On March 24, 2015, the Connecticut General Assembly’s Higher Education and Employment Advancement Committee voted 14-3 to forward to the full Senate Committee Bill Number 636, “An Act Concerning Affirmative Consent.” Bill 636 would require the State’s universities and colleges to implement an “affirmative consent” standard as part of their sexual assault policies. It is modeled upon an affirmative consent law that California enacted in late 2014 in response to an increase in student-related sexual assaults. It is designed to replace what is a de facto “no-means-no” standard with what is commonly referred to as “yes means yes.” While on its face this may seem to be little more than a matter of semantics, Bill 636, if signed into law, would dramatically reshape the handling of campus-based sexual assaults when consent is at issue, most significantly by shifting the burden of proof in any subsequent campus disciplinary proceedings from the accuser to the accused.
The current “no-means-no” standard imposes upon victims of sexual violence an implicit responsibility to prove that they plainly communicated to the alleged perpetrator that they did not wish to engage in the sexual activity. This can result in a female victim being forced to overcome certain atavistic notions such as that dressing or acting in a particular way somehow translates into “asking for it,” or that the word “No” only means “No” when said with an unequivocal vigor, persistence and volume. As a result, students reporting sexual assault can find themselves once again feeling victimized.
In contrast, the yes-means-yes standard essentially establishes a blanket presumption that a student does not wish to have sexual relations, regardless of attire, conduct or context, unless she – or he – affirmatively consents. Given that Bill 636 defines “affirmative consent” as “an active, informed, unambiguous and voluntary agreement,” the proverbial “nod and a wink” would almost certainly be deemed insufficient. Instead, consent would have to be expressly communicated. In other words, under the affirmative consent standard, silence is not “yes,” “no” is not “yes”; only “yes” is “yes.”
Given that Connecticut has some of the most elite, selective colleges and universities in the country, it is surprising that something so seemingly obvious would require legislation, but perhaps being “gifted” is not what it used to be. It certainly is alarming that as of January 2015, the United States Department of Education’s Office for Civil Rights, or “OCR,” was investigating approximately 95 colleges and universities, including most of those that comprise the Ivy League, in response to student accusations of sexual violence. This represented an approximately 82% increase from OCR’s initial May 1, 2014 list of 55 schools.
Despite these statistics, the yes-means-yes standard has elicited criticism. Some detractors of affirmative consent have hyperbolically asserted that it requires that the consent be memorialized in writing or on video. Not surprisingly, the law does not expressly mandate such documentation, and frankly, it would be unrealistic, possibly illegal in the context of a video, and somewhat peculiar to require it.
Similarly, because Bill 636 provides that affirmative consent must be “sustained throughout the sexual activity and may be revoked at any time,” critics have derided it as requiring a kind of checklist, with hypothetical boxes being ticked prior to proceeding to the next stage of contact. Implicit in this criticism is an assumption that the initiation of physical contact constitutes acquiescence to full consummation, a ridiculous and fairly troubling contention that equates intimacy with an express train, intended to rocket from Station A to Station Z, without intervening stops.
Critics aside, the rationale for this bill is indisputably laudable. At the same time, there are significant questions as to its consequences. Currently, a claim that one student sexually assaulted another typically involves the classic he-said/she-said paradigm. This same dialectic will persist under an affirmative consent standard, although as noted at the outset, when consent is at issue, the accuser will no longer bear the burden of proof; rather, it will be borne by the accused.
The transference of the evidentiary burden is reflected in Bill 636’s language, which provides that “it is the responsibility of each person to ensure that he or she has the affirmative consent of all persons to engage in the sexual activity.” This same “standard of affirmative consent” would be used during any consequent disciplinary proceedings to determine “whether consent to engage in sexual activity was given.” Thus, having been accused of sexual misconduct, the student would be responsible for establishing that the accuser had expressly consented to the sexual act in question.
In practical terms, then, determining whether sexual activity constituted assault would seem to turn upon the accused’s ability, or inability, to prove consent. If it were uncontroverted that the sexual act occurred, Bill 636 would appear to create a rebuttable presumption that that act, on its face, constituted sexual assault unless and until the accused could prove the existence of consent. While perhaps not knee-buckling, this aspect of the bill should at least prove belt-buckling. It certainly provides a persuasive basis for calling it a night before things go too far, for in cases in which a student believed there to have been consent, divergent recollections could result in his or her having to prove it.
