As more schools implement affirmative consent sexual assault policies, opponents—and some judges—say the policies shift blame to defendants, Katherine Mangan reports for the Chronicle of Higher Education.
When investigating such cases, schools may look at students' relationships before the alleged assault, following the assault, what was confided to friends, and communications such as emails, texts, and other messages. The investigators also may ask for detailed questions about body language and other non-verbal cues.
"What we were finding in the investigation process was that students were telling us they went ahead with the sexual activity because the other student was silent," says Kimberly Hewitt, director of the Office of Equal Opportunity and Affirmative Action at the University of Minnesota.
When Stanford University implemented their affirmative-consent standard it changed what had to be proven—not who had to prove it, says Michele Landis, a law professor who helped create the disciplinary process.
The accuser now has to prove he or she did not give consent instead of that he or she said "no" or resisted.
"If someone says the other person didn't say no, then I would ask him to talk to me about what made him feel he had consent," says Amy Zavadil, the Title IX coordinator at Barnard College. "If he says, 'She turned away, but I put my arm around her and pulled her in and she didn’t pull away,' that's not consent."
Pressure from both activists and the federal government have led some schools to clarify language in their policies. At the University of Tennessee at Chattanooga, the policy was changed from needed signs of consent "unmistakable in their meaning" to "from the perspective of what a reasonable person who perceived the individual's words and/or nonverbal actions would have understood."
Their change followed the ruling of state judge that the university made an "arbitrary and capricious" decision when it found a male student guilty of sexual assault and expelled him (Mangan, Chronicle of Higher Education, 9/3).
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