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This article is part 1 in the series Yes Means Yes and Students' Due Process Rights

There is a new legal requirement in a few states — including New York — which have recently adopted laws requiring colleges and universities within their jurisdiction to revise their codes of student conduct to include some new mandates related to sexual conduct. (Eligibility for state financial aid programs is the carrot and stick that gets schools to adopt these new student conduct codes.)

Although no doubt acting from the best of intentions, aiming to prevent collegiate sexual assaults, but also without the best of information (that sometimes results in exaggerated claims), the legislators who enacted these new laws — commonly referred to as “yes means yes” laws — nevertheless have left students in a situation that is ill-defined, both for them and the schools enforcing the new mandate, and which could leave them caught up in what can be a seriously unfair process.

While backers of the bills stressed they were not changing state criminal law, they have managed to achieve the worst of both worlds, by asking colleges to set themselves up to judge whether conduct that can have severe consequences occurred.  Those consequences could possibly include expulsion, an end to a student’s education, and a record likely to harm employment prospects gravely. Meanwhile, the legislation skips important legal protections – such as a high standard of proof, and the guarantee of a fair hearing with an opportunity to examine witnesses and present an effective defense – that would be required in a criminal court.

The laws aim to go beyond the “no means no” standard, which is intended to enable an unwilling would-be partner to signal rejection of an approach.  Rather than requiring the unwilling party to resist or protest, the “yes means yes” standard would mean any sexual activity would be an offense unless each party had first explicitly consented.

Take California’s statute, the nation’s first: the “affirmative consent” requirement it imposes on campus Codes of Student Conduct requires that before any sexual activity may begin, those involved must receive the “affirmative, conscious, and voluntary agreement” of the other party. New York’s law, though broader in other areas, closely resembles California’s “affirmative consent” mandate.

One thing the law does is to invalidate the defense of one partner that he or she did not realize a sexual act was unwelcome to the other partner. While under a “no means no” standard, silence might be interpreted as consent, “yes means yes” would disqualify that defense.

Nor is “yes means yes” merely a preliminary formality. The new law states affirmative consent requires ongoing reassurance of consent before each new stage of sexual activity, and can be revoked at any point. Further, affirmative consent cannot be assumed even if the persons involved are in a dating relationship or have a shared sexual history.

While New York’s public university system had already adopted “yes means yes” provisions before the new law’s enactment, by September 2016, the new law will cover all college and post-graduate schools based in New York, for activities on or off campus. The law also sets new requirements for what college administrators must do in the tribunals they run to consider complaints of “yes means yes” violations.

Further, an advisory legal group, the American Law Institute, is now working on a revised model criminal law which could make sexual relations without affirmative consent at least a misdemeanor. If picked up by state legislatures, that “yes means yes” approach could affect all state residents, not just those in post-secondary studies.

The next installment in this series will report on an early court challenge to a college’s attempt to enforce the new “yes means yes” law; in that case, a California state judge ruled a college’s attempts to enforce the new code provision violated a student’s due process rights and lacked sufficient evidence for its decision the student had violated the new conduct code.

This article is part 2 in the series Yes Means Yes and Students' Due Process Rights

In an earlier article I summarized the potential unfairness to college students of school disciplinary hearings involving allegations of unwelcome sexual conduct in states — including New York — which have enacted laws requiring colleges and other post-secondary schools based there to use a “yes means yes” standard.

This article will look at a recent court case from California, the first “yes means yes” state, which illustrates problems raised in the earlier article are in fact real, not merely hypothetical or the fevered imaginings of persons lacking all sensitivity to the real, but how the violation of due process rights, the lack of adequate evidence, and using unfair procedures can cause great harm to the accused.

The case of Doe v. Regents of the University of California, San Diego has its beginnings early in January 2014, when two UCSD undergraduates, referred to only by the pseudonyms John Doe and Jane Roe, met; according to the later testimony of both, they soon began a relationship that include consensual sex acts. But the affair soon ended, and in Jane Roe filed a complaint with the university, claiming Doe on three occasions performed intimate acts to which she had not consented. Doe admitted sexual activity, but denied any wrongdoing.

