This is an opinion piece published in the Statesman.
BY SCOTT LONGAKER | Guest Columnist | The Statesman
The Unites States Constitution is a document most citizens hold dear and the Fifth Amendment in particular contains what is known as the “Due Process Clause.”
“No person shall…be deprived of life, liberty, or property, without due process of law….”
While the Constitution is in place to limit the power of the federal government and does not explicitly bind the university from enacting its own rules and regulations regarding conduct, violating it does have serious implications for society as a whole. The university’s recent adoption of an affirmative consent sexual assault policy does just that by shifting the burden of proof onto the accused. Both of these actions severely undermine the foundation of law this nation was founded on.
The University of Minnesota system’s Policy Library defines sexual assault as “actual, attempted or threatened sexual contact with another person without that person’s affirmative consent.”
Affirmative consent is defined as “informed, freely and affirmatively communicated willingness to participate in sexual activity that is expressed by clear and unambiguous words or actions.”
The language of the policy establishes a position for the complainant that cannot be refuted.
How can the accused, that is one who has not yet been found to be guilty of any wrongdoings, prove that they received consent from someone who claims not to have given it?
Last year the Washington State Supreme Court ruled that shifting of the burden of proof violated the “Due Process Clause” and was therefore unconstitutional. While a university in Minnesota is not bound by the court rulings in Washington, ignoring it and enacting similar policies sets a standard of practice that undermines the American concept of justice.
Imagine this scenario: two students go on a couple dates. On the third date, as they are saying goodnight, one student leans in as if to kiss the other. No explicit verbal consent was given and the initiator awkwardly fails at landing the kiss. If they felt threatened by the action of trying to be kissed they would be able to file a complaint of sexual assault.
While an encounter such as this does not fit into what is commonly thought of as sexual assault, under affirmative consent it could be. In addition, under the same policy, the initiator of the kiss would be guilty.
There is no mistake that sexual assault, on campus and off, is a real problem.
A problem where the perpetrators of such crimes often are never prosecuted or reported even though laws and conduct codes already make rape and sexual assault illegal, as well as laws and codes addressing the inability to give consent due to incapacitation.
Proponents of affirmative consent policies suggest that they are necessary to combat this problem. Ezra Klein, editor-in-chief of Vox.com and a supporter, readily admits that it will brand some innocent people as rapists but that, “Men need to feel the cold spike of fear when they begin a sexual encounter.”
This despite findings by forensic expert David Lisak of Boston College in a 2002 study, Repeat Rape and Multiple Offending Among Undetected Rapists, that over 90 percent of campus rapes are committed by three percent of students.
So because of the heinous crimes of a few, innocent people may be labeled (in some instances for life) as sexual offenders. How does criminalizing the sexual behavior of everyone stop the evil behavior of the predator who will no doubt still try to find a way to harm others? As mentioned, many times these crimes go unprosecuted and often are not even reported. How does labeling more people as offenders stop the crimes already being committed? Does expelling the student who tried to kiss their date prevent future assaults? Does it bring justice to the victims who stand silent?
We have seen what mass criminalization has done to stop drug abuse under the guise of the War on Drugs. While we incarcerate a larger portion of our population than any other nation, illicit drug use has reached what has been called epidemic levels. Has such policy stopped drug abuse or its associated crimes? Obviously not. Why would the same type of mass criminalization stop sexual assault?
In the interest of justice, perhaps we should focus on the crimes already being committed instead of creating new ones. We should be addressing why victims are reluctant to report such crimes (could it be the abysmal conviction rate of real rapists?) and why we feel violent behavior (sexual assault) can be countered with more violent behavior (putting people in cages). This is a formula that has failed repeatedly, yet we still expect different results.
Creating a culture of fear and shame surrounding our sexual lives does nothing to stop the grotesque actions of the sexual predator, nor does expelling the awkward freshman. What it does accomplish is a violation of our basic rights and moves our society further away from the ideals of equality under the law.