It has been nearly a year since Democratic California Gov. Jerry Brown signed into law the first-in-the-nation “yes-means-yes” policy on sexual consent. Since that time we’ve seen more schools adopt the policy, more lawsuits from students and more rulings from judges determining the merits of campus kangaroo courts.
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. Sometimes these policies require the initiator of the sexual activity to be the one who must obtain consent. But again, the accuser is absolved of such responsibility once an accusation is made.
Such was the case at Occidental College, where both students in an incident were likely too drunk to consent under the standard, and by witness accounts the accuser initiated the sexual activity. But once she filed a claim, the responsibility to prove consent fell on the accused student.
If both parties are responsible for obtaining consent, then realistically both should have to prove they obtained consent. That is not what is happening in practice. When the Occidental student tried to file a counterclaim alleging he was unable to consent under yes-means-yes policies, his complaint was dismissed. The school said the reason was the timing — he filed after he had already been accused.
The implications of yes-means-yes policies are clear: Accused students are the ones responsible for proving consent was obtained, and they are afforded few resources to do so.