Roe spoke with campus investigators, who passed their report on to school disciplinary officials enforcing the campus code of conduct. The school’s investigation found insufficient evidence for two of the alleged offenses, but found grounds for holding a hearing on the third charge, involving an intimate touching incident that allegedly occurred in February. The December hearing before a panel of two administrators (neither of them lawyers) and one graduate student, applying California’s new “yes means yes” law, decided Doe had sexually assaulted Roe.

On July 10 this year, a state judge in San Diego County handed down a brief but biting six-page decision, after Doe challenged the school tribunal’s ruling. Judge Joel Pressman voided the school’s ruling and sanctions as violating Doe’s due process rights, lacking adequate evidence, and using unfair procedures.

In what ways? More than you would think could fit into a six-page decision. To start with, the school’s procedures denied Doe the right to question Roe directly; instead he had to submit written questions to the school official chairing the hearing, who decided which to rephrase or omit (and who only allowed nine of the 32 he had submitted).

The rejected questions dealt with issues germane to Roe’s state of mind, such as her continued relationship with Doe, and texts she sent him, after the alleged assault. The judge noted the hearing chair screened none of the questions submitted by the university, which essentially acted as the prosecution.

Judge Pressman also questioned the hearing’s use of a barrier blocking any visual contact between Doe and Roe, and perhaps (the record is unclear) also screening the disciplinary panel’s view of Roe. Not only did the judge find it unneeded, but if the panel could not see Roe, it could not use her demeanor and non-verbal cues in assessing her credibility.

Further, the judge faulted the hearing for: allowing into evidence reports by university investigators without making them available for questions (in a regular court, it would be inadmissible hearsay), denying Doe access to statements Roe and 14 others made to investigators, and letting the university raise issues in the investigators’ report only in its closing argument, when Doe could not respond.

Judge Pressman also found other unfair elements of the hearing. While an accused in a criminal trial has the constitutional right to remain silent, the school panel pointed to Doe’s refusal to answer some questions at the hearing as helping establish his guilt. The judge also noted the school’s increasing sanctions against Doe (raising an initial suspension for one academic quarter to a full year, after he opted to appeal it) smacked of unlawful retaliation for asserting his rights.

This case illustrates well the power the school has over all facets of the investigation and prosecution against the student.

This article is part 3 in the series Yes Means Yes and Students' Due Process Rights

This series has previously identified problematic elements of college codes of conduct using a new “yes means yes” standard in judging alleged sexual misconduct, and described one recent California case (Doe v. Regents of the University of California, San Diego) – there are others, with many more likely in store – where a state judge voided a college disciplinary proceeding as fundamentally unfair and violating a student’s due process rights.

The California case highlighted a fairly large number of ways college disciplinary proceedings involving sexual misconduct claims can violate students’ basic rights to a fair hearing.  These are rights they would have in a criminal court hearing: to be represented by counsel, examine evidence, cross-examine witnesses and invoke rights against self-incrimination and against a longer sentence in retaliation for filing an appeal.

Unfortunately, that doesn’t exhaust the defects of college disciplinary hearings. New “yes means yes” laws, like those adopted in California and New York, have other serious defects and can have far-reaching repercussions. To review briefly, the “yes means yes” standard goes beyond the well-established “no means no” standard, which requires one participant to stop a sexual act to which another participant objects.

Instead, “yes means yes” requires a participant to receive affirmative approval before beginning any sexual act. Without express, voluntary, conscious, mutual consent in advance, any type of sexual conduct can become serious misbehavior, even if it would otherwise be student explorations of no concern to the school and state.

One fundamental problem with “yes means yes” is its absence of clarity on how the required manifestation of consent is supposed to occur. Unlike aircraft pilots meticulously working down a pre-flight takeoff checklist on their clipboards, college students in the process of hooking up are unlikely, even if completely sober, to be able to document exactly who said what and responded what to whom when.

