Making Sense of “Yes Means Yes”

Posted in: Criminal Law

In September of this year, California Governor Jerry Brown signed into law a bill that changed the meaning of sexual consent for undergraduate campuses whose students may receive financial assistance from the State of California. The law includes a variety of important provisions, but for purposes of this column, I will focus on one: the law defines rape by the absence of an affirmative indication of consent from the alleged victim (rather than by the presence of either verbal or physical indicators of non-consent). In this column, I will discuss this aspect of the new law and evaluate some of the arguments that have been offered in opposition to it.

Why Change the Law?

In May of this year, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a memo listing fifty higher education institutions with open Title IX sexual violence investigations. This means that these schools’ responses to sexual abuse and violence on campus have come under suspicion and might well be actionably inadequate. The institutions included both Harvard College and Harvard Law School, a proper source of embarrassment for those of us who matriculated at either institution.

Title IX of the Educational Amendments Act of 1972 is the federal law prohibiting sex discrimination in educational institutions. One form of sex discrimination is institutional indifference or inability to respond properly to sexual assault on campus. Accordingly, the apparent failure of so many colleges to effectively prevent or otherwise address the large number of sexual assaults that take place on college campuses indicates a problem, one that might perhaps be amenable to resolution through changes to campus codes of conduct.

The California law passed earlier this year represents one response to this disturbing state of affairs in which institutions of higher learning have evidently been either unable or unwilling to protect the sexual safety of their students. To the extent that women (disproportionately the victims of sexual assault outside of the prison context) cannot safely navigate their college careers without fear of sexual assault and other sexual misconduct, their experience of education cannot be accurately characterized as equal to that of men. Changes in campus codes, required by the California law and urged by the OCR, then, result from a salutary impulse to improve the lives of the women and men who may be vulnerable to sexual predation.

Yes Means Yes: What Does It Mean?

In one sense, it might seem an unimportant matter of semantics whether a code says that “no means no” or that “yes means yes.” In “Take Back the Night” marches against acquaintance rape that took place when I attended college, the chant was, “However we dress, wherever we go, yes means yes and no means no.” So if both of those things are true, why should it make a difference whether a campus code defines rape in terms of the absence of “yes” or the presence of “no”?

One answer is that “yes means yes” provides a default setting of “no.” That is, if a man and a woman are alone in private, the “yes means yes” approach provides that if the woman sits silently and does not affirmatively indicate, by either her words or her conduct, that she is interested in having sex with the man, then the man is prohibited from engaging in sexual conduct with the woman (or, perhaps more accurately, upon the woman, since she is by hypothesis not participating). I say “the man” and “the woman” here because this is the most common scenario in which allegations of sexual assault arise, but the same holds true for situations involving two males, two females, or a man and a woman where the silent and inactive member of the couple is the man. It also applies to groups of more than two people.

Okay, readers might say, the default setting is “no.” But why does a default setting of “no” matter? As then-Professor and now-Dean Michelle J. Anderson very ably explained in her 2005 article, Negotiating Sex, a woman who has previously been traumatized or who feels like her will is irrelevant to her partner will sometimes freeze with fear and find herself unable to say “no” or otherwise to actively resist what is happening. Though we speak colloquially of a “fight or flight” response to threats, a third alternative in the emergency repertoire of humans and other animals is “freeze.” If a woman finds herself in this situation, then a “no means no” legal standard fails to do what she needs—to demand that her partner refrain from touching her and check in to make sure she is comfortable with his advances. If she stares blankly into space or says nothing at all in response to his inquiries, then the right thing—the non-rape thing—for him to do is to leave her alone.

Even if the woman is, moreover, capable of saying “no” or of indicating her lack of interest through physical or other nonverbal resistance, a “yes means yes” standard effectively conveys to her would-be partner that she should not have to resist, that engaging in sexual relations is something that individuals in couples choose to do with each other, not something that sexually aroused individuals get to do to other, unmoving, individuals, so long as the former encounter no active resistance from the latter. The “yes means yes” approach says something affirmative about what sex between consenting adults is really about—it is an interaction between two (or more) people, absent some express, mutually-agreed-upon departure from this model.

