Challenging University Approaches to Sexual Assault: Time to Reassess University Approaches in Light of the the ALI's Rejection of Proposed Changes to its Model Penal Code?

(Pix © 2015 Larry Catá Backer)

The sexualization of conduct, and its management, has become an important element of the discourse of rights, and of human dignity in American society.  Such sexualization, and its punishment, extends from the most egregious conduct traditionally suppressed (rape) to conduct that in another era might have been annoying but hardly criminal (wedgies). It is viewed by some as a battleground for gender equality, and for others, as a means for using the state to effect substantial changes --and to harmonize norms respecting--a broad range of conduct that is deemed sexual and with respect to which there is substantial controversy in society. But as important, that discussion of sexualization is also tied to a number of related issues, from the legal effects of individual interactions, to the complexity and degree to which such conduct might be minutely regulated, to the standards of liability, and to the procedural protections of both parties in disputes touching on sexualized conduct. My thoughts may be found here. 

This post considers the effect that the recent actions by the elite American Law Institute--in rejecting changes to the criminal statute on Sexual Assault in its Model Penal Code--may have provided a basis for seriously reconsidering the conventional university constructions of sexual violence rules adopted uncritically and at the instance of the federal education bureaucracy. 

An important subset of the discussion of sexual violence, of the scope of conduct deemed sexual, and of its legitimate performance by individuals, has focused on disciplinary practices of the American University.  That subset of discussion have been propelled in part by the Federal Government, whose control of university funding and whose regulatory authority through the power to manage accreditation, has effectively short circuited any discussion in favor if its preferred approaches to these issues (see this Department of Education Office for Civil Rights letter, especially pp. 10-12 and this Questions & Answers document (especially pp. 26-28 & 30-31). Despite substantial criticism of the standard, both as to its lack of protection of process rights and its consent standards (see, e.g., here, here, and here), most universities, unwilling to challenge federal power, have adopted the rules "suggested" by federal administrators, however much they might clothe this in more or less lofty language of principle and vision.  

To blame are two bureaucracies, one at the federal level, the other within individual colleges and universities, each emphasizing compliance over communication and common sense. Universities, perhaps stung by being called out on their prior inaction, overreached by allowing a class of professional campus administrators, insulated from the classroom, to pursue a maximally risk-averse strategy that went way beyond what the federal government was calling for and that put important values of academic freedom and fair process at risk on their campuses. At the same time, regulators in Obama’s Department of Education failed to do the early outreach that would have allowed them to see this overreaction coming, and compounded that mistake by failing to emphasize the limits as well as the requirements of Title IX. By so doing the department has threatened to bring into disrepute its own crucial effort to rid campuses of sexual violence and harassment. (Samuel R. Bagenstos, "What Went Wrong With Title IX, Washington Monthly, Sept./Oct. 2015)

The federal government has less authority to impose its approach hes generally on state criminal law, and perhaps even less power to affect robust discussion among legal and judicial elites.  One quite influential elite organization for legal reform, the American Law Institute (ALI), of which I am a part, has been embroiled in a discussion of these core issues touching on the criminalization of this broad range of sexualized conduct in the course of considering modification to the provisions on Sexual Assault currently provided in its influential Model Penal Code (e.g. here, and here).  At its May 2016 meeting, the ALI rejected an important element of a suggested change, one that ran in parallel to those put forward by the federal government as the standard for university administered sexual assault rules.

In a voice vote at the American Law Institute’s 93rd annual meeting at the Ritz-Carlton, Washington, D.C., the vast majority of an estimated 500-member crowd declined to amend the Model Penal Code to define sexual consent on an affirmative basis.

The MPC is a leading guide for state legislatures to follow when standardizing their penal codes. One of the items up for debate at the annual meeting was how to define “consent” in the context of sexual assault.

Standards of affirmative consent, which generally require parties to affirmatively and continually vocalize their willingness to participate in a sexual encounter, have mostly germinated on college campuses, as well as in a few states in some contexts, including California and New York.

The ALI’s consideration of such a standard has been met with much internal and external criticism.

A group of 120 members wrote a public letter denouncing the proposal, arguing affirmative consent improperly shifts the burden of proof onto the accused when charges of sexual assault are levied. By forcing the accused to prove the near-impossible — that a sexual encounter was vocally agreed upon at each stage — affirmative consent standards deny the accused due process rights, the letter said.

Brookings Institution Nonresident Senior Fellow Stuart Taylor Jr., who attended part of Tuesday’s meeting, applauded the ALI’s rejection of the affirmative consent standard as resistance to an ideologically-driven and unrealistic idea.

“I think it’s a very encouraging indication that the broad membership of the American Law Institute, which is a pretty elite group, has repudiated a radical expansion of sex-crime law that was sought by a powerful faction of people whom I regard as ideologues,” Mr. Taylor said.

He said the ALI’s acceptance of the provision wouldn’t have made affirmative consent “the law anywhere,” but added that it would have been a “step toward it being the law in a lot of places.”

He said affirmative consent is simply an unrealistic standard for governing sex.

“The general problem of affirmative consent is it ignores the reality of how sexual activities often happen, which is they often happen silently,” Mr. Taylor said. “People don’t say, ‘May I touch you here? May I touch you there?’ Or even if they said, ‘May I touch you here?’ they may go on to ‘there’ without verbalizing it.”

“If one party at one point in a sexual encounter is sort of passive, is sort of quiet, then that’s rape,” he said of the standard. “It makes it very easy for prosecutors to coerce plea bargains, or angry former sex partners to put someone in prison. They hardly even have to lie.”