I’m not suggesting the Department of Education should issue clarifying regulations (as you’ll see below, they’ve done quite enough harm already), only that such a vague standard can leave everyone in doubt and leave some students, perhaps long after the fact, in deep trouble. Plus, unlike the normal presumption of innocence, “yes means yes” essentially presumes students engaging in sexual acts are guilty of sexual assault, unless they can establish their innocence by proving they received affirmative consent. On either count, vague standards or the wrong burden of proof, “yes means yes” may well be unconstitutional.

The DOE for several years has opined on how schools should handle sexual misconduct complaints. In fact, it mandates that hearings into sexual misconduct complaints base their decisions on a “preponderance of the evidence” standard of proof. A criminal court, of course, has a much higher requirement: proof of guilt beyond a reasonable doubt.

DOE advises schools they’re under no duty to tell local law enforcement about complaints they’ve received of students’ clearly criminal sexual misconduct, but justifies its far lower standard of proof for student hearings on the grounds schools can’t send offenders to jail. But that doesn’t mean a college disciplinary hearing cannot bring serious, long-lasting consequences.

Even beyond school discipline up to and including expulsion, a school hearing’s decision that a student engaged in sexual misconduct not only makes it unlikely the student can continue his or her education anywhere, but could also hurt chances of admission to many professions and employment prospects generally.

One member of the Washington, D.C. City Council recently proposed legislation to require local colleges to add permanent and prominent notices on transcripts of students when a school hearing found they had committed a sex offense, or withdrawn from school before the completion of hearings on such charges. It’s a fairly safe bet that won’t be the end of such proposals.

This article is part 4 in the series Yes Means Yes and Students' Due Process Rights

In the previous articles in this series, I noted that advocates for “yes means yes” and similar measures billed as fighting college sexual assaults frequently make exaggerated claims on how frequent such offenses are. But if you’re looking for workable solutions, it’s important not to overstate the real dimensions of the problem.

Here’s one example of an unjustified overstatement of the frequency of campus sexual assaults: Rape and Sexual Assault: A Renewed Call to Action, a report released in January 2014 by the White House Council on Women and Girls. It advanced the claim, repeated in a presidential speech, that one in five women is sexually assaulted while attending college. The first report of a new task force the White House set up later in the year to fight rape and sexual assault in schools also echoed the bogus claim. The lead sponsor of California’s “yes means yes” law similarly invoked that claim.

The original source of that claim is a 2007 survey by a Justice Department consultant. If you delve into that report, as did a well-researched Slate article by Emily Yoffe, you’ll find less-than-impressive support. The consultant’s survey took website responses to its questionnaire from fewer than 5,500 women at two state colleges, a very insignificant share of the nation’s 12 million female college students.

Another study done for the Justice Department, dating from 2000, is also often cited for an even more horrific claim: that a quarter of all female college students will experience sexual assault. There’s even an activist group, One in Four, deriving its name from the unsupported claim.

That study actually found on average in any year 1.7% of its respondents reported an actual sexual assault, and another 1.1% said they had experienced an attempted assault. Those numbers came in response to a survey done in the spring, so to adjust for the full year, the study’s authors nearly doubled the combined 2.8% figure to 5%. They next increased the typical four-year span for college to five years, and reached the more attention-getting, but ill-supported, 25% claim.

In fact, broader, and both more recent and representative, statistics from the federal government’s National Crime Victimization Survey cast serious doubt on such claims. Data sampled from that nationwide survey between 1995 and 2011 gave estimates that actual, attempted or threatened sexual assaults occurred at a rate of 0.8% for women between the ages of 18 and 24 – among those not in college. For women in the same age group attending college, the estimated annual rate was 0.6%.

Of course, every claim of having been assaulted deserves a complete investigation and, where warranted, prosecution. But, as Rolling Stone has learned to its chagrin, not every such claim is entitled to automatic, uncritical belief.

