So KC Johnson is a historian and blogger who made something of a name for himself with his coverage of the rape allegations lodged against members of the Duke lacrosse team a few years back. Johnson returned to the subject of campus sexual assault yesterday with a response to Jaclyn Friedman’s weekend Washington Post op-ed on universities’ judicial policies.
It didn’t go well.
In a piece he wrote last fall, Johnson wildly distorted a post I’d written about an allegation of gang rape at Hofstra University. And now he’s at it again.
In the new essay he goes off the rails with his opening sentence, in which he refers to Friedman as “a self-described ‘writer, performer and activist’ who is ‘a dynamic and powerful performer who performs and agitates with Big Moves, a national size-diverse performance troupe.'”
Now, Friedman is all that stuff — Johnson isn’t lying — but the description he uses comes from her website, not the op-ed. In the Post, Friedman was described as “the editor of ‘Yes Means Yes: Visions of Female Sexual Power and a World Without Rape.'”
Yep. She’s not just a “self-described ‘writer,'” she’s the editor of (and a contributor to) a widely-read book on rape. She’s also — as her website points out — a widely published writer with a long history of involvement in campus women’s issues. But you wouldn’t know any of this from Johnson’s piece. Because he thinks it’s more important that you be told that she dances with fat chicks.
From that inauspicious beginning Johnson launches into the body of his argument, and quickly bungles his first big opportunity for productive dialogue.
“Campus judicial proceedings,” he says, “almost always deny to students accused of sexual assault … basic procedural protections.” I’m not competent to evaluate his “almost always,” but in essence I agree with him. Due process is often sadly lacking in campus judiciary hearings.
But Johnson is wrong about why that is, and how it works. It’s not because, as he puts it, campuses are “paragon[s] of political correctness.” It’s because their judicial systems too rarely give serious protection to any student’s rights.
Both accusers and accused deserve fairness and due process in campus judiciary procedures, but often both are denied it. Friedman’s essay provides a useful overview of these deficiencies — lack of training for administrators supervising the jucicial process, reliance on informal hearings and mediation, procedures that place a higher value on calm than on justice. Friedman is more interested in discussing the rights of victims than those of the accused, but due process isn’t a zero-sum game, and she doesn’t present it as one.
Johnson characterizes Friedman’s description of colleges as environments “of silence, rape apology and victim-blame” as a “wild” allegation, but snips out her explanation of why they’re that way — a powerful institutional interest in being perceived as crime-free. And that explanation is backed up by sound evidence. A 2002 study found that less than forty percent of American colleges were in full compliance with Clery Act requirements that they report violent crimes that occur on campus. (It found similarly low numbers, by the way, for the existence of sexual assault training for student judicial board members and resident assistants, clear written policies on the conduct of investigations, and — and Johnson will be interested in this — due process for the accused.)
Campus policies on rape aren’t designed to serve the interests of accusers, and they’re not designed to serve the interests of the accused. They’re driven by inertia and the institutional interests of the universities themselves. That fact creates an opening for the creation of procedures that better serve the interests of students on both sides of the judicial process, but Johnson is uninterested in exploring that possibility.
(Johnson would, he suggests, address the deficiencies of universities’ handling of sexual misconduct cases by having judicial systems get out of the business of adjudicating such cases entirely — such complaints should, he indicates, be handled by the police or not at all. This would of course be a change in university policy at least as radical as Friedman’s proposals, but it’s one that he barely bothers to defend.)
There’s a lot more to criticize about Johnson’s essay, and I’m not going to try to tackle all of it, but here’s another important piece:
Friedman proposes that colleges adopt sexual misconduct policies under which “any party to a sexual interaction” would be required “to make sure their partner is actively enthusiastic about what’s happening — not just not objecting.”
In response, Johnson wonders rhetorically how such consent would be demonstrated — “through videotape? a signed, notarized agreement?” But his question demonstrates a failure to understand the distinction between a conduct standard and a standard of proof.
