Category: Sexual Assault

PR: How ‘Victim-Centered’ Investigations Undermine the Presumption of Innocence and Victimize the Innocent

Post author By saveadmin
Post date September 19, 2016

Contact: Gina Lauterio
Email: glauterio@prosecutorintegrity.org

How ‘Victim-Centered’ Investigations Undermine the Presumption of Innocence and Victimize the Innocent: Upcoming Teleconference

WASHINGTON / September 19, 2016 – A national teleconference will be held on the topic, “How ‘Victim-Centered’ Investigations Undermine the Presumption of Innocence and Victimize the Innocent.” The event will address how “victim-centered” investigations remove the presumption of innocence and greatly increase the risk of a wrongful finding of guilt. The teleconference will be held on October 4 at 1:00 to 4:00 pm, Eastern time.

The Department of Education has repeatedly issued directives calling for equitable campus investigations. In 2001 the Office for Civil Rights issued its Revised Sexual Harassment Guidance mandating that universities undertake “adequate, reliable, and impartial investigation of complaints.” Likewise, the OCR’s 2011 Dear Colleague Letter on campus violence explained, “a school’s investigation and hearing processes cannot be equitable unless they are impartial.”

In contrast, victim-centered investigations are based on the assumptions of “start by believing” and “always believe the victim.”

The teleconference will address victim-centered investigations on both college campuses and in the criminal justice setting. The Forum will consist of presentations by leading investigators, attorneys, and other experts:

Cynthia Garrett: Welcome and Introduction
Christopher Perry: What is the Problem with Victim-Centered Investigations?
Jerry Rogoff: The Psychological Effects on Persons Wrongfully Found Guilty of Sexual Misconduct
Carolyn Martin: My Lawsuit to End Investigative Bias at the Department of the Navy
Claudia Whitman: How to Botch a Criminal Investigation in Ten Easy Steps
Michael Conzachi: University of Texas Blueprint for Injustice

Harvard Law School professor Jeannie Suk describes the always-believe-the-victim approach as a “near-religious teaching” that is likely to harm rape victims: “When the core belief is that accusers never lie, if any one accuser has lied, it brings into question the stability of the entire thought system, rendering uncertain all allegations of sexual assault.” http://www.saveservices.org/sexual-assault/investigations/

The teleconference, sponsored by the non-profit Center for Prosecutor Integrity, will be available free of charge. Registration information will be made available here: http://www.prosecutorintegrity.org/wrongful-conviction-day/forum/

CEFTA Sexual Assault

Most College Rapists Never Spend a Day in Jail

Post author By saveadmin
Post date September 13, 2016

Contact: Chris Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

Most College Rapists Never Spend a Day in Jail: SAVE Calls on Lawmakers to End Campus ‘Kangaroo Courts’

WASHINGTON / September 13, 2016 – Two weeks after former Stanford University student Brock Turner was released from jail after serving a 3-month sentence for raping an unconscious woman, members of the public continue to express outrage and concern that campus rape is not being taken as a serious problem.

SAVE urges lawmakers to consider the lessons of the Turner case:

Rape is a heinous offense, and needs to be treated that way.
Local criminal justice authorities – not the Stanford University disciplinary committee – were the appropriate persons to handle the case.
Alcohol abuse is a major contributor to sexual assault, and binge drinking needs to be addressed.

Unfortunately, few of the bills debated in state legislatures in 2016 addressed any of these factors. Instead, most bills espoused unproven approaches such as affirmative consent, evoking concerns about the erosion of the presumption of innocence (1).

To rectify this shortcoming, SAVE is today announcing a new model bill titled the Campus Equality, Fairness, and Transparency Act (2). CEFTA encourages the involvement of local criminal justice authorities and supports the rights and interests of both the complainant and accused student.

CEFTA requires universities to implement policies to reduce alcohol and drug abuse, calls on universities to use justice-centered investigative procedures, and delineates a series of due process protections for the accused student.

CEFTA also contains a section that provides clear-cut definitions of a series of graded sexual offenses. This addresses the trend of universities to create definitions of sexual misconduct that are increasingly broad. Such definitions encourage universities to regard allegations of “micro-aggressions” on par with allegations of rape, thus trivializing the rape problem. Vague definitions also make it more difficult for accused students to defend themselves from false allegations.

