A University of Miami Law professor is criticizing “yes-means-yes” sexual consent laws and the burden of proof shifting that comes along with them.
Professor Tamara Rice Lave published a blog on PrawfsBlawg, a website run by a group of law professors from around the country.
“When I was a public defender, I used to always remind jurors that because the BOP was on the prosecutor, I could literally say nothing, and still, if the D.A. didn’t prove the case beyond a reasonable doubt, they would have to acquit,” Rice Lave wrote. “But with affirmative consent, the accused must put on evidence. If the university proves by a preponderance of the evidence that a sex act happened, the student has violated the university code of conduct unless he can convince the fact finder that the complainant consented.” (Emphasis original.)
Rice Lave went on to praise Judge Carol L. McCoy of Tennessee for her recent ruling that the University of Tennessee could not force a student to prove a crime didn’t occur. In that case, McCoy ruled that “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.”
I’ve written in the past about the near-impossible hurdles accused students face in proving their innocence. There is no such thing as evidence, as witnesses are often barred from testifying and text messages provided to show friendliness between the accused and accuser are ignored or worse, written off as coming from a state of fear.
The fact is that there is simply no way to prove one obtained consent outside of a videotape, as Judge McCoy suggested. Following yes-means-yes policies to the extreme (treating each sexual encounter as a contractual question-and-answer session) doesn’t guarantee someone won’t be accused later. An accuser can simply say she didn’t consent and, unless the accused has evidence to the contrary, he is expelled and branded a rapist.
It’s good to see more and more law professors speaking out against the absurdity of the current campus culture in response to an alleged campus rape epidemic.
