Michigan has had a rough month so far when it comes to campus sexual assault.
Earlier this month, the Department of Education’s Office for Civil Rights determined that Michigan State University had violated the federal anti-discrimination law Title IX in part because the school didn’t open an investigation into an alleged sexual assault, even though the accuser didn’t want one.
And just last week, the University of Michigan agreed to throw out its sex assault finding against Drew Sterrett, who had sued the university alleging his due process rights had been violated and that he had not committed the assault.
But despite what should be a wakeup call to rethink the way the state treats accused students, Michigan lawmakers have decided to introduce a bill that would result in more lawsuits like Sterrett’s, and maybe more investigations from OCR. “Yes-means-yes” — or “affirmative consent” — bills broaden the definition of sexual assault while narrowly or vaguely defining consent.
It labels drunk sex as rape, in some cases even if the woman (men are not absolved from drinking, but women are) had only one drink. In fact, under these laws, the only kind of sex that isn’t rape is question-and-answer-style sex, where each person in the encounter must ask and answer constant questions about consent. “May I touch you here?” “Yes, may I touch you here?” and so forth. Of course, an accuser never has to prove that she also asked such questions, or that the questions weren’t asked, or that consent wasn’t given.
No, the burden of proof is on the accused student, after the fact. Sometimes he must prove he obtained consent for an encounter weeks, months or years earlier. So in reality, under yes-means-yes policies, the only real consensual encounter is that which includes a question-and-answer-session throughout and is videotaped, because that is the only way to prove such a consent policy was followed.
Michigan joins 16 other states who have either passed or introduced bills regarding yes-means-yes policies.
There’s no guarantee the state will pass the bill, as only California and New York have passed similar laws. Michigan also has a Republican governor who, I hope, would uphold the constitutional protections of due process
Sexual assault is a crime, and no student — regardless of sex — should have his or her due process rights trampled because the accusation was made on a college campus and not in a court of law.