Spearheaded by New York University Law Professor Stephen J. Schulhofer — an influential ALI “Reporter” who sat on a panel at the head of the Ritz-Carlton ballroom during deliberations — the affirmative consent amendment has been through several revisions since an initial draft was introduced in April 2015. Mr. Schulhofer could not be reached for comment.

E. Everett Bartlett, president of the Center for Prosecutor Integrity, who attended the meeting, said the idea of affirmative consent as a way to cut down sexual assault is alluring, but ultimately misguided.

“Affirmative consent sounds wonderful in theory; in reality, it’s a nightmare because it’s impractical, and there’s no way for an accused person to prove his innocence,” Mr. Bartlett said. “The overwhelming vote of the ALI membership to strike affirmative consent from the Model Penal Code was the right thing to do

The April 2015 draft defined the consent standard as “positive agreement”; a September 2015 draft dropped the affirmative consent standard for non-penetrative sexual acts; and a December 2015 draft termed the standard “contextual consent,” which critics argued was a distinction without a difference.

The Schulhofer-backed amendment introduced at the annual meeting was somewhat diluted, mentioning the importance of both verbal and nonverbal cues for determining sexual consent.

It defined consent as “a person’s behavior, including words and conduct — both action and inaction — that communicates a person’s willingness to engage in a specific act of sexual penetration or sexual contact.”

In its final form, the proposal did not require explicit vocalization before engaging in sexual acts, as other affirmative consent laws have. But Mr. Taylor said even though “they didn’t call it affirmative consent at the end, that’s what it amounted to.”

The amendment was met by a counter proposal, introduced by former U.S. Pardon Attorney Margaret Love, who defined consent as “a person’s willingness to engage in a specific act of sexual penetration or sexual contact.”

After nearly two hours of deliberations, one ALI member who was in the room said four-fifths of the crowd voiced support in favor of Ms. Love’s amendment.

The ALI still has to vote on other matters regarding sexual assault in order to completely reject the affirmative standard of consent.

Tuesday’s vote dealt with Section 213.0 of the MPC, which only concerns the definition of consensual sex. Section 213.2, for instance, which has not been voted upon, specifically addresses penetrative sexual assault.

After the ALI membership approves a section, only editorial, not substantive changes to the proposed statutory language can be made, meaning the content of Section 213.0 cannot be altered. Numerous other sections still need to be reviewed and approved by the ALI membership, which means final approval of the overall MPC is still a long way off.

The possible and perhaps necessary consequence of the ALI's actions should not be lost on universities.  This is a discussion with substantial repercussions for the construction by universities of sexual assault rule sunder Title IX. Some have suggested that the ALI's actions may have put some important brakes on the spread of affirmative consent in state laws. The rejection of affirmative consent may cause legislators to refrain from adopting affirmative consent in their states and reduce the influence of the approach adopted into the law of NY and California (see here for affirmative consent state by state). There were reports of some chatter at the ALI meeting itself among supporters of the rejected approach to the effect that the ALI project may actually harm their cause.

Others have suggested more caution in transposing the ALI's actions back within the discussion of university administered sexual conduct management and the relationship between that management and its federal oversight. They suggest that in the context of the university there should be space for a larger variation in approaches: (1) forbidding all sexualized conduct as defined by the institution (something akin to current rules at some religiously affiliated institutions); (2) something like an affirmative consent rule as an indirect means of effectively forbidding or suppressing much sexual conduct (or of moving students to more elaborate defensive strategies--for example recording sexualized encounters); (3) reaffirming conventional current legal standards; or (4)some other standard that reflects local values or institutional objectives.  

Either way, now may be time for even the most fearful and risk averse university administration to reconsider its blind and bureaucratic approach to the management of conduct on campus--from the extent of the definition of conduct deemed sexual, to the standard for liability and the procedural protections afforded where allegations are made touching on sexual violence. There is something to Samantha Harris' view reported for FIRE in the wake of the ALI's action:

Hopefully, colleges and universities—which have increasingly been adopting affirmative consent standards in their own sexual misconduct policies—will take notice of ALI’s decision.

Campus issues aside, ALI’s decision is a relief because it is (or should be) almost unthinkable that in a criminal court, where the defendant’s physical freedom is at stake, an accused person would effectively have to prove him- or herself innocent of sexual assault charges. But even in campus judiciaries, this burden-shifting can have a permanent and harmful effect on students, whose ability to obtain a college degree and, ultimately, a job may be dependent on their ability to prove themselves innocent of sexual misconduct charges. A Tennessee court judge put it well, in an opinion reversing the University of Tennessee at Chattanooga’s decision to expel a student for sexual misconduct using an affirmative consent standard:

[The accused] must come forward with proof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to an activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.

The ALI’s rejection of affirmative consent as a standard for adjudicating claims of sexual assault is a positive statement about the importance of due process, which is too often neglected in the assessment of how to effectively address sexual assault on campus and beyond.

These changes ought to evidence a substantial fidelity to those values that are the foundation of American political democracy and constitutional rule of law: strong process protections, clear standards, avoidance of substantial administrative discretion to interpret and apply standards, and standards that reflect the higher aspirations of our norms and expectations.  (Samantha Harris, "American Law Institute Rejects ‘Affirmative Consent’ Standard for Model Penal Code," FIRE May 18, 2016)

News media have already started to suggest these consequences.  I end with a recent editorial from the Detroit News.

Editorial: Preserve due process in sex assault cases
The Detroit News 11:54 p.m. EDT May 18, 2016

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. ( Bradford Richardson, "American Law Institute rejects affirmative consent standard in defining sexual assault," The Washington Times - Tuesday, May 17, 2016 ).