Constitutional Law Criminal Law

“Yes Means Yes” Law Will Mean “No” to Due Process

Swiftly passing laws to combat the “topic du jour” is a politician’s favorite form of grandstanding. As a person who is wary of any such law or indeed of any criminal statute named after a person, I worry that NY’s recently enacted “Yes Means Yes” law will erode the rights of those accused of on-campus sexual assaults. These snap-reaction laws rarely cover only the ground they intend to cover and instead get applied broadly to all similar situations that were never the intention of the original law and which reek havoc on the justice process.

The law which currently only applies to NY college and university campuses, is not a criminal statute – it requires schools to adopt “affirmative consent policies” in their student conduct guidelines. Colleges have until September of 2016 to comply by re-rewriting their conduct codes and policies.That means that it will no longer be a defense to an accusation to say that the complainant “Didn’t say ‘No'” An affirmative “Yes” must be obtained for each sexual act. That means if a woman affirmatively consented to kissing you, you then need to obtain additional separate affirmative consent to say – touch her breasts. If during the makeout session, the woman steps back, opens her shirt herself and takes off her bra, the other party must still ask for and obtain affirmative spoken consent. No more picking up on sexual cues – the romantic dance has been turned into a contractual event.

This is the part of the article where I acknowledge the problem of sexual assault on college campuses.It has been a year of national questions about how well colleges handle sexual assault on their campuses: a Columbia University student became a media sensation as she carried a mattress around with her to protest how her allegations of sexual assault had been handled. Currently in NY alone, 11 colleges are under investigation for mishandling sexual assault allegations. So let’s focus on fixing that problem – getting police departments and college administrators to better understand the nature of sexual crimes and how to respond to complainants and investigate their allegations seriously and professionally. This shift in the law however goes too far and places the burden of proof on the accused. They will now have to somehow prove that they received affirmative consent for each sexual act. How long before someone develops an app that each party has on their phone where you enter the other parties name and have them text you consent as you move up (or down) the sexual progression?(caniplacemyhandthere?.com)

It feels like NY rushed headlong into this law without a full analysis of some of the root causes of the problem: binge-drinking in colleges and school administrators who are dinosaurs and incapable of properly handling sexual assault allegations. In a recent interview with NPR, Assemblywoman Deborah Glick, one of the sponsors of the law said this:

Frequently in legislation you address the edges of a problem. You can’t solve problems that are about human behavior (laughter). I mean, we don’t stop murder by having severe penalties for that, but you don’t not try.

That’s the problem – addressing the edges of a problem by passing legislation that covers far beyond the edges of the problem produces unworkable and dangerous laws. And at least murder suspects get due process rights (most of the time anyway). Students accused of on-campus sexual assault are brought to kangaroo courts usually made up of a few administrators, one student and a Dean. The accused is not given a copy of a written accusation, is not entitled to counsel, and is in many instances not even allowed to question the witnesses who testify separately and often outside the presence of the accused. And while there is no criminal penalty for being found guilty of sexual assault in one of these proceedings, getting suspended or expelled has great consequences on a young person’s future and can severely alter their prospects. So if we are shifting away from “Innocent until Proven Guilty” we should ensure there are protections for the accused as well.

The scale represents balancing justice with fairness
The scale represents balancing justice with fairness
And while this law currently only applies to NY college campuses, I expect it will be made the norm on all college campuses and soon enough this standard will make its way into the criminal statutes.The draft sexual assault law being written by the American Law Institute (ALI) would make sex without express consent a misdemeanor anywhere. The institute, made up of legal scholars and judges, writes draft penal codes that are often adopted by states and the federal government. Retired Federal Judge Nancy Gertner is a member of the ALI, and also a professor at Harvard Law School. She is opposed to these laws because of the danger they present to due process rights. She and two dozen others warned that the proposed changes to criminal laws across the country could potentially fill the courts with false and frivolous accusations. She also described the failings of Harvard’s new sexual assault hearing policy which was modeled on a Yes means Yes standard:

Nothing in the new procedure requires anything like a hearing at which both sides offer testimony, size up the respective witnesses, or much less cross-examine them. Nothing in the new procedure enables accuser and accused to confront each other in any setting, whether directly (which surely may be difficult for the accuser) or at the very least through their representatives. Nor is there any meaningful opportunity for discovery of the facts charged and the evidence on which it is based; the respondent gets a copy of the accusations and a preliminary copy of the team’s fact findings, to which he or she can object — again within seven days, a very short time — but not all of the information gathered is necessarily included. Everything is filtered through the investigative team, which decides the scope of the investigation, the credibility of witnesses, and whom to interview and when. …

The final flaw in the NY State policy is that it describes as sexual assault any sexual contact with a person “who is under the influence of alcohol.” But it fails to define the term “under the influence of alcohol” Is that legally intoxicated? Is it impaired? What if alcohol made someone loosen restrictions on their morals but they still fully consented to the activity – afterwards they could argue that they acted “under the influence of alcohol” And how about this – What if the alleged accused was under the influence of alcohol? Under these guidelines why should it not be a defense to campus sexual assault that the accused misinterpreted sexual cues as affirmative consent because they were under the influence of alcohol at the time.

Campus sexual assault is a serious issue worth of discussion, debate and investigation. Police and college administrators must be educated on the significance of the problem and how to properly deal with such charges. Many proponents of the law say that its strength is that it has “started the conversation.” Actually it has ended the conversation because a law has been passed – conversation (or as I prefer to call it “debate”) is supposed to occur before a bill is enacted so that we make sure we get it right. This law is a step too far and does not provide sufficient protection for the accused. It has serious potential to harm innocent people and destroy their college careers and seeks to formalize interpersonal relationships in a manner that cannot be properly enforced.

Follow me on Twitter: @oscarmichelen

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