By contrast, the “no means no” approach effectively conveys the message that when two people are in each other’s company voluntarily and in a potentially romantic context (such as a date), one of those people may simply presume the sexual consent of the other, so long as the other does not actively rebut that presumption through words or conduct. If a woman is staring into space or simply looking at her date, for example, the date—under a “no means no” approach—can undress the woman and insert either a finger or his penis into her vagina—without ever receiving any sort of invitation or indication of desire from her. Simply going out on a date with him hands over the keys to her own sovereignty over her bodily integrity unless and until she says, “Stop” or “No, I don’t want to do this.”

The message that passivity is consent not only reflects a stereotype about the active and passive roles of men and women in sex; it may prescriptively encourage men to think about passivity as an invitation and to avoid talking with their partners to make sure everyone is on board with what is happening.

In a “no means no” world, then, the “no trespass” sign that ordinarily accompanies every person navigating the world is removed from people who are on a date and alone with a partner, and the woman (or the more vulnerable member of the couple, who may or may not be a woman) is now “open for business.” This presumption conforms disturbingly to the idea that rather than having the question of rape revolve around whether she does or does not consent to sex, a woman who wants to avoid being subject to unwanted sex must carefully plan where she goes, how she dresses, and with whom she spends her time, not just as a practical matter but as a matter of law. It should not, however, be the case that in potentially sexual situations, the job of the less active member of a couple is to proactively stop the other member of the couple from imposing himself upon her sexually.

The requirement that sexual partners obtain “consent” quite logically requires that something affirmative be obtained. The absence of complaint—particularly in a world where many people are traumatized and feel unable to assert their interests when they collide with someone’s else’s desires—is not consent. It is just nothing, and nothing alone does not justify sexual intercourse.

Avoiding Rape Versus Proving Rape

One common critique of the “yes means yes” standard is that if a victim must say yes or otherwise affirmatively indicate an interest in having (or a willingness to have) sex before sex take place, then this will mean that the burden of proof in a rape case effectively shifts from the person complaining of a crime to the person defending himself against an accusation. As one example, Florida International University Professor Emeritus Gordon Finley, an advisor to the National Coalition for Men, claims that under a “yes means yes” approach, “it is virtually impossible to ‘prove’ affirmative consent for a man.” He continues that “[m]en are presumed guilty and have to prove their innocence . . . as opposed to the criminal justice system in which men and women are presumed innocent and must be proven guilty.”

Finley’s suggestion, which I have heard from others as well, is mistaken for a variety of reasons.

First, the definition of an offense has nothing to do with the burden of proof. The definition simply tells everyone (including potential perpetrators and potential victims) what the law requires in order for a sexual encounter to be called “consensual” and, on the contrary, what it requires in order for the encounter to be classified as a rape or sexual assault. If the campus code places the burden of proof on the accuser, then the burden remains on the accuser, regardless of how the misconduct is substantively defined.

Under a “yes means yes” framework, then, where the burden of proof is on the accuser, the accuser must persuade the fact-finder by whatever standard of proof (whether “beyond a reasonable doubt,” “clear and convincing evidence,” or a “preponderance of the evidence”) that the events in question happened in the way that she says they happened and that, specifically, the accused engaged in sexual conduct with the accuser in the absence of either verbal or behavioral indications of interest in having sex. If the factfinder thinks there is a 50-50 chance that the complaining witness said “yes,” for example, and a 50-50 chance that she said “no,” then the factfinder will find for the accused, given that the burden is on the accuser. The definition of rape thus leaves in place the perpetrator’s presumption of innocence.

Second, in order to obtain a finding of guilt, given that the burden of proof is on the accuser, it will likely be necessary for the complaining witness to provide testimony. That is, she cannot just sit back and say nothing, as could a party whose opponent bears the burden of proof, because she must convince the trier of fact that things happened in the way that she claims they did. Once she testifies, of course, there is some pressure on the defense to offer a counter-narrative, but that is hardly unique to the sexual assault context—once the prosecution has presented its evidence of the defendant’s guilt, the defense will always feel some pressure to offer evidence pointing in the other direction.

