Thursday, August 8, 2013

Slap on the Wrist for "Non-Consensual Sex"


Yale University has recently come under fire for punishing rape -- sorry, "non-consensual sex" -- with a slap on the wrist, a mere written reprimand. The story has been picked up by the usual outlets, Jezebel, Wonkette, and a petition (complete with a trigger warning, in case you didn't already know that a petition about rape might contain a discussion about rape).

Why the term non-consensual sex? Yale has very helpfully issued a statement explaining the decision:

Yale uses the term “non-consensual sex” to describe a range of behaviors that fall within the University’s broad definition of sexual misconduct. This definition requires clear and unambiguous consent to each activity at every stage of a sexual encounter. Moreover, Yale applies a “preponderance of the evidence” standard (a lighter burden of proof than the “beyond a reasonable doubt” criminal standard) to determine misconduct. In this way Yale is able to — and does — impose discipline for improper conduct that would not meet a criminal standard.

I know I wouldn't want to have my sex life scrutinized under that standard, because frankly, I haven't a clue what it means. Every stage of a sexual encounter -- just when does a sexual encounter start? If you're coming over for a booty call, I'd think the "sexual encounter" begins with the door opening, possibly even earlier with whatever Snapchat message got the ball rolling. Do you have to get "clear and unambiguous" consent before kissing? Have to break off kissing and get consent to progress to second base? If you get permission to go from second to third, do you need permission to return to second? Because under Yale's description it sure sounds like you do.

Then there's the part where consent has to be "clear and unambiguous" at every single stage, so if there was an ambiguity during all those consents, you're now a non-consensual sexer.

A: "Do you want to have sex?"

B: "Yeah."

Whoops! Not clear and unambiguous. B only expressed a desire to have sex, which is not the same as giving consent. Anyone who's ever said or heard "I want to, but we should wait" understands that desire is not consent, so that "Yeah" just bought you a one-way ticket to sexual assault land.

A: "I want to go down on you."

B: "Okay."

Go directly to Jail. Do not pass Go. Do not collect $200. That "okay" could have been "you have my permission," but it also could have been "I am acknowledging your desire, but have not expressed my opinion either way." And just to pile on, if the "Yeah" was meant as "I consent to sex" and the "Okay" was meant as "I consent to oral," you're still in violation of the Yale rules because while you do have consent, the consent was not clear and unambiguous. That's right, Yale's view on sexual assault creates a bizarro world where you can be found guilty of sexual misconduct even when you have consent.

It's starting to make a lot of sense that Yale would ditch the rape label, because the offense looks nothing like what people generally understand rape to be.

Then there's the punishment. It's hard to argue that a written reprimand for rape is anything but obscenely inadequate. ...But I'm going to argue that anyways. You see, in the first year of law school I learned about a little concept known as Due Process. Granted, it was in a civil procedure course rather than criminal procedure, but crim pro isn't even required, just crim law, and anyways that's beside the point because using Ye Ol' Thinking Like a Lawyer I'm able to take a concept from one area of law and apply it to the other.

In criminal law we're used to the idea that the punishment must fit the crime, but due process tells us there's another side to this: the stakes must fit the process. The more that's at stake, the more process you are entitled to in order to ensure a just outcome. That's why you don't get the same procedure for challenging a speeding ticket as you do for challenging a criminal charge, and why there's a whole bunch of administrative type proceedings that fall short of a full trial.

Normally the process follows the stakes. The state wants to punish you or take something away, and then has to give you the appropriate procedural protections. But in the case of sexual misconduct on a college campus, the procedure is handed down from up on high, by the Departments of Education and Justice. What's that procedure look like?
The accused is not afforded the right to counsel. Don't confuse that with the right to have counsel provided for you. The accused can be denied the right to bring in his own counsel during an interrogation or hearing. The prosecution may be an attorney though, and in any case will have a lot of experience, so you can imagine the imbalance here going up against a kid who's never been in a situation like this before. 
The accused is also not allowed to confront the accuser -- Title IX protects the emotions of the accuser, but there is no law protecting the right of the accused to a fair proceeding. Likewise, the accused has no right to cross examine any other witnesses. 
The accused needs to be found guilty only be a preponderance of the evidence. While Yale describes this as "a lighter burden of proof than the 'beyond a reasonable doubt'" standard, it's more accurately described as "the lightest possible standard." Or if you care about reaching the right decision, it can be described as "the standard most likely to result in a wrongful conviction." Or if you consider how schools are pressured not to doubt the word of an alleged victim, the burden of proof would be rightly called, "Guilty until proven innocent," and since you can't question the accuser, we should probably just go ahead and call it "Guilty." 
Oh yeah, the accuser has the right to appeal a not guilty verdict, so there's a whole double jeopardy thing, too.
It's very tempting to look at the accusation of rape and say that what's at stake should be expulsion, but when you look at the procedure, it becomes entirely reasonable for a university to say the most they're willing to put on the line is a written reprimand. When you have a robust procedure, the school could at the end of the process say "We're quite certain you committed a sexual assault" or even "We're convinced beyond all doubt," and then punish you with expulsion, but with this level of procedure a guilty verdict doesn't mean you were guilty -- it's little more than "You were accused."

Want rapes to be labeled as rapes? Then tailor your definition so as to actually describe rape. Want rapes to be punished severely? Then get a procedure that's the designed to have a real chance at figuring out who's guilty.