Advocates for due process knew this day was coming. We knew that one day colleges would notice that there was only one way for students accused of sexual assault would be able to defend themselves and that the colleges would make that defense itself a violation of policy.
Of course the new policy is coming out of California, which led the way in inserting campus bureaucrats into the bedroom with its "affirmative consent" policies. These policies mandate how students must engage in sexual activity – not as a passionate act but as a contractual question-and-answer session. The only way to prove one followed such a policy is to videotape the encounter, but now, California colleges are making such recordings a violation of school policy.
Due process advocates knew that one day a student would try to record an encounter to retain evidence that he obtained sober consent. We also knew that if an accuser claimed she was too drunk to consent to sex, someone would make the argument that she must have also been too drunk to consent to a recording. And that's where the new policy comes in.
In a Q&A with the University of California's daily newspaper, the Daily Bruin, Title IX officer Kathleen Salvaty said students could be expelled for recording sexual encounters without consent.
Salvaty had been asked about the new policies including mandatory minimums for sexual assault, which include a two-year sanction for most cases. We'll set that aside for a moment. Salvaty said the sanctions can include expulsion, and listed the offenses that were subject to the mandatory minimums.
"Aggravated conduct is sexual assault, domestic violence or stalking, in which at least one of the following factors is present: use of force, causing or taking advantage of incapacitation or recording or showing sexual images without consent," Salvaty said.
New policies in effect at California universities also shift the adjudication process away from hearings and evidence and deliberation to the single-investigator model, which is opened to severe bias. Now, an investigator and the university (who is under pressure from the Education Department to find more students responsible) will conduct the investigation and determine culpability. If the accused student is found responsible he or she (more likely he) can appeal the decision and only then will he get a hearing.
The odds of the appeal body overturning a decision will be slim when the evidence they have is from a biased investigator. I've seen cases where appeals courts refuse to accept new evidence from accused students and end up affirming the original decision. The new California policies all but guarantee accused students will be found responsible without a fair or impartial investigation.
Now back to the mandatory minimums. These schools don't provide accused students with the means to defend themselves (and are now actively punishing them for providing the only evidence they could possibly present in their favor) and then want to impose mandatory minimum sanctions. Schools in California are railroading students and then ruining their lives without any care for the truth or due process.
Men looking to attend school in California should take note.
Salvaty did not respond to a Washington Examiner inquiry prior to press time.
Ashe Schow is a commentary writer for the Washington Examiner.