Due Process Beats "Yes Means Yes" In Court
The expulsion of UTenn student and star wrestler Corey Mock was overturned in court after a judge ruled against the disgusting absurdity that is the "Yes Means Yes" thinking and procedure (not adopted by UTenn, but inferred by an administrator there). Robby Soave writes at reason:
The decision is a significant blow to the concept of affirmative consent. According to Judge Carol McCoy, UT's consent standard wrongfully shifted the burden of proof and violated Mock's due process rights....The campus judicial process initially cleared Mock, but UT Chancellor Steven Angle took an interest in the case after meeting with Morris. Angle asked the campus adjudicators to re-hear the case. This time, Mock was found guilty.
The rationale was atrocious. As KC Johnson of Minding the Campus explains:
Angle, for his part, argued that Mock had failed to prove that he had obtained affirmative consent--that is, that Mock, not UTC, had the burden of proof in the initial hearing. UTC hadn't adopted a "yes means yes" policy, but Angle inferred it through various provisions in the school's code, and in other writings.UT's decision was a powerful confirmation of due process advocates' worst fears about affirmative consent policies. I have long-argued that the "Yes Means Yes," when judged by university officials, in tandem with a preponderance of the evidence standard, creates a de facto assumption that an accused student is guilty unless he can prove otherwise--turning innocent until proven guilty on its head.
From Judge Carol McCoy's ruling:
The UTC Chancellor improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris.
There's also this:
He made no finding that Ms. Morris did not consent, intertwined the definition in SOC 7 of sexual assault and sexual misconduct, and made no distinction as to which acts had occurred.
We have a standard in this country, "innocent until proven guilty," and yes, there must be sufficient proof of a person's guilt to cage them and otherwise punish them.
This standard -- very importantly and correctly -- allows a potentially guilty person to go free in favor of not sweeping up and convicting innocent people.
Related: Ashe Schow in the WashEx on how "Yes Means Yes" policies are starting to fall apart and the terrible unfairness of these policies:
To be fair, there is nothing in yes-means-yes -- sometimes known as affirmative consent -- policies that require schools to shift the burden of proof onto accused students. But in practice, that's what happens, just as it did at UTC. As McCoy pointed out, accused students "must overcome the presumption inherent in the charge that the violation has been established." Simply denying the allegation is seen as "insufficient." The accused then becomes responsible for proving "the converse of what is taken as true and credible, i.e., the complainant's statement that no consent was given."And he -- it is almost always a he -- must do so without witnesses or video of the event. That's a high bar for an accused student, who is often blindsided by the accusation weeks, months or even years after the encounter happened.
Yes-means-yes policies require both parties to obtain consent from each other in order to engage in sexual activity. But in practice, the accusing student is absolved from obtaining consent once the accusation is made, which retroactively puts the onus on the accused to have obtained consent. Sometimes these policies require the initiator of the sexual activity to be the one who must obtain consent. But again, the accuser is absolved of such responsibility once an accusation is made.
Colleges adopting "Yes Means Yes" policies have no business doing so. We have a justice system to handle sexual assault cases. These are crimes -- or, rather, crimes someone has been accused of. A student's fate -- and almost always a male student's, by the way -- does not belong in the hands of an "inferring" administrator.
There's a way to stop these policies and it is for students whose lives have been ruined by them to sue in civil court and show colleges that injustice...is expensive.
Maybe these young men should stop protesting innocence and start claiming the girl raped them. They can say they were too ashamed to come forward because of the brutality. Turn about is fair play. Then, if these college administrators are consistent, the young women would have to prove she did not rape him and she would be found guilty of rape.
steve in tulsa at August 14, 2015 6:15 AM
Of course there is no guarantee that they will not be consistent. The intent, by the postmodern feminists who push these policies, is to not be consistent.
FYI: There is a state-politics backstory that plays into this. UTC, which isn't spelled out in the excerpt, is the University of Tennessee-Chattanooga. UT's main campus is in Knoxville. UTC tries to be an independent entity; it went so far for a while as to change its name to just the University of Chattanooga. Now the UT system is trying to re-assert its control. Steven Angle was Knoxville's choice to be the UTC chancellor, and my understanding is that it was not a very popular decision in Chattanooga.
Cousin Dave at August 14, 2015 6:37 AM
"And where does he go to get his reputation back?"
mer at August 14, 2015 7:42 AM
And he -- it is almost always a he -- must do so without witnesses or video of the event.
Indeed. And even if such were available, he has no power to compel either to be entered into evidence. Consider the kid at Amherst College who not only was expelled for alleged assault but was the one who was assaulted.
You know who had the accusers text messages? Amherst. It contains exculpatory evidence for the accused. Who didn't enter said evidence into the record?
Amherst. Sue them under Title IX, for encouraging an actual culture of rape.
