Proposed ‘Victim and Survivor Bill of Rights’ Further Jeopardizes New York Students’ Due Process Rights

New York’s proposed budget for 2015–16 reportedly contains provisions that should concern due process advocates—namely, the codification of an “affirmative consent” standard for college students engaged in sexual activity and a “Victim and Survivor Bill of Rights” that appears to preclude accused students from being presumed innocent until proven guilty. Brooklyn College professor KC Johnson details several problems with the “Bill of Rights” in a column for Minding the Campus posted yesterday.

I reported on the State University of New York (SUNY) system’s adoption of the “affirmative consent” standard last October, and Governor Andrew Cuomo announced the adoption of a “Sexual Violence Victim/Survivor Bill of Rights” for SUNY schools in December. If similar mandates are passed within the state budget, colleges and universities across the state will be governed by the same standards that already jeopardize the due process rights of students in the SUNY system.

As with California’s affirmative consent law, SUNY’s standard fails to clearly articulate what is required of students about to engage in sexual activity. Johnson notes, for example, that under New York’s standard, consent must be “informed,” and asks:

What’s the difference between an “informed” and “uninformed” agreement? The vagueness of this language makes it almost impossible for an accused student to defend himself.

Common sense hardly guides the question of what students must be “informed” about before consenting to sex. Ohio State University, for example, requires both parties to “agree regarding the who, what, where, when, why, and how this sexual activity will take place.” The why?

Johnson also points to a provision of the mandate regarding the presumption of innocence:

Then there’s right (e) of the proposed bill of rights: “Be free from any suggestion that the victim/survivor [sic, at this stage of the process] is at fault when these [alleged] crimes and [alleged] violations have occurred, or should have acted in a different manner to avoid such a crime.” ...

[I]magine how an accused student could possibly defend himself, given that the accuser is to be given—as a matter of state law—right (e). Could he suggest that the accuser actually consented to the sexual intercourse? It appears not, since this line of defense would suggest the accuser was at least partially “at fault” for what occurred. …

For someone who believes, as Cuomo apparently does, that the filing of a claim in and of itself transforms an accuser into a survivor, right (e) makes perfect sense. For those who believe in the presumption of innocence, however, the “right” is horrifying.

The uphill battle will get even steeper for students accused of sexual assault if Cuomo’s proposal is adopted. Johnson writes:

Cuomo also seeks to give the accuser the right to exclude “prior sexual history or past mental health history from admittance in the college disciplinary stage that determines responsibility.” No state has such a broad rape shield law, and for good reason. Imagine its application (taking an easy example) to the Duke lacrosse case. There, the prior sexual history of—in Cuomo’s language—“survivor” Crystal Mangum was vital to the defense, since it provided an explanation for the only “injury” that she allegedly suffered (diffuse edema of the vaginal walls). And if a trial had occurred, the contents of Mangum’s 1000-page mental health file would have been critical for the defense to explain her actions. But according to Cuomo, if Mangum made her allegations on a New York college campus—public or private—this vital exculpatory evidence would have been barred.

Johnson’s concerns about the presumption of guilt and the potential exclusion of exculpatory evidence in campus sexual assault hearings should be considered in full. Read the rest of his column at Minding the Campus.