Further, even a problem as large as incorrectly claimed would not justify ignoring basic due process rights for accused students, such as the right to a fair hearing, rather than a panel of university officials out of their depth, and with a presumption of innocence, not of guilt.

The concluding article in this series will examine why campus are having so much trouble figuring out how to deal with this issue, more ways their procedures can harm innocent students, and some better ways to address what is a real, if overstated, problem.

This article is part 5 in the series Yes Means Yes and Students' Due Process Rights

Some colleges and universities have for years come under fire, from students and critics outside the campus accusing them of having done little to address or prevent instances of sexual attacks against students– or perhaps even to have covered them up. A partial response was a federal law requiring campuses to report violent crimes; another was the federal government’s first-ever release last year naming dozens of schools where students have complained of administrative inaction.

Title IX, part of a 1972 educational law aimed at fighting sex discrimination in higher education, gives Department of Education officials powerful tools – including blocking federal funds – to recalcitrant schools. In recent years, those same officials have been drawing up new procedures they think schools should follow in handling such complaints.

Take the case of Harvard, which in July 2014 unveiled its new university-wide disciplinary procedures for handling complaints of sex assault or harassment. When Harvard Law faculty saw the new policy (which the law school had not been involved in developing), 28 of them fired off a joint letter of protest.

The nicest thing they had to say about the new policy was it would “do more harm than good.” Specifically, the law faculty protestors charged the new procedures:

  • “lack the most basic elements of fairness and due process”
  • made subjects for investigation conduct not covered by sex discrimination and harassment laws
  • were “overwhelmingly stacked against the accused.”

Specifically, the Harvard law faculty faulted the university’s newly-minted procedures for handling sex misconduct complaints for not adequately providing accused students with an opportunity to:

  • learn the specifics of charges against them
  • question witnesses
  • present a defense.

Small wonder the law faculty protesters termed the procedure “starkly one-sided” against students accused of misconduct.

Recall that the Department of Education is urging colleges to adopt a “preponderance of the evidence” standard for campus disciplinary hearings, rather than anything approaching the “beyond a reasonable doubt” standard for criminal defendants. Nor is that the only bad idea gaining steam in activist and government circles.

In April last year, a White House task force studying campus sexual assaults issued its first report, and included in its recommendations the suggestion that colleges consider adopting a “single investigator” model who would be responsible not just for investigating student sex assault and harassment complaints, but also presenting the university case and handling any appeals. That was also part of the much-criticized Harvard procedures.

Most college administrators, if they are candid, would admit they have little or no expertise in running criminal investigations or conducting hearings into serious student misconduct. To concentrate such power in a single, perhaps ill-prepared college administrator, is nearly guaranteed to mean bad cases going forward.

Federal officials working on preventing campus sexual assaults also display numerous blind spots. To illustrate: the report of the White House task force makes no mention of alcohol, just as Department of Justice grants for studies of campus attacks have excluded that topic for well over a decade.

Activists insist mentioning alcohol as a risk factor stigmatizes assault victims, but a recent survey found alcohol was a factor in about two-thirds of campus assaults – why isn’t that relevant to mention if you really want to address the problem?

Making matters worse, many schools have also decided to forbid accused students from having legal assistance at such hearings. In the San Diego case, the accused student was allowed to bring a lawyer to the disciplinary hearing, — but the lawyer was not allowed to speak, much less ask questions of witnesses.

North Carolina adopted a law a few months ago, the nation’s first of its type, which guarantees that students in state schools who hire a lawyer or a non-lawyer advocate will retain the right to have their representative accompany them and participate fully in almost all campus disciplinary hearings.

Of course, schools need to protect the rights of victims of campus sexual assaults. But, given the potential stakes and the damage a wrongful finding of responsibility could bring to an accused student, the answer is not to make campus disciplinary hearings so one-sided that an accused student is deprived of the right to a fair hearing, the opportunity to present a defense, and the right to be judged by reasonable standards. Any student being interrogated or accused in a campus hearing over potentially serious misconduct should not be forced to respond without full access to experienced legal counsel.