An accuser’s testimony that the accused engaged in sexual intercourse (or some other sexual interaction with her body) without any affirmative consent, whether verbal or nonverbal, from her, is itself evidence. It is evidence of the perpetrator’s guilt on the basis of which a factfinder may and ought to be able to conclude that the things she described did indeed occur. Again, in all criminal cases, juries are empowered to find a defendant guilty on the basis of eye-witness testimony by a victim, and we do not ordinarily characterize this fact as either unjust or as shifting the burden of proof to the defense.

Critics of acquaintance rape prosecutions more generally (as well as of the more demanding “yes means yes” approach to consent) frequently speak of a woman’s testimony in an acquaintance rape context as somehow inherently unworthy of belief or as “less than” the sort of evidence that usually generates fact-findings in a court of law. Critics use the expressions “swearing contest” and “he said/she said” to manifest their skepticism about how a fact-finder could possibly draw the conclusion that a rape really happened on the basis of mere testimony from a victim that it did, opposed by testimony from an accused perpetrator that it did not.

If we look closely at the motives in place as well as at the typical resolution of disputes in court, however, we can see that this “swearing contest”/”he said/she said” talk represents a thinly veiled expression of sexism that harks back to misogynistic ideas about women from centuries past. When a woman testifies that a man had sex with her without her consent (whether that lack of consent takes the form of a vocal “no,” or of silence in a “yes means yes” regime), she has given the factfinder evidence of a crime that, unlike other crimes, is likely to cause shame and embarrassment to the victim reporting the offense. As a general matter, then, there is no positive benefit—and much detriment—that comes to a woman from testifying that a man has raped her. Lying about rape is thus a bizarre and peculiar thing to do, and there is no structural reason to expect such lies to be uttered on a regular basis in court.

For a man who stands accused, by contrast, there is plenty of reason for him to say he did nothing wrong, regardless of what the truth might be. That is, like all criminal defendants, the accused in a rape case has a powerful motive to claim that he is innocent. This motive is—in most criminal cases—so well understood by juries that according to a study published by R. L. Wissler and M. J. Saks back in 1985, juries do not consider a defendant’s prior conviction for perjury especially informative in assessing his credibility. According to the study, the jury generally regards the credibility of a criminal defendant—structurally driven to say “I am innocent” no matter what happened—as so much lower than that of other witnesses in a criminal case that proof of his character for veracity has little to offer in terms of exposing the truth about his testimony.

In short, if we want to call the dispute between a rape complainant and a defendant denying the accusation a “swearing contest,” it is—all things being equal—a properly one-sided contest between a woman who has no structural reason to lie, and a man who has every reason to say “not guilty” about himself, irrespective of what really happened.

Yet I routinely run into otherwise sensible people who cannot seem to accept that a woman’s testimony that she was raped is strong prima facie evidence that she was in fact raped. They similarly cannot appreciate the fact that a man’s testimony that he committed no rape is weak evidence of his innocence. People do sometimes falsely accuse people of rape, just as people sometimes falsely accuse people of other things, but there is no reason—other than rank sexism—to systematically distrust rape accusations or to assume that the accuser and the accused in an acquaintance rape case are equally likely to be lying.

In most cases, testimony is a crucial part of determining what occurred in a contested case and whether what occurred did or did not violate the law; a sudden skepticism about testimony in the context of rape is therefore unwarranted.

The “yes means yes” law, moreover, has a second aim. It is not solely a tool for determining what happened once there has already been a rape accusation. It has another important function that has been largely ignored by critics of the new law. That function is to teach college students what it means to have a consensual sexual relationship with another individual.