In many instances of sexual assault, the only evidence of whether consent was given is the testimony of the parties involved. If there are no witnesses or evidence of physical trauma, and the fact of sexual contact is not in dispute, the question of consent often comes down to what the parties say happened, and — if they disagree — whose version is accepted by the adjudicating body. And this is, crucially, true whatever standard of consent is employed.
If Friedman’s standard were adopted, in other words, the burden of proof wouldn’t change. All that would change is the burden of the parties in determining whether consent existed at the time of the sexual contact itself.
Instead of a non-consenting party having the obligation to express that lack of consent, the initiating party would have the obligation to determine — verbally or non-verbally — that such consent existed. This standard is intended to deprive accused rapists of what Friedman calls “the ‘miscommunication’ excuse.” If you have sex with someone against their will, she argues, your obliviousness to their wishes should not be a defense.
The question of how consent should be defined is a big one — and, yes, it’s tricky. There’s room for reasonable people to disagree about how to answer it. But Johnson’s objections contribute nothing to that debate.
Campus policies on sexual misconduct could not be more consequential — either for the victims of such crimes or those accused of them. Johnson’s slapdash treatment of the subject does nobody any good.
31 comments
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March 17, 2010 at 1:02 am
Kenni Smith
Wow. Beautifully written. Thank you.
March 17, 2010 at 9:44 am
Mike Jarman
“Instead of a non-consenting party having the obligation to express that lack of consent, the initiating party would have the obligation to determine — verbally or non-verbally — that such consent existed.”
In the legal world, this is called “burden shifting.” This is not the neutral or benign activity as the author would suggest. By shifting the burden to the so-called “initiating party” to prove the “enthusiasm” of the other party’s response it makes it virtually impossible in a situation with no witnesses for that party to defend the charge. But, of course, that’s what the author WANTS. All the procedural “due process” in the WORLD will not protect an innocent in these circumstances, because the burden can NEVER be met.
Basically, this proposal would allow colleges and universities to expel any student who is accused whether or not the individual is even charged with (let alone found guilty of) an actual crime. But, of course, that’s what the author WANTS.
March 17, 2010 at 10:09 am
Angus Johnston
No, Mike, you’re making exactly the same error that Johnson makes. Changing the consent standard doesn’t alter the burden of proof.
Let’s consider two hypothetical criminal prosecutions for sexual assault, each with a different standard for consent:
In Scenario A, the legal consent standard is one in which a charge of sexual assault will be sustained if it’s found that the complainant said no or physically resisted. In this instance, the complainant asserts that she said no, and the accused denies her account.
In Scenario B, the consent standard is one in which a charge of sexual assault will be sustained if it’s found that the complainant did not consent verbally or non verbally. In this instance, the complainant asserts that the accused initiated sexual activity, and that she was unresponsive. Again, the accused denies her account.
In each of these scenarios, a jury would have the same obligation — to decide whether the charge had been proven beyond a reasonable doubt. If they concluded that it had, they’d find the defendant guilty. If they concluded that it hadn’t, they’d find the defendant innocent.
Once again, changing the consent standard doesn’t shift the burden of proof. They’re two completely unrelated questions.
March 17, 2010 at 11:03 am
abyss2hope
Thank you for this post. The change Jaclyn proposes matches the legal standard of affirmative consent used without any controversy in most areas of the law.
If Mike Jarmin were correct and this standard of affirmative consent presumes the person claiming consent to be guilty and requires that person to prove innocence then all criminal cases must change immediately to presuming everyone’s consent for everything and we must abandon all affirmative consent standards.
March 17, 2010 at 11:08 am
Mike Jarman
Wait a minute, Angus, you’ve now morphed a discussion about college-university imposed discipline to discussion about new definition of “consent” as a criminal, legal standard? Wasn’t this thread about campus judicial proceedings? [Remember, the criminal burden of proof is high, the burden of proof in a campus judicial proceeding is not so high.]
