“Yes Means Yes” Laws May Pose Bigger Problems for College Students

This series has previously identified problematic elements of college codes of conduct using a new “yes means yes” standard in judging alleged sexual misconduct, and described one recent California case (Doe v. Regents of the University of California, San Diego) – there are others, with many more likely in store – where a state judge voided a college disciplinary proceeding as fundamentally unfair and violating a student’s due process rights.

The California case highlighted a fairly large number of ways college disciplinary proceedings involving sexual misconduct claims can violate students’ basic rights to a fair hearing.  These are rights they would have in a criminal court hearing: to be represented by counsel, examine evidence, cross-examine witnesses and invoke rights against self-incrimination and against a longer sentence in retaliation for filing an appeal.

Unfortunately, that doesn’t exhaust the defects of college disciplinary hearings. New “yes means yes” laws, like those adopted in California and New York, have other serious defects and can have far-reaching repercussions. To review briefly, the “yes means yes” standard goes beyond the well-established “no means no” standard, which requires one participant to stop a sexual act to which another participant objects.

Instead, “yes means yes” requires a participant to receive affirmative approval before beginning any sexual act. Without express, voluntary, conscious, mutual consent in advance, any type of sexual conduct can become serious misbehavior, even if it would otherwise be student explorations of no concern to the school and state.

One fundamental problem with “yes means yes” is its absence of clarity on how the required manifestation of consent is supposed to occur. Unlike aircraft pilots meticulously working down a pre-flight takeoff checklist on their clipboards, college students in the process of hooking up are unlikely, even if completely sober, to be able to document exactly who said what and responded what to whom when.

I’m not suggesting the Department of Education should issue clarifying regulations (as you’ll see below, they’ve done quite enough harm already), only that such a vague standard can leave everyone in doubt and leave some students, perhaps long after the fact, in deep trouble. Plus, unlike the normal presumption of innocence, “yes means yes” essentially presumes students engaging in sexual acts are guilty of sexual assault, unless they can establish their innocence by proving they received affirmative consent. On either count, vague standards or the wrong burden of proof, “yes means yes” may well be unconstitutional.

The DOE for several years has opined on how schools should handle sexual misconduct complaints. In fact, it mandates that hearings into sexual misconduct complaints base their decisions on a “preponderance of the evidence” standard of proof. A criminal court, of course, has a much higher requirement: proof of guilt beyond a reasonable doubt.

DOE advises schools they’re under no duty to tell local law enforcement about complaints they’ve received of students’ clearly criminal sexual misconduct, but justifies its far lower standard of proof for student hearings on the grounds schools can’t send offenders to jail. But that doesn’t mean a college disciplinary hearing cannot bring serious, long-lasting consequences.

Even beyond school discipline up to and including expulsion, a school hearing’s decision that a student engaged in sexual misconduct not only makes it unlikely the student can continue his or her education anywhere, but could also hurt chances of admission to many professions and employment prospects generally.

One member of the Washington, D.C. City Council recently proposed legislation to require local colleges to add permanent and prominent notices on transcripts of students when a school hearing found they had committed a sex offense, or withdrawn from school before the completion of hearings on such charges. It’s a fairly safe bet that won’t be the end of such proposals.

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