonconsensual sexual interactions.” (1) The college proceeding led to a disciplinary warning and permanent notation in his educational record stating Doe had committed “serious sexual transgressions.” Doe filed a lawsuit alleging breach of contract, defamation, and other violations.

Writing on behalf of the District Court, Judge Dennis Saylor highlighted the basic unfairness of the University engaging an experienced attorney, while it expected “a student, approximately 21 years old, with no legal training or background, to defend himself, alone.”

The Court chided the university for its description of the accuser as a “victim,” noting, “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

Judge Saylor was especially critical of the university investigator’s finding that Doe had violated the university’s affirmative consent policy because “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.”

The judge also questioned the University’s use of a preponderance of evidence standard of proof, which he viewed “as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.” The District Court concluded, “Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

The Brandeis decision is the most recent in a series of rulings that favor stronger due process protections for accused students at Appalachian State University, Brown University, University of California-Davis, University of California-San Diego, Cornell University, George Mason University, University of Michigan, Middlebury College, Pennsylvania State University, Salisbury University, University of Southern California, University of Tennessee-Chattanooga, and Washington and Lee University. (2)

(1)   https://kcjohnson.files.wordpress.com/2013/08/brandeis-decision.pdf

(2)   http://www.saveservices.org/sexual-assault/court-decisions/

 

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