The politics of campus due process are most unusual. Since the emergence of crime as a major (federal) political issue in the 1960s, Republicans have tended to be the tough-on-crime party, Democrats more concerned with the rights of the accused, especially when the accused are poor or racial minorities. (Obviously there have been exceptions in the case of both parties.) But in the case of campus sexual assault, it’s been the Democrats—from President Obama on down, and especially including Senators Kirsten Gillibrand and Claire McCaskill—that have been the tough-on-crime advocates demanding the decimation of due process protections. Republicans have either been willing accomplices (Marco Rubio, Chuck Grassley) or basically acquiescent (the House Republicans who have allowed the Office for Civil Rights to escape without meaningful oversight).
It remains to be seen how—or even if—Congress will further weaken students’ due process rights over the next two years. But the odd politics of campus due process means that students’ rights are particularly vulnerable in the nation’s most liberal states. California led the way, enacting an “affirmative consent” law that effectively replaced the presumption of innocence with the presumption of guilt. When asked how an accused student could defend himself under the law’s terms, the measure’s co-sponsor, Assemblywoman Bonnie Lowenthal (D-Long Beach), candidly replied, “Your guess is as good as mine.”
Cuomo and the Language of “Survivors”
Affirmative consent came to New York via an executive order from Andrew Cuomo. Now the Democratic governor seeks to codify the concept into law. Cuomo’s fiscal year 2016 executive budget contains a wholly non-budgetary provision—a plan to rewrite, by statute, the definition of sexual assault, though only when the state’s college students are accused through a campus disciplinary process. Cuomo seems intent on outdoing Assemblywoman Lowenthal for indifference to due process.
The most extraordinary provision of Cuomo’s proposal is a “victim and survivor bill of rights.” He is referring here not to students who filed a claim of sexual assault and saw their attacker convicted in a court of law—or even saw their alleged attacker found culpable through the OCR-mandated, due-process unfriendly system currently used at SUNY. No, according to Cuomo’s language, the mere filing of a sexual assault complaint on campus transforms the accuser into a “victim” or “survivor.”
Many of the provisions of the “bill of rights” are reasonable, even commendatory—except that Cuomo has decided that a person becomes a “survivor” before any adjudication takes place. For instance, the list of rights includes the right to “confidentially or anonymously disclose a crime or violation.” But alleging a “violation” of campus procedures is just that—an allegation—and the person making the allegation is an accuser or at most an “alleged victim.” Tellingly, Cuomo’s budget provisions do not once include the word “alleged.”
Then there’s right (e) of the proposed bill of rights: “Be free from any suggestion that the victim/survivor [sic, at this stage of the process] is at fault when these [alleged] crimes and [alleged] violations have occurred, or should have acted in a different manner to avoid such a crime.” A reminder: the central pretense of the campus adjudicatory process is that it deals exclusively with violations of student conduct policies, not with crimes, and therefore no meaningful due process is required. I suppose New Yorkers should be relieved that Cuomo has at least conceded that campus rape is a crime.
That said, imagine how an accused student could possibly defend himself, given that the accuser is to be given—as a matter of state law—right (e). Could he suggest that the accuser actually consented to the sexual intercourse? It appears not, since this line of defense would suggest the accuser was at least partially “at fault” for what occurred. Could he contend that the accuser simply lied? Again, it appears not, since this line of defense would suggest the accuser “should have acted in a different manner” (that is, the accuser should not have lied). It would seem that the only line of defense open to an accused student under right (e) would be to claim that someone else committed “such a crime.”
For someone who believes, as Cuomo apparently does, that the filing of a claim in and of itself transforms an accuser into a survivor, right (e) makes perfect sense. For those who believe in the presumption of innocence, however, the “right” is horrifying.
The budget proposal seeks to codify “affirmative consent,” in odd ways. “Affirmative consent is a clear, unambiguous, knowing, informed, and voluntary agreement between all participants to engage in sexual activity [emphasis added].” The run-up to what percentage of consensual sexual encounters between college students can be described as “unambiguous”? What’s the difference between an “informed” and “uninformed” agreement? The vagueness of this language makes it almost impossible for an accused student to defend himself.
Cuomo also seeks to tell New York college students that “consent is active, not passive.” What is active consent? Can a student be deemed a rapist if a disciplinary panel concludes that the accuser only gave “passive” consent? What would passive consent look like? And how can a student distinguish between active and passive consent before engaging in intercourse? Cuomo offers no guidance.