In seeking to satisfy this evidentiary burden, the accused will be unable to rely upon the fact that he or she had a preexisting romantic or sexual relationship with the accuser. After all, people are not chattel, and dating someone does not forfeit ones right to exercise a preference at any particular moment. Additionally, Bill 636 appropriately precludes the accused from arguing that he was too intoxicated, reckless or negligent to ascertain whether the accuser actually provided consent.
The flip side of intoxication – when the accuser was drinking or using drugs – imposes an additional obligation upon the accused student. As noted, affirmative consent is defined as “an active, informed, unambiguous and voluntary agreement.” At what point, though, does intoxication or the influence of drugs render consent uninformed or involuntary? This can prove a critical question, for Bill 636 provides that the accused cannot establish consent if he or she “knew or should have known that the victim was unable to consent because the victim was . . . incapacitated due to the influence of drugs, alcohol or medication and, as a result, was unable to understand the fact, nature or extent of sexual activity.”
Significantly, Bill 636 places no apparent obligation upon the accuser to establish that she, or he, was incapacitated to the point of being unable to consent. This omission would suggest that the accuser would need only claim such incapacity, and in the consequent course of establishing consent, the accused would also have the burden of proving that the accuser’s intoxication or drug use was insufficient to vitiate it. Obviously, this could prove to be a herculean task.
On a certain level, some may not see this shift in the evidentiary burden as anything new. To the contrary, there has been a national wave of lawsuits filed by students who were expelled for sexual misconduct, asserting that their culpability had been preordained so that their former colleges and universities could demonstrate to OCR how seriously they were taking sexual assault accusations.
Of particular note, in 2014 a federal judge in Ohio refused to dismiss a lawsuit in which a student expelled for sexual assault alleged that Xavier University violated Title IX by subjecting him to gender-based disparate treatment. More specifically, he claimed that Xavier expelled him in order to appease OCR, which only months earlier had faulted the university’s handling of two sexual assault claims filed by female students against male students. In reaching its decision, the court cited the plaintiff’s claims that the disciplinary hearing process was fatally flawed, having allowed the accuser more rights than the accused, and having entrusted his fate to a panel that typically handled claims of academic dishonesty and was ill-equipped to handle a sexual assault case.
Perhaps in an attempt to address such concerns, Bill 636 provides that both the accuser and the accused “are entitled to be accompanied to any meeting or proceeding . . . by an advisor or support person of their choice,” a right not currently available in a number of schools. While not defining who constitutes “an advisor or support person,” the legislation does not preclude legal representation. Additionally, Bill 636 permits both students to call witnesses and to introduce evidence.
Bill 636 also provides that “the investigation and any disciplinary proceedings shall be conducted by an official trained annually in issues relating to sexual assault.” Despite its use of the conjunction “and,” presumably schools would recognize the advisability of using different individuals for the investigatory and adjudicatory phases. After all, should an investigator determine that there is a sufficient basis for referring the matter to a disciplinary proceeding over which he or she would then preside, questions regarding prejudgment might arise. Additionally, while an understanding of sexual assault is a helpful attribute, a more pertinent qualification for the individual conducting the hearing – particularly if both students had attorneys -- would be the ability to address evidentiary and procedural issues.
These enhanced procedural safeguards should provide a more equitable means of balancing the rights of the accuser and of the accused. The question, however, is whether they will be sufficient to offset the daunting evidentiary burden that the affirmative consent standard will, if adopted, impose upon students accused of sexual assault.
We are all entitled to determine the extent of physical intimacy in which we are willing to engage, and we all deserve to have that determination respected. The affirmative consent standard is designed to underscore those rights, but it also conveys another compelling message, namely that as important as it is to obtain consent, it will be equally important to be able to prove it.
Attorney McKeon is a Member of the law firm of Pullman & Comley LLC, which represents a number of Connecticut school districts. More articles about issues pertaining to school districts and other educational institutions can be found on the firm’s blog Education Law Notes at http://schoollaw.pullcomblog.com. Reprinted with permission from the March 30th issue of Connecticut Law Tribune. ©2015 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.