As to your point about the “jury having the same standard,” yes the standard is the same, but the prosecutor’s level of proof has dropped to near nothing. The “old” rape standard was that the victim had to resist. Back in those days, to prove the case the prosecutor had to show physical injuries to the victim. Now you don’t. But, if we were to go further to the standard suggested on this thread, essentially, it would become the defendant’s obligation to show that the defendant’s advances were met by mutual interest. How does one show that? I think Johnson is right, you’d have to videotape the encounter.
March 17, 2010 at 11:29 am
Angus Johnston
I used the example of a criminal prosecution because that’s a circumstance in which the standard of proof is established and understood. And, no, a change in the standard does nothing to change the level of proof required, as I indicated.
You ask how it would be possible for a defendant “to show that the defendant’s advances were met by mutual interest.” I’d think that in virtually any consensual, mutually enthusiastic sexual encounter, it’d be easy to make such a showing. There’s verbal consent, obviously. There’s mutual participation in initiating activity. There’s physical and verbal responsiveness.
That’s what kind of baffles me about this question, frankly — the idea that in a run-of-the-mill mutually pleasurable sexual act it’d be somehow impossible for one partner to know whether the other partner is participating freely and enthusiastically.
If, in the course of a sexual encounter, both parties are initiating new activities, both parties are making their desires known, both parties are expressing their excitement and pleasure, then the existence of enthusiastic consent is going to be obvious. And if that’s NOT happening — if one partner is doing all the initiating, if the other partner is being completely passive, if that partner is not indicating enthusiasm in any way — then shouldn’t that be a huge red flag, regardless of legal standards of consent? Wouldn’t that be a reason to slow down, to check in, to ask if anything was up?
When you ask how a person could know whether their sexual partner was actively consenting, I’m really tempted to ask how a person could NOT know.
March 17, 2010 at 11:40 am
abyss2hope
Mike, the prosecutor’s level of proof has not dropped to near nothing. Requiring proof of resistance means that rape of the incapacitated is either explicitly or implicitly legal and so too is the rape of people who are terrified that if they resist they will be murdered. If resistance must be required for fair prosecutions then the same standard must apply to all crimes.
If you don’t know how mutual interest (freely given consent) is expressed and can be related in a trial or a hearing then that’s a serious failure on your part. If the only way you can understand that someone is not consenting to have sex with you is having that someone trying to poke your eyes out then you don’t understand consent well enough to be initiating sex with anyone.
March 17, 2010 at 11:42 am
Mike Jarman
The point is not how one would “know” that they’re engaging in a nonconsensual encounter. Would I want my college-aged son or daughter to “slow down, to check in, to ask if anything was up” under the circumstances you posit? Of course. Frankly, I’d expect a lot more of them. Again, that’s not the point.
The advocates on this thread want colleges and universities to impose discipline (suspension, expulsion) in circumstances where a party initiated sexual activity and then did not satisfy a DUTY to “determine — verbally or non-verbally — that such consent existed.” Thus, to avoid the discipline, the initiator must come forth with affirmative evidence that the initiator received verbal or non verbal consent. That’s the essence of a duty, the element of the case is that you did or did not meet the duty.
March 17, 2010 at 11:42 am
Angus Johnston
I should make clear, by the way, that I’m not endorsing enthusiastic consent as a legal standard OR as a standard to be used in campus judicial proceedings. I honestly haven’t done enough research on it to have a settled opinion on that question. As an ethical framework, however — as a way of organizing one’s thoughts about sexual ethics, and a way of structuring conversations on that subject — I’ve found it incredibly valuable.
March 17, 2010 at 11:48 am
Angus Johnston
The affirmative evidence, though, can be the testimony of the accused. That’s no less true here than in any other dispute between two people in which no physical or witness evidence exists.
That’s the point I keep making — it’s not uncommon at all for a sexual assault case to rest on a determination of whose testimony is more plausible. That’s the case now, and it’d be the case under this standard. Nothing changes from that perspective.