Cuomo notes that incapacitation vitiates consent—a reasonable standard, until he redefines “incapacitation.” (Unlike the hopelessly vague “unambiguous” or “active” consent, the governor takes pains to define incapacitation.) “Incapacitation includes impairment due to drugs or alcohol [emphasis added],” according to the governor. By this standard, a substantial plurality, and perhaps a majority, of sexual intercourse between college students would constitute rape. Of course, the overwhelming percentage of such encounters won’t lead to rape charges. But that makes Cuomo’s new definition all the more arbitrary.
Due Process and Adjudication
Cuomo authorizes interim punishments before any investigation occurs. When the “accused” is a student, “victims and survivors” (again, note the improper juxtaposition of language—when the subject is just “accused” and not found culpable, there is no “victim” or “survivor,” only an alleged victim) have the right to demand a no-contact order. If the two students happen to encounter each other accidentally in a “public place” (the campus quad?), “it is the responsibility of the accused to leave the area immediately”; if he does not do so, he could be subject to additional punishments. More problematically, the budget says that an accused student can be subject “to an interim suspension pending the outcome of a conduct process,” provided a determination exists that he’s a threat to the “health and safety of the community.” How could any student accused of sexual assault not fit this broad definition? For all practical purposes, the budget calls for mandatory suspensions upon the filing of a claim. After all, the person who files the complaint is, without question, a “survivor.”
In the adjudicatory process, Cuomo seeks to ensure that all disciplinary panelists “receive annual training in conducting investigations of sexual violence.” Given the way in which this training has tended to make panelists more likely to find the accused culpable, it’s not surprising that Cuomo included it. (Imagine the outcry if Cuomo, during his tenure as state attorney general, had demanded that all jurors in rape trials receive special training that his office had prepared, designed to make it more likely they’d reach a guilty verdict.) The governor also calls for allowing accusers to testify by telephone or “with a room partition,” both of which seem to conflict with his guarantee of a “fair” process for the accused. In the criminal defense process, such provisions are regularly used only in cases of very small children; is this how Cuomo views college women in New York?
As part of this “fair” process, Cuomo also seeks to give the accuser the right to exclude “prior sexual history or past mental health history from admittance in the college disciplinary stage that determines responsibility.” No state has such a broad rape shield law, and for good reason. Imagine its application (taking an easy example) to the Duke lacrosse case. There, the prior sexual history of—in Cuomo’s language—“survivor” Crystal Mangum was vital to the defense, since it provided an explanation for the only “injury” that she allegedly suffered (diffuse edema of the vaginal walls). And if a trial had occurred, the contents of Mangum’s 1000-page mental health file would have been critical for the defense to explain her actions. But according to Cuomo, if Mangum made her allegations on a New York college campus—public or private—this vital exculpatory evidence would have been barred.
Despite the significant due process concerns that Cuomo’s proposals raise, there’s little indication that they will encounter much resistance from the Republicans who control the state Senate. A document prepared by the Senate majority staff criticizes other aspects of Cuomo’s executive budget, but appears to support the anti-due process provisions on grounds that they’ll create consistency at all New York schools. It also quotes (pp. 210-211) the “victim/survivor” language without any critical reaction.
Training All Students
Cuomo demands what he calls an “onboarding” campaign, in which new students (both first-year students and transfers) at all New York colleges will receive “training” on eight items related to his policy. This training will employ “multiple methods,” such as “peer theater” and—incredibly—“course syllabi,” raising academic freedom concerns. Beyond this generalized instruction, colleges will need to “provide specific training to members of groups identified as likely to engage in high-risk behavior.” Imagine the (appropriate) outcry from civil libertarians if certain types of New Yorkers were required to receive specific, government-mandated “training” based solely on their membership in a group, instead of on the basis of individual responsibility.
All of this activity will require a massive new bureaucracy—to conduct the training, to provide a variety of mandated reports, and to engage in “occasional assessment” of these new programs. The budget section contains no state aid to fund this bureaucracy.
Perhaps the only redeeming element of Cuomo’s proposal is a throw-away line that disciplinary proceedings are governed, “where applicable, [by] the due process provisions of the United States constitution.” How Cuomo’s policy can in any way be reconciled with the due process provisions of the Constitution the governor does not reveal.