In a consistent pattern in the recent debate over due process on campus, federal actions have triggered more aggressive reactions, both on campus and by self-styled activists and their media and political allies. The most obvious example of this has been California’s “affirmative consent” law (which, for reasons its sponsors have never explained, applies only to sexual assault claims among college students, not elsewhere). In perhaps the most notorious comment in this current wave of anti-due process activism, one of the law’s co-sponsors, Democratic assemblywoman Bonnie Lowenthal, reasoned that your guess is as good as mine” when asked how an accused student could prove that he obtained affirmative consent.
In a New York blog post Monday, Jonathan Chait doesn’t cite Lowenthal’s troubling assertion, but becomes perhaps the most prominent liberal commentator to express skepticism about the affirmative consent movement. Chait perceptively frames the law as an example of political overreach. The law, Chait noted, “is a massive broadening of the legal definition of rape, and a new blow in the culture wars that will likely reverberate in ways liberals have barely begun to contemplate.” He was particularly struck by the blasé way in which some of the law’s backers have defended the statute. People’s “intuitive beliefs about justice,” Chait reasons, are likely to be offended as California students start being branded rapists for engaging in behavior that virtually no one outside some quarters of the academy (and, it seems, the California legislature) consider rape.
Close followers of Chait’s writings (I count myself among them) doubtless know of his gentle disdain for all things Ohio, born of his status as a Michigan alumnus. But Chait’s alma mater is one of a number of schools (including University of Chicago, SUNY, Ohio State) that have recently redefined “consent” in college regulations in bizarre ways. Michigan, indeed, now appears to be the only school in the country to define sexual “violence” as including such items as “criticizing the partner sexually” or “withholding sex and affection.” A Michigan spokesperson noted that most students wouldn’t be deemed a perpetrator of sexual violence for withholding sex—that these issues merely “describe most accurately what occurs in an abusive relationship.” Nothing in the Michigan “guidelines” suggest that apply only to accused students who were in an “abusive relationship.”
This tendency toward absurd constrictions on due process prompted 20 attorneys to send a public letter to Senate co-sponsors of the McCaskill bill, expressing their concerns about how the legislation would play out in practice. Ashe Schow of the Washington Examiner posted the letter, which criticized the McCaskill bill for seeming to presume guilt (describing accusers as victims, for instance). The attorneys also correctly cautioned that “the complexity of the problem and the momentum to find a solution to the manner in which colleges handle these matters will overwhelm any effort to ensure fair treatment to and protect the rights of the accused — particularly with respect to due process, impartiality and the collection of evidence.”
Finally, an interesting proposal from Stanford student Jason Willick, seeking to locate a compromise between civil libertarians and victim’s rights advocates. Willick suggests that Stanford permit students to opt out of the university’s draconian sexual assault discipline system—which permits conviction on a non-unanimous vote, from jurors trained that an accused student presenting his case logically is a sign of guilt. If a sexual assault claim involved two students who had opted out, the matter would be handled exclusively by the criminal justice system. Otherwise, Stanford’s ARP would retain jurisdiction.
Given the realities of peer pressure, I’m not sure how many students would opt out, and the idea wouldn’t address the real due process problems for students who didn’t opt out or who didn’t confine their dating habits to other students who opted out. But the process of deciding whether to opt out would—at the very least—expose the student body to the school’s actual procedures in a way that might trigger grassroots pressure for fairness.