Yes, this new standard would impose a duty — don’t have sex with someone unless you have their consent. But that duty isn’t new. That duty exists now. The only change, as I understand it, is a change in what you may present as evidence of such consent. The only change is that you can no longer offer “she didn’t say no” as such evidence.
What am I missing here?
March 17, 2010 at 11:48 am
Mike Jarman
“If the only way you can understand that someone is not consenting to have sex with you is having that someone trying to poke your eyes out then you don’t understand consent well enough to be initiating sex with anyone.”
abyss2hope, if your style of engagement is to mischaracterize what I’m saying, and attack me personally, then you’re not getting a response from me.
March 17, 2010 at 11:56 am
Mike Jarman
Angus, once one has a duty, once must demonstrate as an element of the proceeding that one met that duty. In the university judicial process you posit, where the initiator says that the initiator obtained consent, and the alleged victim says no consent was affirmatively given, the evidence is at equipoise and the initiator loses the case, unless there is other evidence available or unless the alleged victim recants or says something else that renders the alleged victim’s testimony less credible.
March 17, 2010 at 12:08 pm
Angus Johnston
Whoa. Slow down.
There’s nothing in this standard that imposes a “duty” in the technical term-of-art sense in which you appear to be using the term. Nothing. There’s nothing inherent in the concept of an enthusiastic consent standard that would mandate that a particular campus judiciary find in favor of a complainant in circumstances in which the facts of a case are in dispute and they’re unable to reach a conclusion about who’s telling the truth. That’s just not on the table here. It’s not present in Jaclyn’s op-ed, it’s not present in my characterization of the standard, and it’s not present in any document that you or KC Johnson have referred to.
Campus judiciary proceedings use a variety of standards of proof. Some operate by preponderance of the evidence, some articulate a reasonable doubt standard. Many, I strongly suspect, offer no formal guidance on the question. The idea that the two words “enthusiastic consent” would sweep all that away, forcing all campuses to find accused rapists at fault in any circumstance in which the facts of an incident remained ambiguous at the end of an investigation, is — as far as I can see — entirely without basis.
Where are you getting this from?
March 17, 2010 at 12:30 pm
Mike Jarman
“Friedman proposes that colleges adopt sexual misconduct policies under which ‘any party to a sexual interaction’ would be required ‘to make sure their partner is actively enthusiastic about what’s happening — not just not objecting.'”
As expressed, that it a legal duty (i.e. the “would be required” language). The instigator can only demonstrate adherence to the policy by evidence that their partner was enthusiastic AND that the instigator was able to objectively ascertain that enthusiasm.
And there is a legal consequence: loss of position in the college or university.
March 17, 2010 at 12:42 pm
Angus Johnston
No, Mike. You’re still mixing up two separate concepts. The duty to do something and the duty to prove that you did something are not the same duty.
Here’s an analogy:
Let’s say that a campus code of conduct includes the following language: “Students are required to pay for any merchandise they remove from the university bookstore.”
That’s a duty, right? It’s a requirement. It’s an affirmative obligation. If you’re going to take something from the bookstore, you have to pay for it.
Okay.
So let’s say a student is accused by a campus cop of shoplifting a magazine. She says she paid for it, the cop says she didn’t. She didn’t keep her receipt, there’s no security camera footage of the transaction, the cashier doesn’t remember one way or the other. It’s the cop’s word against hers.
By your logic, the word “required” in the code of conduct would mean that the student would be automatically found guilty of a code violation.
But that’s obviously not the case, right?
The student is required to pay for stuff she takes out of the store. But whether, when accused of not paying for stuff she took out of the store, she’s then required to prove that she did pay … well, that’s a separate question. The standard of proof is a distinct and unrelated issue that will properly be dealt with elsewhere in the code.
And that’s where we are with the enthusiastic consent thing. In each of these hypotheticals, the code imposes a requirement that a student do X (obtain affirmative consent before having sex with someone in the one case, pay for items before removing them from the store in the other), but it’s silent as to what happens if the student is accused of not doing X.