Punch back twice as hard. Make them live by their own rules.
I R A Darth Aggie at August 14, 2015 8:45 AM
This decision is wonderful news for democrats hoping to exploit the mythical "war on women" next year.
dee nile at August 14, 2015 9:13 AM
It will end when administrators are personally liable for civil and criminal penalties. Until then, they are spending other people's money.
MarkD at August 14, 2015 9:54 AM
Here is one more atrocious aspect to the story you might have missed. The young man's father used to be the wrestling coach an UNC. He was fired for setting up a blog to defend his son. Just awful through and through.
Shtetl G at August 14, 2015 10:19 AM
"Maybe these young men should stop protesting innocence and start claiming the girl raped them."
Even in cases where it's clear the woman was the rapist, the man can be the one punished. http://reason.com/blog/2015/06/11/amherst-student-was-expelled-for-rape-bu
The cultural narrative around innocent, helpless women and predatory sis o strong for some people that this kind of travesty is bound to happen. A lot of men have their whole manhood, such as it is, invested in protecting women and they will gladly sacrifice any other man to their need to feel all he-man.
Jim at August 14, 2015 10:45 AM
"Maybe these young men should stop protesting innocence and start claiming the girl raped them."
They will just be called the rapist anyway. That happened at Amherst, where the woman was the actual rapist, by her own telling of the story, and even so the man was punished.
http://reason.com/blog/2015/06/11/amherst-student-was-expelled-for-rape-bu
Jim at August 14, 2015 10:47 AM
The real problem with "affirmative consent" is that asking for affirmative consent may constitute sexual harassment. Remember this quote in one of Amy's earlier posts?
"verbal advances that include whistling, shouting, and/or saying sexually explicit or implicit phrases or propositions that are unwanted by the survivor."
Damned if you do. Damned if you don't.
Next college males will be accused of discriminating against college women, because they won't have sex with college women.
Bill O Rights at August 14, 2015 11:38 AM
Next college males will be accused of discriminating against college women, because they won't have sex with college women.
They already can be. I posted a link on an earlier post I'll get it again once I'm off the road
lujlp at August 14, 2015 12:19 PM
The underlying principal of our legal system is the right to confront one's accuser and see the evidence assembled against one.
That way, we don't have secret tribunals, anonymous accusations, secret evidence, all the mechanisms by which tyrannical autocratic governments operate.
These discipline committees, seemingly approved by the universities' legal counsels, operate in open defiance of that bedrock principal.
Conan the Grammarian at August 14, 2015 1:14 PM
That's where I lost all respect for Anita Hill as a law professor when she wanted to anonymously accuse Clarence Thomas of harassment and not have to testify at the confirmation hearings.
Conan the Grammarian at August 14, 2015 1:15 PM
I recently attended an event in which a high-ranking official at a major university spoke about students accused of destruction of public property. Evidently there were video recordings of some of the mischief. The official said, "If we can identify them, we'll expel them - and worry about due process later."
DrPinWV at August 14, 2015 2:05 PM
You all might find this essay interesting
https://www.insidehighered.com/views/2015/08/07/how-sexual-assault-campaign-drove-one-student-affairs-administrator-her-job-essay
It's by a student affairs admin who has quit rather than enforce the OCR's recommendations on the handling of sexual assault accusations. The comments are interesting as well because many are coming from admins and academics who are acknowledging that the OCR has created a hugely unfair and unworkable situation.
Martin at August 14, 2015 5:43 PM
Here it is
http://www.examiner.com/article/university-of-michigan-says-that-withholding-sex-is-sexual-violence
So, have sex and its rape, dont have sex and its rape, look to long and its rape.
I wonder how long until breathing is rape
lujlp at August 15, 2015 11:38 AM
The best thing ever written or done about Sexual Harassment is the Tom Brady SNL skit, where Brady repeats the slightly creepy, uglier guy's bad pickup lines, and the Brady lines aren't Harassment, but the ugly guy's lines are.
spqr2008 at August 17, 2015 8:23 AM
https://screen.yahoo.com/sexual-harassment-000000677.html
lujlp at August 17, 2015 6:31 PM
The best thing ever written or done about Sexual Harassment is the Tom Brady SNL skit
_______________________________________
Not to me, it isn't.
I have to say, I have NEVER seen women I know put up with such crude behavior from glamorous men - I have a hunch that such shallow women simply get too much media attention, so people mistakenly think of them as the norm.
Not to mention that asking a co-worker on a SOCIAL date will pretty much always make the person being asked, male or female, gay or straight, feel AWKWARD, which is why it's always better to make it sound as though you just want to discuss WORK - over lunch. Preferably a pair of brown-bag lunches, since you never know when the other person simply doesn't approve of the expense of eating out, whether the other person is paying for his/her half or not.
lenona at August 21, 2015 8:12 AM
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