In 2011 the federal Department of Education issued a Dear Colleague Letter directing that all campus sexual assault cases be handled by campus sex tribunals. Five years later, these committees are often derided as “Kangaroo Courts” that at most, can only expel sexual offenders. As a result, a majority of campus rapists are never sentenced to time in prison.

Three national polls show a strong majority of Americans believe college rapes should be handled by the criminal justice system, not campus sex tribunals (3).

Lawmakers who are potentially interested in becoming sponsors of the Campus Equality, Fairness, and Transparency Act in the 2017 legislative session should contact Gina Lauterio, Program Director, at glauterio@saveservices.org

Citations:

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

Post author By saveadmin
Post date September 7, 2016

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:

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

Affirmative Consent Sexual Assault

PR: The End of Affirmative Consent? SAVE Calls on Lawmakers to Enact Meaningful Solutions to Campus Sexual Assault

Post author By saveadmin
Post date August 16, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

The End of Affirmative Consent? SAVE Calls on Lawmakers to Enact Meaningful Solutions to Campus Sexual Assault

WASHINGTON / August 16, 2016 – A recent study on affirmative consent practices found so-called “yes-means-yes” policies bear little relationship to the reality of sexual foreplay among college students. Based on interviews with hundreds of California students, sexual encounters reportedly “just happened” following, for example, a nuzzle of the neck or tug on a partner’s sweatpants (1).

In the wake of a series of judicial, policy, and legislative setbacks, the research casts further doubt on the value of affirmative consent policies, SAVE says.

In March, a federal District Court ridiculed the Brandeis University affirmative consent policy, which also applies to students in long-term committed relationships. Judge Dennis Saylor wrote, “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.” (2)

Previously, a judge had ruled the University of Tennessee-Chattanooga’s affirmative consent standard was unconstitutional because the rule “erroneously shifted the burden of proof” to the defendant, robbing the student of his due process rights. (3)

In May the membership of the prestigious American Law Institute, by a four-to-one margin, voted down a proposal to make affirmative consent the centerpiece of a proposed overhaul of its Model Penal Code for Sexual Assault. (4)

In July, it was reported that this year, six states have failed to adopt proposed laws requiring colleges to implement affirmative consent policies. The six states are Hawaii, Iowa, Maryland, Minnesota, Missouri, and North Carolina. (5)

Former ACLU president Nadine Strossen charges, “These affirmative-consent rules violate rights of due process and privacy…Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.” (6)

Disputing the claims of campus activists who claim affirmative consent policies can curb campus rape, columnist Ashe Schow recently wrote, “a standard that allows consensual sex to be reinterpreted or exaggerated into rape does nothing to help real victims.” (7)

SAVE has developed a bill that promotes basic reforms. Titled the Campus Equality, Fairness, and Transparency Act (CEFTA), the bill seeks to curb alcohol abuse on campus and encourages referral of campus sex cases to criminal justice authorities (8).

Citations:

SAVE is working for practical and effective solutions to campus sexual assault: www.saveservices.org

Campus False Allegations Sexual Assault

No Harassment, No Victim, No Investigation. Expelled Anyway.

Post author By saveadmin
Post date August 3, 2016

Jack Hunter

August 8, 2016

As a college student, I earned a degree in Law Enforcement, but I ended up pursuing a successful business career. At the age of 52, I decided I wanted to become a volunteer deputy at the local Sheriff’s Office.

But first I had to complete a rigorous vetting process, which involves the same procedures as for a full-time officer. The evaluation included a 200-hour background check, physiological testing, and a voice stress analysis. I passed all the checks and took my oath to uphold the Constitution.

After two years serving as an auxiliary deputy, I decided I wanted to qualify for more advanced assignments. So I enrolled in the Ohio Peace Officer Training Academy, which is affiliated with Kent State University. My wife of 20 years and two teenage daughters were all committed to helping get Dad through school.

Four months into the program things were progressing well, other than the ribbing I occasionally endured about my age and being called the class know-it-all because I answered many of the Instructors’ questions.

One of our classes involved training on deadly force, which covers the protective procedures utilized when an officer is under attack. One student, playing the perpetrator, crouches over another student, playing the officer, and pretends to strike the officer in the face. In self-defense, the officer rolls the perpetrator over, changing positions to neutralize the threat.