March 17, 2010 at 12:45 pm
Angus Johnston
Shorter version of the above. If Friedman had proposed that parties to a sexual interaction be required to prove that they had made sure their partners were actively enthusiastic, then your analysis would be right. But she didn’t, so it isn’t.
March 17, 2010 at 1:07 pm
Angus Johnston
And, just to fine-tune the analogy a little further, let’s say it’s a fellow student who accused her of shoplifting. Because there’s no implication in the “enthusiastic consent” standard that either party’s version of events is to be given more weight than the other’s.
March 17, 2010 at 2:02 pm
Mike Jarman
But violating sexual misconduct policies does have consequences. If one is accused of engaging in sexual misconduct, one is brought before judicial review with the potential for suspension or expulsion.
The issue in the adjudication is the conformance of the initiator’s conduct to the standard. Assuming both parties agree that the encounter occurred, the initiator must show that he or she met the standard, that is that he or she “determine[d] — verbally or non-verbally — that such consent existed.” Voila! Burden of proof. You don’t have to use the word “prove” to be advocating a conduct definition that results in a burden shift.
March 17, 2010 at 2:12 pm
Angus Johnston
There’s no burden shift. There’s nothing in the “enthusiastic consent” standard that says that the initiator “must show” anything. Again, the burden of proof remains where it’s always been, and that burden is going to vary from campus to campus depending on how their judicial system is constituted. If it’s preponderance of the evidence, that’s where it stays. Ditto reasonable doubt.
We’re going around in circles here, but I’ll ask you one last question before giving up: If a campus code says that students “are required to pay for any merchandise they remove from the university bookstore,” and one student accuses another of shoplifting, where does the burden of proof fall in a subsequent judicial investigation? Is it on the accuser, on the accused, or does it depend on the wording of the campus judicial regulations?
If your answer is “the accused,” why? If your answer isn’t “the accused,” how do you differentiate that conduct code language from the language under discussion here?
March 17, 2010 at 2:45 pm
Mike Jarman
One of the difficulties of sexual misconduct is that it a unique circumstance that doesn’t analogize well to other offenses. Rather than argue the deficiencies of the analogy, I’ll simply agree with you that the “burden shift” of which I’m speaking may never appear in any standard written for the judicial proceeding.
What I think you understand Angus is that the question of: “did the accused engage in intercourse without the victim’s consent” is different that the question:”did the accused “determine[d] — verbally or non-verbally — that [such] consent existed” before engaging in intercourse. Under the former standard (and assuming the process presumes innocence – not a given in the academic world), the accused need demonstrate nothing. Also, if the evidence is in equipoise, the “tie goes to the runner.” Under the latter standard, the first question is not the victim’s conduct – although that would be a follow-up issue – it is the accused conduct, and the breach is not doing something , but failure to do something (i.e. affirmatively ascertain another’s state of mind). So the accused says: “I determined consent existed.” Already, the accused has to proffer evidence that didn’t have to be produced under the other standard. Whether the “tie goes to the runner” with evidence in equipoise is a lot less clear, because the prosecutor need not demonstrate lack of consent, only that the accused did not properly ascertain consent.
March 17, 2010 at 2:56 pm
Angus Johnston
There are a bunch of big issues to respond to here. I’ll be back to respond to them later.
March 17, 2010 at 4:22 pm
abyss2hope
Mike, I did not mischaracterize what you were saying. My example highlighted that you are promoting the recognition of only the most stereotypical indicators of non-consent in criminal trials and in civil hearings. Clearly, by your response, you get that non-consent is not limited to someone trying to disable you.
You don’t want personal attacks yet your position baselessly attacks the testimony of all rape victims.
If you genuinely have someone’s freely given consent there are specific positive indicators of that positive consent which can be brought up in court or a college hearing. However, if all you have is guesswork and “knowing” that the other person was consenting then you don’t actually have consent and the alleged victim’s testimony that there was no consent is accurate.
March 17, 2010 at 4:30 pm
abyss2hope
Mike, you are confusing people’s legal duty and the accompanying burden placed on citizens to not commit crimes as they live their lives with the issue of legal duty and legal duty in a criminal court or in a hearing.