When one individual is interested in having sex with another, the law tells the former that the desire to have sex is not enough of a reason to go ahead and touch another individual. There is another person whose autonomy, interests, and wishes must also be taken into account, and the best way to do that is to look for affirmative indications of sexual interest (or ask a question) rather than simply viewing the other person as an obstacle course to be overcome. It may be the case that some women who would not have even known to call what happened to them “rape” will, when asked, “is it okay if I go ahead?,” say “actually, it isn’t.” The California law and the campus codes that it requires, if followed by people embarking on sexual experiences, will accordingly give women (and men) the space in which to say when they are truly interested in a sexual engagement and to safely withdraw into their own thoughts when they are not interested but prefer to avoid being confrontational with someone who appears committed to his sexual objectives.

“Yes means yes,” if taken to heart by the men and women on college campuses, will lead people to take responsibility for checking in with a partner rather than surrendering themselves to what they may believe without any evidence to be a mutually desirable sexual encounter. People tend to be motivated to draw conclusions that allow them to do what they already wanted to do, a motivation that could easily lead an aroused person to imagine that the stillness and silence of a partner somehow evidence a desire to have sex. “Yes means yes” represents a positive intervention in the bedroom (or dorm room), one that informs initiators of sexual interaction that there is someone else in the room with them who must affirmatively consent before permissible sex can happen. Perhaps, if things go well, we will see fewer after-the-fact complaints, because couples will be led to have actual conversations about what each person wants before it is too late.

Posted in: Criminal Law, Education

Tags: Legal

11 responses to “Making Sense of “Yes Means Yes””

  1. SomePerson says:

    Maybe you, as a law professor, can resolve one of the most important issues I have with the current legislation. It seems, to me, that “ascertaining ongoing consent” necessarily includes “ascertaining consent prior to initiation” of a specific sexual acitivity. As such, it seems to me that proponents of this law – like Kate Harding writing for Dame Magazine about a recent episode of the tv show The Mindy Project, in which Mindy’s partner attempts anal sex without prior affirmation of consent – are mistaken in their assessment that affirmative consent can be legally given for an initiation after said initiation has already occurred.

    I quote from Harding’s article –

    “I thought the episode was groundbreaking, not just because it was the first depiction of attempted butt sex on prime time, but because I can’t recall ever seeing adult partners on TV negotiate their sexual boundaries, in and out of bed, using words! The show is a comedy, but it took consent more seriously than approximately 99.9 percent of pop culture offerings in my memory. As a staunch feminist and author of a forthcoming book on rape culture, I was delighted—until I discovered that some people are characterizing Danny’s thwarted attempt to “steal fifth base” as sexual assault. According to this logic, because Mindy hadn’t signed off on anal in advance, at the precise moment peen hit butt, he became a rapist. Oof. You guys. Let’s just think about this for a minute. I don’t usually find myself saying this to people who are extremely sensitive about sexual boundaries, but I do find myself saying it a lot in my line of work: For pete’s sake, consent is not that fucking complicated.”

    Again, it seems to me that Harding is explaining what she wants the law to say, but not what the law is actually saying: it’s logically impossible to have ongoing affirmative consent without having had prior affirmative consent for the sexual activity in question. The “sexual activity in question” certainly raises another level of difficulty, but that’s another question.

    Similarly, there’s a youtube video made by a group of consent activists called ultra violet that depicts what they deem affirmative consent. The woman grabs the unsuspecting pizza boy, kisses him, and then asks if that is ok. He then says “yes”, but not before.

    To me, what both the video and Kate Harding are describing is the classic no-means-no standard which allowed initiation without *prior* affirmation of consent. It seems to me that this “prior” aspect of the law is not completely understood by a lot of proponents of the law. But I may be wrong. Maybe you can help clarify this matter.


  2. tuckerfan says:

    Please forgive the pop-culture reference, but I am having visions of Sheldon Cooper preparing a multi page, densely worded “Coitus Agreement”. Seriously though, one of the reasons that many people place the testimony of the complainant on similar footing with the accused is that we have all seen cases of next day regret, and the rare cases of outright lies (remember the Duke Lacross team?). This is a tough area but either go all the way and require written consent, or do what should have been done in the first place, have schools step up their investigation and enforcement priorities.

