Evidentiary Standards in Campus Sex Crimes Cases
There is a huge difference between the standard of proof required for any criminal court in the United States versus what is required in an on-campus sexual assault case. In any criminal court in the United States the standard of proof is beyond a reasonable doubt. What that means is that the government has to prove their case in criminal court beyond any reasonable doubt.
In other words, if after a judge or jury hears all the evidence in a case, the standard is not that it is 51% likely that the person did it, which is a preponderance standard. The standard also is not that there is clear evidence that they did it, which is a clear and convincing evidence standard. Even if the government has more than enough proof, if after looking at all the evidence there is still a reasonable doubt, then the verdict has to be not guilty.
Reasonable doubt is a very high standard and it is there for a reason—to protect people from being convicted of something that they did not do without the due process of law that they are due under the Constitution.
Now, in a school setting, the standard of proof is very low. The standard is that the school or prosecution side has to prove that it is more likely than not, meaning more than 50% likely, that the student was involved in the sexual assault. That is a very low standard, especially considering the types of cases that occur on campus.
Affirmative Consent Laws and Evidentiary Standards
“Yes means yes” policies are rules that are starting to be promulgated in some schools. They require affirmative consent to sexual activity. Without obtaining affirmative consent a student runs the risk of being found to be involved in sexual assault, as opposed to in a criminal court where a prosecutor will have to prove that there was not consent.
It basically shifts the burden to the person who is accused, which cuts against the basic tenets of our criminal justice system. “Yes means yes” policies shift the burden to the student accused of the sexual assault to show that there was an agreement to participate in the sexual contact.
What is Affirmative Consent?
In the criminal context, affirmative consent it is not embodied in any law of which I am aware. In other words, there is no law that requires someone to obtain affirmative consent before having sex with their sexual partner. If someone is in a relationship with someone, they do not have to say, “Would you like to have sex?” and have the person give an affirmative “yes” before they have sex. Two people in a relationship have sex, however that may start.
Two people who just met each other for a one-night stand, under the laws of every state in our country, do not have to obtain affirmative consent. You do not have to ask someone to say, “Yes, I would like to have sex with you.” It happens naturally through ways with which we are all familiar.
What a “yes means yes” rule means is that in order to protect yourself from being accused of sexual assault, you have to obtain some sort of affirmative yes from your partner. It is not sufficient to say, “Well, we went out, we had a few drinks, had dinner, went to the movies, walked back to his or her place and we had sex.”
There has to be that extra step in there, “Yes, I asked them to have sex and they said, ‘Yes, I’d like to have sex with you.”
Low Evidentiary Standards Can Harm Accused Individuals in Court
Simply having a burden on the accused to prove they are innocent goes against the basic foundation of our justice system. In our justice system, you are innocent until proven guilty and the prosecution has to prove that you committed the crime. You do not have to prove you did not commit the crime. That is one of the cornerstones of our justice system in the United States.
The big problem is how do you prove affirmative consent? It is almost always going to be a one-on-one situation where you have one partner making an accusation and the other partner saying, “No, that did not happen” or “No, I had your consent.” Are schools going to require that the consent be in writing or in video, or that it be notarized? It is simply not a wise rule to be instituted.
Also, because there are already a variety of problems with campus judicial systems, the low standard is a huge problem because, essentially, all that is required to meet the burden of proof is just to make the accusation. In many cases just the accusation will satisfy the preponderance of evidence standard. For this reason it is a terrible standard, particularly for these types of cases.
An Attorney Can Help With Sexual Assault Allegations
With the preponderance of evidence standard in place and with the “yes means yes” rule being instituted on some campuses, it really starts to stack the deck against a student who is accused. You need someone who can help defend you against these types of accusations. You need someone who has dealt with these cases before on campus, because it is a treacherous road to navigate.