March 17, 2010 at 4:52 pm
abyss2hope
Mike, I disagree with you that sexual consent is a unique circumstance. It has been turned into a unique circumstance with convoluted requirements by those who want to baselessly dismiss the testimony of alleged victims and to therefore dismiss all but the most violent sex crimes.
Your standard for sexual consent must place all people in a default position of consenting to sex or there would be no difference between “did the accused engage in intercourse without the victim’s consent” and ”did the accused “determine[d] — verbally or non-verbally — that [such] consent existed” before engaging in intercourse.
If you are not going to proceed with sex without someone’s consent how are you going to do so without determining that the other person is consenting?
March 17, 2010 at 7:36 pm
Mike Jarman
Yes, the “default position” of any adjudication where the presumption of innocence applies is that there was no violation. Therefore, assuming the gravamen of the charge is the presence or absence of consent (as opposed to, say, that there was no intercourse at all) then it is for the person leveling the charge to prove lack of consent by whatever standard of proof applies in that forum (for a criminal trial, beyond a reasonable doubt).
Under the current standard in most states, there must be evidence of lack of consent. And yes, in many jurisdictions a jury can convict on the testimony of the victim alone, if that testimony is more credible than the testimony of the defendant.
However, under the proposed, revised standard [”did the accused determine — verbally or non-verbally — that consent existed?”] which is being advocated for a non-criminal inquiry (where the burden of proof is often preponderance of the evidence) consent is not determined by the action or non-action if the alleged victim, but by the action or non-action of the alleged perpetrator.
March 17, 2010 at 10:03 pm
Angus Johnston
It’s actually not unusual for a sex assault charge to depend on the actions of the perpetrator, Mike. (In fact, it’s so not-unusual that I’m having a hard time believing I’m writing that sentence.)
If someone has sex with someone who is unconscious, or drugged, or underage, or mentally impaired, it’s assault. “The the action or non-action if the alleged victim” is irrelevant.
And no, that doesn’t mean the burden of proof shifts to the defendant in any of those cases.
March 17, 2010 at 10:03 pm
Angus Johnston
“If you are not going to proceed with sex without someone’s consent how are you going to do so without determining that the other person is consenting?”
This is a really good question.
March 18, 2010 at 1:05 am
abyss2hope
Mike, you are incorrectly positioning someone accused of wrongdoing or a crime being judged based on their own actions as violating due process rights when judging defendants based on their own actions is something that happens in all non-sexual offenses.
By your standard it must not be a prosecutable crime for someone to punch you whenever you did not explicitly communicate your lack of consent for being punched. That person must instead be judged on your action or inaction since that person can claim to have acted under the belief that you were consenting.
Consent is something a specific person does for a specific action never something that person fails to do.
March 18, 2010 at 7:56 am
Mike Jarman
We’re not even speaking the same language. I’m talking about elements of a crime that the prosecutor normally has to prove. Angus, you’re generally talking about particular fact patterns that may or may not be elements of a crime. (Underage is an element of a statutory rape charge.)
We’ve been wasting our time, here.
I think we’re wasting our time.
March 18, 2010 at 10:12 am
abyss2hope
Mike, you’ve been repeatedly using the burden of proof in a sex crime trial to nullify the legal burden each of us has before taking sexual actions. That is a misuse of language not a misunderstanding of language.
March 18, 2010 at 11:20 am
Angus Johnston
If you’re talking about the elements of a crime that a prosecutor has to prove, then the question of whether this standard shifts the burden of proof is a red herring. It can’t.
That’s why I’m so confused. There is no circumstance in American criminal law in which changing the elements that make up a criminal act shifts the burden of proof from the prosecution to the defense. That just doesn’t happen. It can’t happen.
And yet you keep insisting that if you make a change that’s exactly parallel in a campus judiciary system, that’s what inevitably will happen.
Yes, I think we’re wasting our time.