  3. Hans_Bader says:

    This article seems to inadvertently misrepresent the California law, in a way that makes it appear reasonable when it in fact is quite unreasonable, poorly drafted, and harmful to both men and women in different ways. (The law’s description as an “affirmative consent” law may be misleading as to its radicalism, because the law requires “clear” “agreement,” not just consent in a broader sense of it being welcomed after it occurs).

    First, the article’s reference to “sexual partners” makes it sound like affirmative consent is only required under the law for sex (where that is feasible) and not for intimate touching (where agreement in advance is not feasible, since such touching is welcomed after it occurs, not agreed to in advance). But the law applies to “sexual activity,” which, as Ramesh Ponnuru notes at Bloomberg News, has been interpreted by some colleges to cover mere kissing and touching, not just sex. The law is so poorly written that it does not even define the term “sexual activity.”

    This is important, because no normal human “agrees” — verbally or non-verbally — on whether a particular touching of intimate areas will occur. No one says, “may I touch your breast” or “may I massage your cl___” before doing so, and “clear” non-verbal “agreement” on such touching is not possible in advance of the touching. By contrast, sex itself is a mutual activity, and unless your partner just lies there like a mattress, their active participation in facilitating the sex is probably clear non-verbal “affirmative consent.”

    If the law applies beyond sex to all intimate touching and kissing — as its most enthusiastic supporters advocate — then it will, in the words of one of the law’s own supporters, require “state-mandated dirty talk” at many, many stages of a sexual encounter, as I have explained at CNS News. This is just not feasible, unless you wish to interrupt making out or foreplay with an endless succession of verbal exchanges amounting to a gabfest. This is harmful, since sex itself is a form of communication, not a vacuous activity that needs to be constantly interrupted by verbal communication.

    Such an “affirmative consent” requirement would be extremely harmful to shy people, since no shy man will be able to bring himself to say things like “may I massage your cl—” and no shy woman will want to hear them. My wife certainly would not like to have to reach “clear” “agreement,” verbal or not, during our sexual encounters. For her, like most women, “no means no” is a far more comfortable, and respectful, way of proceeding.

    Mandating such state-compelled speech and “agreement” (even where the sexual encounter is itself implicitly welcome) raises serious First Amendment problems under Supreme Court decisions like Wooley v. Maynard (1977), invades students’ privacy in violation of freedom of intimate association (under decisions like Lawrence v. Texas (2003) and Wilson v. Taylor (1984)), and constitutes state-sponsored sexual harassment in violation of rulings like Bator v. State of Hawaii and Hartman v. Pena, 914 F.Supp. 225 (N.D. Ill. 1995)).

    Small wonder that the California law has been criticized by the Foundation for Individual Rights in Education; the Los Angeles Times and Orange County Register; former ACLU Board member Wendy Kaminer; Batya Ungar-Sargon at the New Republic; columnist Megan McArdle at Bloomberg News; Cathy Young at Real Clear Politics; Ashe Schow at the Washington Examiner; Michelle Goldberg at The Nation; and Jonathan Chait at New York Magazine.

    • SouthOhioGipper says:

      That is the entire point of the law. To.change American culture fundamentally so that your wife would feel it necessary for you to seek her direct permission for sex, rather than you just assuming. That is really what this is about. Putting women in the power position, even in the bedroom.

  4. Hans_Bader says:

    California’s misleading “affirmative consent” law might potentially ban even many passionately wanted, mutually-enjoyed instances of intimate touching, as I explain at this link, due to the vague and thoughtless way it was drafted (the California law, SB 967, requires “clear” “agreement,” not just consent in the ordinary sense; when my wife and daughter suddenly hug me without asking for permission, I consider it consensual, but there is no “agreement” to it, and thank goodness for that, whatever a wacky California legislator may think):

  5. SouthOhioGipper says:

    This is absolutely laughable. This article assumes that the people running these civil actions are truly neutral, unbiased third parties! THEY ARE NOT. They are biased against men, automatically seek to remove male parties from the regardless of any evidence.