For purposes of this training exercise, I was the designated “perpetrator” and a female student in the class the designated “officer.” The demonstration proceeded uneventfully and the class dismissed.

But at the next class, I was called out of the room and escorted to the administrator’s office. At that time, I was accused of “inappropriate contact” with the female cadet during the training demonstration.

Oddly, the complaint was not filed by the female student who had participated in the training exercise, or by any of the three instructors who closely observed our every move. Instead, the complaint came from another student who claimed he witnessed this “inappropriate” contact. None of the other 25 students watching the demonstration noticed anything out of the ordinary.

Adding to the irony was the fact that this female classmate and I were friends. She often solicited my help with her classwork. Just 20 minutes before I was summoned to the office, she had joined me and another student for lunch.

Now, I found myself being escorted out of the building.

Three days later the Investigator sent me a text message informing me that I was being terminated from the school. Three weeks the Termination Letter arrived. The letter contained accusations of actions that had never occurred and for which no substantiation was provided. The letter concluded with these blunt words: “No Appeal.”

Stunned and shocked, I requested an appeal. The university legal counsel directed me to the Ohio Peace Officer Training Academy, which in turn sent me back to the university. After a year of repeated requests, the hearing was granted. But the school refused to return my calls to answer questions how the hearing would be conducted.

In Kafkaesque manner, no written charges were presented at the hearing. I was not allowed to call anyone to speak on my behalf.

Previously the Investigator, a sitting police officer, had claimed a written statement existed to justify his actions. But at the hearing, I learned that no written statements were taken at the time of the alleged incident. Indeed, the Investigator had never even spoken to the alleged “victim.”

By definition, this represents a falsification of the evidence.

I then contacted the college dean, the Ohio Board of Regents, and others to review the finding in hopes of changing the outcome, without success.

These events have imposed unimaginable hardships on me and have taken a heavy toll on my family. The emotional damage has been devastating. I am now approaching two years in counseling to deal with the feelings of betrayal of everything I believed in. I had to cash in my retirement to cover legal costs that have already exceeded $20,000.

Needless to say, the Training Academy’s actions have destroyed my dream to work in law enforcement. To this day, I remain dumbfounded as the Ohio Peace Officer Training Academy is training future police officers, many of whom will one day become investigators of sex-related crimes.

Campus Sexual Assault

PR: Campus Sexual Assault: Lawmakers Abandon Affirmative Consent, Turn to Traditional Law Enforcement Approaches

Post author By saveadmin
Post date July 19, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Campus Sexual Assault: Lawmakers Abandon Affirmative Consent, Turn to Traditional Law Enforcement Approaches

WASHINGTON / July 19, 2016 – Responding to high-profile cases at Stanford University, Vanderbilt, Baylor, and elsewhere, Democratic and Republican legislators are beginning to enact laws that emphasize traditional criminal justice approaches to curbing campus rape. Lawmakers have largely abandoned consideration of affirmative consent policies, which require intimate partners to indicate agreement at every step of sexual activity.

In the wake of the Stanford rape case, California lawmakers have begun debating whether to expand the definition of rape and establish minimum sentencing requirements (1). In Missouri, a bill was enacted on July 1 that directs universities to enter into a memorandum of understanding with law enforcement on sexual assault policies (SB 921) (2). Laws designed to strengthen the reporting of sexual assault cases to local law enforcement were enacted earlier this year in Hawaii (3) and Virginia (4).

In Congress, the House Judiciary Committee approved the Survivor’s Bill of Rights Act on July 7 (HR 5578). The bipartisan bill provides protections and access to a legal process for sexual assault survivors on campus and elsewhere (5).

Affirmative consent proposals made little legislative headway in 2016. In six states, affirmative consent bills failed to be approved before the legislature adjourned for the year: Hawaii (HB 597 and SB 3119), Iowa (HSB 637 and SF 2195), Maryland (HB 1142), Minnesota (HF 3100 and SF 3088), Missouri (SB 626), and North Carolina (HB 474).

