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Yes Means yes – Sex on Campus in 2016

In my opinion, college is a great time to experiment. You try new things, push the envelope and develop in many ways. Meeting different people and figuring out where you fit in socially is a big part of the college experience, including sexual experimentation.

Things have changed a lot since I went to college. Nowadays, kids still experiment with sex but the attitudes and policies about sex on campus, have changed dramatically. Generally, I think this is a good thing. In the past, too often young women/men were taken advantage of and no one was ever held accountable. Often, this was just considered the “way it is” and matters were hushed and put away quietly.

The college mantra of sex, drugs, rock & roll has been and probably will always be part of the college experience. While this can be fun, the problem is with students getting caught up in the moment and engaging in conduct they regret in the morning.

The primary culprit is alcohol – and too much of it. Inexperienced drinkers can easily overdo it and drink more than they can handle. This can lead to poor conduct on one side and being taken advantage of on the other side. In the past, when these events occurred on campus, universities/colleges were left to their own devises to address the alleged misconduct. All too often little was done or worse yet, no action was taken whatsoever.

“Yes means Yes” was designed to address this issue. Senate Bill SB967, signed into law in September of 2014 requiring “an affirmative, unambiguous and conscious decision” by each party to engage in sexual activity. Universities are under pressure to improve their handling of allegations of sexual assault. The bill requires all colleges taking student financial aid funding from the state (virtually all universities in California) agree when investigating campus sexual assaults, silence or lack of resistance does not imply a green light for sex and that drunkenness is not an acceptable defense.

While this seems like a healthy step forward, there are concerns about the ability of universities to provide due process. “It is tragically clear that this campus rape crusade presumes the veracity of accusers (a.k.a. ‘survivors’) and likewise presume the guilt of accused (virtually all men). This is nice for the accusers – both false accusers as well as true accusers – but what about the due process rights of the accused?” wrote Gordon Finley, professor emeritus of psychology at Florida International University.

These concerns have proven to be prophetic. Not only is the nature of the required “consent” a grey area, but the real problems have developed in the “process” of resolving the allegations. The serious lack of due process afforded the accused has begun to rear its ugly head. In a college disciplinary setting, the accused has to prove he/she obtained consent. The standard forces the accused to prove his/her innocence, rather than to be proven guilty. Even more troublesome, they have to prove it without cross examining the accuser, having a formal hearing and, in many cases, being able to hire an attorney.

In July of 2015, the Court ruled that a student expelled from the University of California-San Diego had an “unfair” hearing. The John Doe accused in the case was unable to cross-examine his accuser and other witnesses. He also said, he was forced to submit questions to a hearing panel in advance and many of his questions were rejected.

A student found guilty of sexual misconduct by the University of Tennessee because he was unable to prove he obtained verbal consent, had his verdict overturned by a Chancery Court judge in August of 2015

A student expelled from Washington and Lee University for alleged sexual misconduct will be allowed to continue with his gender bias lawsuit against the school, U.S. District Court Judge Norman Moon ruled on Aug. 8 2015. In the lawsuit, a Title IX officer at the school is quoted during a presentation she gave to the woman who later accused John Doe. The Title IX officer is alleged to have said “regret equals rape” and “went on to state her belief that this point was a new idea everyone, herself included, is starting to agree with.” Shortly thereafter, an allegation of misconduct was launched against John Doe. The Title IX officer played a significant role in the investigatory process.

A right to due process at state universities may seem like a novel concept but law professor John Banzhaf said the fourth amendment protection was never intended to apply solely to the court system.

“The Constitution trumps everything else,” he said. “So no matter what the Department of Education or Department of Justice suggest, regardless of what a state’s statute provides, or what the University decides, the Constitution trumps it all.”

The Supreme Court somewhat settled the due process question in its 1976 Mathews vs. Eldrige (424 US 319) decision, a case cited by Chancellor Carol L. McCoy in the University of Tennessee decision.

“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner,’” McCoy wrote. “Due process is flexible and calls for such procedural protections as the particular situation demands.”

In April 2016 a male student –athlete at the University of Southern California had his school suspension reversed by the California Court of Appeal. The court’s ruling makes clear that USC did not afford sufficient due process protections to the accused and that robust university policies to address sexual violence do not have to be inconsistent with basic procedural fairness. The student was forced to defend his case without receiving notice of the specific factual allegations against him. Further USC never held a hearing. They interviewed the accused and accuser along with several other witnesses then issued a report and ruled on the case. The court noted that the University “relied on information never revealed to the accused.

Complicating the matter is how the campus “process” interferes with the accused’s potential criminal concerns. The University tells the student that they have the right to an advisor but not an attorney. Any conversation with that advisor does not enjoy the “attorney/client” privilege so the advisor could be called to testify against the student in a criminal or civil matter. The campus investigation does not provide the accused with any statements of the accuser and a very limited ability to defend one’s self. Often, the University insists on the accused giving a statement, without the right to legal counsel nor any real indication of what the actual allegations are. Again, this compelled statement can be used against the accused in any criminal or civil action that is filed. I have represented young men who were never charged in a criminal court, yet were expelled or forced to leave the school based upon allegations that were made, without any ability to confront the accuser or present any meaningful defense.

A former Stanford University student is accusing the school of railroading him during a sexual assault investigation because it was concerned about public perception in a case that gained national notoriety when his accuser publicly protested his punishment. The event was an alleged rape of his former girlfriend occurred in Alaska. It was reported to law enforcement in Alaska and to Stanford. The District Attorney did not file charges but the University suspended the student. According to the complaint filed in Federal Court the University ignored “relevant evidence exonerated John Doe and instead (chose) to rely on (the accuser’s) contradictory and incredible allegations.”

The basic concept of both parties to any sexual encounter being consensual is a good one. However, the reality of how that actually occurs between two young people in a college setting is much different. The rights of all parties – both the accuser and the accused – must be protected in a meaningful way. A rush to justice rarely provides a just outcome. Everyone, no matter the setting, deserves to have their Fourth Amendment rights protected.

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