  6. disqus_w1HRUQo331 says:

    One thing that seems common to many of the interactions between men and women is that men are assumed responsible for a lack of responsibility on women’s part.

    Two college kids get drunk, have consensual sex, and she later decides that she was too drunk to give consent? So, he “raped” her? Ah, if they were both drunk, wouldn’t this mean she “raped” him because he wasn’t capable of giving his consent? This law, like many others, is written in technically gender-neutral language, but with men as the intended target. I would give high odds that when both are drunk, the women get a pass and the men get punished.

    I am not optimistic about the possible future social environment for my son. I guess it comes under the general wisdom that “if you think things are as bad as they can get, you have overlooked something.” I faced a presumption of guilt for most of my employment history. In addition, my son now faces a presumption of guilt in his dating activities. (I didn’t know how lucky I was.) I have advised him to consider dating only off-campus women so he will still be entitled to real legal due process.

    I did extremely well in my dealings with family law because I understood the law and used prenuptial contracts to protect myself against the default conditions that could have paid my exes huge amounts of money to divorce me. Note that family law usually throws out prenuptial contracts if the women did not get separate legal counsel. It is apparently too much to expect even an intelligent, well-educated, adult woman to be responsible for seeking legal counsel if she doesn’t understand the contract. Instead, this becomes the man’s responsibility to ensure that the woman understands what she is signing. Fortunately, I was aware of this idiocy and when my fiancees resisted seeing a lawyer, I refused to marry them until they did.

    But, things appear to be getting even worse for men. Society has not consistently decided whether or not women are fully competent adults who are responsible for their own voluntary actions and/or inactions. For example, British Columbia’s new (2013) family law removes the pesky problem of a man’s unwillingness to consent to marriage by simply declaring the men to be “spouses” against their will. It is apparently too much to expect that if a woman wants to be married she is responsible for getting a man’s consent? Of course, the purpose of the law is mostly about taking money. If it were about marriage, a responsible woman could just insist upon marriage or terminate the relationship. British Columbia has decided that “no doesn’t mean no” when a man refuses marriage.

    Until society consistently treats women equally (like men) as adults who are fully competent and responsible for their actions/inactions, people should be very careful about just assuming (absent verification) that women can be held responsible for anything in their interactions with men.

  7. Yet I routinely run into otherwise sensible people who cannot seem to accept that a woman’s testimony that she was raped is strong prima facie evidence that she was in fact raped.

    That’s called innocent until proven guilty. Good to know it’s still at least somewhat routine in America.

    [T]he jury generally regards the credibility of a criminal defendant—structurally driven to say “I am innocent” no matter what happened—as so much lower than that of other witnesses in a criminal case….

    And that’s called prejudice. Against precisely the person who’s supposed to be protected by due process. I’d think a U.S. law professor would consider that a

    [T]his “swearing contest”/”he said/she said” talk represents a thinly veiled expression of sexism that harks back to misogynistic ideas about women from centuries past.

    Ah, name calling. Is this how Professor Colb also trains our future lawyers?

    Anyway, we’re especially concerned about credibility with rape cases for a reason. They much more often turn on one person’s word over another’s, for obvious reasons.

    They also hinge on not only consent but also how it was communicated and whether one could have legitimately thought there was consent. Which in turn often hinges on context, including the complainant’s and defendant’s particular relationship and its history.

    When a woman testifies that a man had sex with her without her consent (whether that lack of consent takes the form of a vocal “no,” or of silence in a “yes means yes” regime), she has given the factfinder evidence of a crime that, unlike other crimes, is likely to cause shame and embarrassment to the victim reporting the offense.

    Far less so now than when Professor Colb and I were growing up, thanks in part to advocates like her. And that’s a good thing.