Affirmative consent bills have been introduced three other states where legislatures are still in session – Michigan (HB 4903 and SB 512), New Jersey (A 2271), and Pennsylvania (SB 1005) — and the final outcome of these bills remains uncertain. Only in Connecticut was an affirmative consent bill for college students (HB 5376) enacted into law, but the bill does not define “sexual activity,” leaving the practical impact of the law in doubt.

SAVE has developed a bill that supports the rights of accusers and the accused. Titled the Campus Equality, Fairness, and Transparency Act (CEFTA), the bill encourages the referral of campus sex cases to local criminal justice authorities for investigation and adjudication (6).

The American College of Trial Lawyers recently issued a statement describing campus sex disciplinary procedures as “demonstratively unfair to the accused, with no right to representation or cross-examination.” (7)

Citations:

SAVE is working for fair, balanced, and constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Sexual Assault

PR: Stanford Sex Case Highlights Dangers of Campus Rape Adjudications

Post author By saveadmin
Post date June 14, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Stanford Sex Case Highlights Dangers of Campus Rape Adjudications

WASHINGTON / June 14, 2016 – The recent sentencing of Brock Turner, former Stanford University student convicted on three counts of felony sexual assault, has stoked national outrage, and refocused attention on the proper role of the criminal justice system in handling campus sex crimes. Turner was sentenced to six months in jail for his sexual assault of an unconscious woman.

The letter written by the victim has registered over 16 million views (1); a petition calling for the impeachment of the presiding judge has generated over one million signatures (2); and Vice President Joe Biden has penned an Open Letter to the woman (3).

The case has also stoked public awareness of the shortcomings of campus committees in handling felony-level crimes.

Washington Examiner writer Ashe Schow explained, “the worst thing a campus can do to someone like Turner is ban him from campus, leaving him free to prey on off-campus victims.” (4)

Writing in the Washington Post, KC Johnson and Stuart Taylor noted, “the Turner case shows that the best way to deal with a campus sexual assault problem is to rely on law enforcement professionals to protect women and to pursue justice, not on campus disciplinary systems run by amateur sex bureaucrats.” (5)

Spotlighting the role of binge drinking, National Review columnist Mona Charen decried how campus hook-up culture is the “greatest petri dish for enabling rape and sexual assault imaginable.” (6)

SAVE has recently released a bill, the Campus Equality, Fairness, and Transparency Act (CEFTA), which encourages the referral of campus sex crimes to criminal justice authorities, and requires colleges to implement policies to curb binge drinking (7).

SAVE is working for evidence-based 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

Campus Sexual Assault

PR: ‘Something is going seriously wrong’: Colleges Grapple with Wave of Sexual Assault Lawsuits

Post author By saveadmin
Post date April 18, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

‘Something is going seriously wrong’: Colleges Grapple with Wave of Sexual Assault Lawsuits

WASHINGTON / April 18, 2016 – Following a recent California ruling in favor of a student accused of sexual misconduct, state lawmakers and college administrators are beginning to consider the budgetary implications of these claims. On April 5 the California Second Appellate District Superior Court overturned a University of Southern California decision that found a male student responsible because he allegedly “encouraged or permitted” other students to slap a female student on her buttocks. The Superior Court explained, “it is not too heavy a burden to require that students facing disciplinary action be informed of the factual basis for the charges against them.” (1)

The University of Southern California decision is the eighth ruling in 2016 in which a court found in favor of a student accused of sexual assault, or allowed the case to proceed because the pleadings were sufficient to state a cause of action. (2)

The growing number of rulings in favor of accused students was the focus of a recent Inside Higher Ed article. (3) The account quoted Gary Pavela, editor of the the Association of Student Conduct Administration’s Law and Policy’s Report, as saying, “In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases….Something is going seriously wrong.”

These lawsuits represent a growing financial burden for colleges. According to Brett Sokolow of the Association of Title IX Administrators, responding to a due process lawsuit “can run into the high six or even seven figures, not counting a settlement or verdict.” (4) In February, the University of Montana agreed to pay a former student $245,000 because of the university’s biased adjudication of a sexual assault allegation. (5)

Risk management efforts to forestall these lawsuits are becoming increasingly costly, as well. Salaries for Title IX coordinators can range from $50,000 to $150,000 a year. Sokolow estimates the cost of lawyers, counselors, and educational campaigns run from $50,000 a year at small colleges, to half a million dollars and more at large universities.

