Editorial: Preserve due process in sex assault cases

The Detroit News

Universities, under pressure from the Obama administration, have cracked down heavily on campus sexual assault. But the push to protect young women has often led to the subversion of rights for the accused. And the looser standards applied to campus allegations are starting to spill over to criminal investigations.

That’s an alarming trend. If it isn’t halted, the country will need a lot more prisons to accommodate the influx of “sexual predators.”

A prominent legal group, the American Law Institute, made a good call this week when it refused to approve an affirmative consent standard in defining sexual assault. The group had considered a “yes means yes” proposal to amend the Model Penal Code, which is used as a guide for state legislatures when crafting laws.

A large contingent of members were concerned the proposal unfairly placed the burden of proof on the accused to prove consent was given at each stage of a sexual encounter. That is a clear denial of due process rights for the accused, the members argued.

The National Association of Criminal Defense Lawyers had also raised serious constitutional concerns about the guidelines.

“The radical new proposals would be a giant step toward states prosecuting and imprisoning people for sexual activities that they had reason to believe were consensual,” observed Stuart Taylor Jr., a lawyer and nonresident senior fellow at the Brookings Institution, prior to the Tuesday vote.

Campuses around the U.S. have adopted affirmative consent policies, believing that “no means no” didn’t go far enough to stop sexual assaults. Some states, like California in 2014, have passed legislation making affirmative consent legally binding on college campuses.

It doesn’t take much imagination to see how awkward “yes means yes” would make most romantic encounters. One wrong move without receiving explicit permission could land someone in court — or prison. Plus, it comes down to a he said, she said situation.

As it has played out at colleges, women are often given the benefit of the doubt — even if the alleged assault occurs within a longstanding relationship, or with the clear appearance of consent.

The “yes means yes” movement also flies in the face of feminism, painting women as passive and prone to victimization.

Most campus investigations use a much weaker preponderance of evidence standard for determining guilt, in contrast to the tougher standard to prove wrongdoing in criminal cases. That’s led to many young men being unfairly expelled from schools and their futures irreparably tarnished.

Universities are starting to pay the price for these wrongful expulsions, however, as the banished men and their families are suing.

Yet that hasn’t stopped a push for expanding the lesser standard in determining guilt. The U.S. Department of Justice has also indicated a movement toward looser standards for prosecuting sexual assault and creating a more victim-centered model — just like the ones being promoted on college campuses by the Education Department’s Office for Civil Rights.

The affirmative consent standard has been quashed for now. But the movement for “yes means yes” and other alarming legal trends surrounding sexual relations demands constant vigilance to preserve constitutional rights of all parties.