    As a general matter, then, there is no positive benefit—and much detriment—that comes to a woman from testifying that a man has raped her. Lying about rape is thus a bizarre and peculiar thing to do, and there is no structural reason to expect such lies to be uttered on a regular basis in court.

    Has Professor Colb actually researched false accusations and why people sometimes make them?

    Criminal profiler Pat Brown has. And she’s given a list of reasons girls and women falsely accuse boys and men of rape, including:

    * Getting attention.

    * Inflicting revenge.

    * Covering up after getting pregnant, catching an STD or cheating and then getting caught.

    Are those reasons “structural” enough, whatever that term even means?

    Or does structural mean “the only thing that applies to each and every case, and once I know that I don’t need to look into it any further”? And isn’t that also known as prejudice — in both senses of the term?

    As for the defendant’s motives…yes, of course he (or she) would have a motive to claim innocence. That’s not a motive to lie unless we already know that the defendant is guilty. But of course we can’t know that…it’s precisely what a trial is supposed to find out.

    “Professor Colb produces child pornography!” Now she has a great incentive to say she does not. So, is she likely lying, and do we now have strong prima facie evidence that she does in fact produce child pornography?

    In May of this year, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a memo listing fifty higher education institutions with open Title IX sexual violence investigations. This means that these schools’ responses to sexual abuse and violence on campus have come under suspicion and might well be actionably inadequate. The institutions included both Harvard College and Harvard Law School, a proper source of embarrassment for those of us who matriculated at either institution.

    Hmmm…If Professor Colb gets that famed letter from Publishers Clearing House saying she might well be already a winner, should she quit her job and put a down payment on a mansion in Monaco?

    More to the point, what should a law professor be encouraging people to keep in mind about those who have merely come under suspicion? That the point of an investigation would be to decide whether or not wrongdoing actually happened, no?

    I would expect a sophomore Social Justice Warrior to try to insult our intelligence with this kind of sophistry, not a law professor. But then again:

    People tend to be motivated to draw conclusions that allow them to do what they already wanted to do….

    And if Professor Colb’s post here is any guide, she has a guilty-until-proven-innocent agenda, at least for accusations of rape and sexual assault.

    By the way, I’m a Cornellian myself. And Cornell, until very recently, has set the example of due process with its own student conduct procedures. A Cornell Law professor — let alone one who teaches Constitutional criminal procedure — pushing this dangerous nonsense is, in my opinion, a proper source of embarrassment.

  8. Mark Huffman says:

    “As a general matter, then, there is no positive benefit—and much detriment—that comes to a woman from testifying that a man has raped her. Lying about rape is thus a bizarre and peculiar thing to do, and there is no structural reason to expect such lies to be uttered on a regular basis in court.”

    This statement is extraordinarily simplistic and ignores the realities of how all of this plays out on college campuses in 2014 and 2015.

    For some women, especially young women, there is plenty of benefit to lying about a rape. This is when she engages in activity (under the influence of alcohol usually) that she later regrets. The recent Amherst College case is a great example. Woman has sex with her roommate’s boyfriend and is then socially ostracized by the roommate and many friends. She admits as much via text messages, both what she did (while he was incapacitated) and that she regrets it. Lying about what happened doesn’t seem in the least bit “bizarre and peculiar,” especially from someone with the maturity of a college student. And for the record, despite all of this, the guy was expelled.

    In another case a woman claimed she was raped months later after her ex-boyfriend whom she was getting back together with expressed outrage that she slept with someone else. In addition, her mother was outraged that she had sex at all. You might say, well, that’s good evidence to overcome the de facto presumption of guilt the writer is promoting. The only problem is the school didn’t allow any of that evidence to come in, and, of course, he was expelled.

    Furthermore, the atmosphere on college campuses at present celebrates the woman who claims she was raped providing her with huge amounts of attention support and sympathy. For a woman who was raped that’s as it should be, but for a woman who is feeling bad about herself and her choices, accessing that response may be a very powerful temptation, even to the point of revising in her own mind what actually happened.