Harvard University now employs 50 Title IX coordinators across its 13 schools. At Yale, nearly 30 faculty members and staff are involved in its Title IX programs. Columbia University now has a Title IX staff consisting of 11 educators and 7 case workers, and covers the legal expenses of both accusers and the accused.

The American Council of Trustees and Alumni recently issued a statement sharply critical of the U.S. Department of Education for issuing directives that have “unconscionably conflated ‘conduct and speech cases’ in a way that has grossly expanded the intrusion of this unaccountable bureaucracy at the expense of faculty and student constitutional rights.” The Council warned, “It’s time that institutions—and their boards—fought back.” (6)

(1) http://www.courts.ca.gov/opinions/documents/B262917.PDF

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

(3) https://www.insidehighered.com/news/2016/04/14/several-students-win-recent-lawsuits-against-colleges-punished-them-sexual-assault

(4) http://www.nytimes.com/2016/03/30/us/colleges-beef-up-bureaucracies-to-deal-with-sexual-misconduct.html?_r=0

(5) http://www.foxsports.com/college-football/story/university-of-montana-to-pay-ex-qb-jordan-johnson-245k-over-handling-of-rape-accusation-021616

(6) http://www.goacta.org/news/acta_praises_aaup_report_the_history_uses_and_abuses_of_title_ix_outlines_l

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

Affirmative Consent Campus Sexual Assault

PR: Affirmative Consent for Sex Gets ‘Thumbs-Down’ from Lawmakers, Legal Defense Group, and Harvard Professors

Post author By saveadmin
Post date March 28, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Affirmative Consent for Sex Gets ‘Thumbs-Down’ from Lawmakers, Legal Defense Group, and Harvard Professors

WASHINGTON / March 28, 2016 – Polices designed to require explicit and ongoing agreement, often referred to as “affirmative consent,” experienced three setbacks during the past week. These developments signal broader concerns about the effectiveness, workability, and constitutionality of these policies, sometimes referred to as “yes means yes.”

Last Monday, members of the Maryland House Judiciary Committee declined to take a vote on HB 1142, a bill that would have required students at all Maryland colleges to give their “ongoing,” “clear, unambiguous, knowing, informed, and voluntary” agreement before engaging in sexual activities. Monday was the deadline for Maryland Delegates to approve a bill in order for it to advance to the Senate. Since no vote was taken, the affirmative consent bill is now considered “dead.” (1)

On March 22, the National Association of Criminal Defense Lawyers (NACDL) released a position paper on a proposed rewrite of criminal sexual assault laws. The Preliminary Draft, currently being considered by the American Law Institute (ALI), would make the absence of affirmative consent a key element in determining whether a sexual offense had occurred. (2)

The NACDL document takes sharp issue with the ALI proposal, saying the proposed affirmative consent standard would “shift the burden of proof to the accused,” a change the NACDL views as unconstitutional. The Preliminary Draft, according to the NACDL, would “use the bludgeon of criminal sanctions to impose the new and yet untested concept of ‘affirmative consent’ upon society.”

Highlighting the difficulty of laying out a precise definition of affirmative consent, the NACDL notes, “No person should face prosecution, conviction and imprisonment based upon a vague and ambiguous law.” The NACDL concludes, “In a utopian society, transparent and free flowing communication about sexual activity would be a beneficial goal, but we are hardly a utopian society.”

Thirdly, Harvard University professors Jacob Gersen and Jeannie Suk released a scholarly article titled The Sex Bureaucracy. The paper posits that ever-expanding definitions of affirmative consent have led to the current untenable situation in which “conduct classified as illegal by the sex bureaucracy…plausibly covers almost all sex students are having today.” (3)

More information about affirmative consent is available on the SAVE website. (4)

(1) http://mgaleg.maryland.gov/webmga/frmMain.aspx?stab=01&pid=billpage&tab=subject3&ys=2016rs&id=HB1142

(2) http://www.prosecutorintegrity.org/wp-content/uploads/2016/03/NACDL-Comments-Draft-6-MPC-Sexual-Assault.pdf

(3) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2750143

(4) http://www.saveservices.org/sexual-assault/affirmative-consent/

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