ASHE SCHOW: One year in, ‘yes-means-yes’ policies begin to fall apart.
One recent ruling, limited in scope but broad in its potential ramifications, addressed the yes-means-yes policies head-on. Judge Carol McCoy addressed two of the biggest concerns shared by opponents of yes-means-yes — the burden of proof being shifted onto the accused, and the nearly impossible task of proving such consent was obtained.
McCoy overturned a University of Tennessee-Chattanooga ruling that a student accused of sexual assault failed to prove he did obtain consent. Of course, such proof could not be obtained, as there are very few ways — and even fewer legal ways — to provide such proof.
“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,” McCoy wrote.
To be fair, there is nothing in yes-means-yes — sometimes known as affirmative consent — policies that require schools to shift the burden of proof onto accused students. But in practice, that’s what happens, just as it did at UTC. As McCoy pointed out, accused students “must overcome the presumption inherent in the charge that the violation has been established.” Simply denying the allegation is seen as “insufficient.” The accused then becomes responsible for proving “the converse of what is taken as true and credible, i.e., the complainant’s statement that no consent was given.”
And he — it is almost always a he — must do so without witnesses or video of the event. That’s a high bar for an accused student, who is often blindsided by the accusation weeks, months or even years after the encounter happened. . . .
Yes-means-yes policies require both parties to obtain consent from each other in order to engage in sexual activity. But in practice, the accusing student is absolved from obtaining consent once the accusation is made, which retroactively puts the onus on the accused to have obtained consent.
The adoption of one-sided policies, aimed almost exclusively at males, is itself sex discrimination and creates a hostile environment for male students. Sadly, my own institution is moving down that path. And, weirdly, it’s doing so despite legal concerns about its approach:
Richter is expecting a challenge to this definition of consent from several courts.
“We had some indication from around the country that this is going to be not looked upon kindly by courts.We know of two court cases at least that are saying, ‘That’s ridiculous,’ ” Richter said.
Despite that, Richter and the university are standing firm by the definition.
“They (the courts) don’t deal with university students on a regular basis. These are very complex situations, so it’s going to be difficult and these things will be challenged. We felt, at the UT community, that this was the best way to move forward with a different way of thinking about these issues,” Richter said.
I suppose Ben Rose will be happy, anyway.