    The professor’s perspective is totally dated at least on college campuses. For good reasons the stigma of being raped has been replaced with powerful forms of support and sympathy. But that also takes away the disincentive, replacing it with what for some are powerful incentives, to lie about rape that her argument relies on.

  9. Mark Huffman says:

    I am totally on board with the idea that “yes means yes” is just good, respectful practice and something that should be promoted especially with young people.

    But it is really hard to be kind in the face of Prof. Colb’s statements of how this should play out in a campus sexual assault hearing. She disputes the contention that “yes means yes” shifts the burden of proof from the accuser to the accused. She states that if the burden is on the accuser, she has to prove it and if the factfinder thinks there is a 50% chance he did get consent and a 50% chance he did not get consent then the factfinder will find for the accused.

    But then she says that the accuser has to provide evidence, but (and this is beyond belief) if all she does is say “no I did not give him consent” and all he can say is he didn’t, (he said/she said) Colb instructs the factfinder to give greater weight to the accuser’s statement on the frightfully simplistic ground that she has no structural reason to lie and he does. I think any sane person would call this a “presumption of guilt,” or more accurately, the “Colb Presumption of Guilt” (CPG).

    No worries though, all he (the accused) has to do is come up with some evidence of why she would lie. That women lie in this context is very atypical I have no doubt, but nevertheless something Prof. Colb can’t deny does in fact happen since, though despite being a very percentage of cases nevertheless constitutes a non-negligibly high number, as is demonstrated by the fact that there are so many proven instances of it (Duke lacrosse case, UVA Rolling Stone article case, North Dakota case where accuser was indicted for lying to the police about the event which wasn’t initially enough for the school to even bother considering an appeal to his expulsion).

    But when someone lies there often isn’t any evidence of it. She may be, and likely is, the only person who knows she is lying and may actually be in denial about it. This is not to tap into some archaic sexist assumption that women always lie, it’s to acknowledge that women do in fact sometimes lie, because PEOPLE sometimes lie, especially when shame is involved and often for reasons, though reprehensible, are kind of understandable especially in a young person.

    For example, she got drunk and did something she’s terribly ashamed of and has an almost existential need to deny it happened. Maybe she cheated on a boyfriend who is outraged and threatening her (Dartmouth College case), or her mother is outraged at her actions (same case), or she’s cheating with her roommate’s boyfriend (recent Amherst College case), or her sexual activity is resulting in social ostracization (same case), or they were both too drunk to remember but she can’t imagine saying yes (recent Washington & Lee case). Or maybe she consented and lost her virginity, is now heartbroken about it and is in panic mode.

    Well, those are all good bits of evidence to possibly overcome the CPG, right? In each of those cases the accused wasn’t allowed to bring in any of that evidence. It all came out after the college expelled him and he hired attorneys to do a proper investigation. He had no chance to prove she was lying because he didn’t have access to the evidence, because the school didn’t allow it.

    And what if the accuser can’t even articulate why she’s lying, her emotions and cross-currents of shame are so great she has never discussed it with anyone — so there is no evidence?

    Under the CPG he’s done for, because Colb’s not in the least bit concerned about presuming that a woman never has reason to lie about consent. I agree, she almost never does. ALMOST. But sometimes she does and in most cases there really isn’t any other evidence than “he said/ she said.” That’s almost always the case, at least that’s all the campus tribunal sees since it denies the accused the ability to find evidence that she is lying, if in fact she is.

    It is amazing that someone like Prof. Colb who is such an advocate for the rights of the accused in the criminal setting is so utterly indifferent to wrongful convictions in this setting where the consequences aren’t as dire, but nevertheless truly devastating. That her feminism and her politics are so righteous that she can abandon all that and say in essence, “yes, the CPG will result in some number of false convictions, but it’s worth it.”

  10. PC aMuck says:

    You contradict yourself 3 times in this article. It was a valiant effort but this law makes no sense. Legal consultants can’t even explain it, how are 16 yr Olds supposed to understand it? I know the ones I teach say it is confusing, stupid and can’t be practically done.