University of Miami Law Prof: Affirmative Consent Effectively Shifts Burden of Proof to Accused

University of Miami (Florida) law professor Tamara Rice Lave has joined the growing number of people—including FIRE—arguing that “affirmative consent” policies unfairly shift the burden of proof to students accused of sexual misconduct to prove themselves innocent. In a pair of posts on the legal blog PrawfsBlawg, Professor Lave discusses her concerns with affirmative consent policies and argues that even the best-written affirmative consent policy will prove unfair in the university setting, “with its fewer procedural protections for the accused.

In her first post last week, Professor Lave wrote that although affirmative consent certainly reflects a positive model for communication between sexual partners, it should not be legally required:

When I was a public defender, I used to always remind jurors that because the [burden of proof] was on the prosecutor, I could literally say nothing, and still, if the D.A. didn’t prove the case beyond a reasonable doubt, they would have to acquit. But with affirmative consent, the accused must put on evidence. If the university proves by a preponderance of the evidence that a sex act happened, the student has violated the university code of conduct unless he can convince the fact finder that the complainant consented. [Emphasis in original.]

She went on to praise the recent court decision in Mock v. University of Tennessee at Chattanooga, writing that she was “relieved that at least one judge is similarly critical of affirmative consent” and that she hoped other judges would follow suit.

In a follow-up entry posted this week, Professor Lave sets out two potential definitions of affirmative consent and considers whether better drafting could improve the problem of burden shifting:

If part of the point of an affirmative consent standard is to show that the default should be non-consent, then rape might be defined as follows: “Any penetration, no matter how slight, of a person’s vagina or anus is rape unless it is accomplished with that person’s affirmative consent.” Under this definition, all a prosecutor needs to prove is that penetration occurred. The burden would then be on the defendant to prove (by a preponderance of the evidence? beyond a reasonable doubt?) that there was affirmative consent, just as the burden would be on the defendant to show that he was insane or under a state of duress at the time of the crime.

[…]

Now rape could be defined differently so that it made the absence of affirmative consent an element of the crime. For instance, it might read, “Any penetration, no matter how slight, of a person’s vagina or anus constitutes rape if accomplished without that person’s affirmative consent.” Here, a prosecutor would have to prove beyond a reasonable doubt that [the accuser] had not affirmatively consented in order to convict Defendant of rape.

So would adopting the second definition of affirmative consent alleviate the burden-shifting problem identified by people like Professor Lave and the judge who decided the Mock case? Certainly not in the university setting, writes Lave:

Although many would find Definition #1 unfair, they might support Definition #2. But what happens when Definition #2 moves from the criminal justice setting to the university with its fewer procedural protections for the accused? Even if it might still technically be the university’s burden to prove that there was no affirmative consent, effectively, I don’t think it is. The preponderance of the evidence standard is too low, and combining that with no right to cross-examine and the pressure on universities from the Department of Education, Office of Civil Rights [sic] to convict, the result is that even if sexual assault is defined with certain elements, they do not pose any real hurdle to conviction. In practice, Definition #1 and Definition #2 become the same.

With this, Professor Lave identifies one of the fundamental problems with all of the new regulations aimed at university sexual misconduct proceedings: Each new requirement is being layered on top of a system that already lacks fundamental fairness. Supporters of the “preponderance of the evidence” standard of proof, for example, continually point out that it is the same standard used in civil courts. But they ignore the fact that litigants in civil court enjoy numerous procedural protections typically unavailable to parties in campus judicial proceedings, such as active legal representation, the right to discovery of evidence, the right to cross-examination, and rules of evidence guaranteeing the exclusion of hearsay and other irrelevant or unreliable evidence, to name just a few.

Interestingly, one of the comments on Professor Lave’s second blog entry challenges her statement that universities are under pressure from OCR to find students responsible for sexual assault. In response, Professor Lave correctly notes that OCR’s April 4, 2011 “Dear Colleague” letter required or recommended several changes that had “the effect of making it easier to find accused students responsible,” while expressing little to no concern for the due process rights of accused students.

Lave is not the first person to identify this pressure as a concern. Indeed, in an “Open Letter to Higher Education about Sexual Violence,” Brett Sokolow—president of the National Center for Higher Education Risk Management—noted that “in a lot of these cases, the campus is holding the male accountable in spite of the evidence—or the lack thereof—because they think they are supposed to, and that doing so is what OCR wants.” At present, Sokolow's firm provides legal services to over 65 colleges and universities and has served as a consultant to many more. So if anyone can speak to the pressures being felt by campuses to find accused students guilty, he can.

You can read Professor Lave’s entries in full over at PrawfsBlawg.

UPDATE: Professor Lave published a third entry on the subject this afternoon, available here.