What ‘Yes Means Yes’ Means for Colleges’ Sex-Assault Investigations

When “no means no” shifts to “yes means yes,” is a student who can’t produce proof of consent certain to be found responsible for sexual misconduct?

Some opponents of so-called affirmative-consent policies, which are mandatory in California and New York and popular on a growing number of campuses elsewhere, say yes. They argue that such policies, designed to ensure that both students are willing participants and that silence isn’t interpreted as consent, put an unreasonable burden on an accused student. Judges in a handful of cases have agreed.

But on campuses where investigators are applying the new standards, officials insist that students who are accused of assault are still getting a fair shake. The questions investigators ask may have changed and the expectations for communication may have heightened, but no one goes in to those hearings presuming, as some judges have concluded, that accused students are guilty.

“The idea that this somehow shifts the burden onto the accused student is a misconception,” says Kimberly D. Hewitt, director of the Office of Equal Opportunity and Affirmative Action at the University of Minnesota, where a revised sexual-assault policy took effect over the summer.

“The burden remains on the institution to weigh the evidence after hearing both sides,” she said, considering the credibility of both students, and determining whether it was “more likely than not” that an assault had occurred. That standard, known as “preponderance of the evidence,” is lower than the “beyond a reasonable doubt” standard used in most criminal cases and is the one that the federal government has directed colleges to use in handling sexual-violence complaints.

Investigators might examine the relationship between the students before and after the alleged assault, what they told their friends, messages texted back and forth. They also ask more-detailed questions of both students about body language and other nonverbal 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 Ms. Hewitt. The university’s new policy, which clearly states that silence or a lack of resistance doesn’t indicate consent, is primarily an education tool, she adds, “for students to think about before they’re in the moment.”

At Stanford University, an affirmative-consent standard simply changes the elements that have to be proved, says Michele Landis Dauber, a professor of law who helped design the university’s disciplinary process for sexual-misconduct cases.

Instead of having to prove that she resisted, or said no, the accuser has to persuade investigators that she did not give consent, or that she withdrew it at some point. The accused would then have the opportunity to explain how he concluded, through words, body language, or other clues, that she was, in fact, a willing participant. The burden of proving that she did not consent stays on the accuser throughout the proceeding, Ms. Dauber says.

(Since most cases that come before campus judicial boards involve male students accused of violating female students, those pronouns are used here, but the policies apply equally to same-sex or male-victim complaints.)

Questions of Proof

Critics question whether it’s reasonable to expect a student to come up with proof of consent in an encounter with no witnesses that may boil down to a “he said, she said” debate.

“How do you document it?” asks Samuel R. Staley, a research fellow at the Independent Institute, a libertarian think tank in Oakland, Calif., and the managing director of an interdisciplinary research center at Florida State University. “Are we going to sign a slip of paper at every step along the way saying, ‘I give you permission to kiss me or hold my hand’?”

A state judge who last month ordered the reinstatement of a student who was expelled from the University of Tennessee at Chattanooga went further.

“Affirmative consent effectively shifts the burden of proof to the accused, making him or her guilty until proven innocent,” wrote the judge, Carol L. McCoy of the chancery court in Nashville. She ruled in a case involving Corey Mock, a senior whom the university had found responsible for sexual misconduct because he was unable to prove that he had obtained consent from a woman who said she was too drunk at the time to remember clearly what had happened.

“The question,” the judge added, “is no longer whether or not someone actually consented to a sexual act; it’s whether the accused can prove that they received such consent — and short of a videotape of the entire encounter, that proof is unlikely to exist.”

But long before affirmative-consent policies were in place, panels of faculty members and students were investigating and adjudicating alleged acquaintance rapes that occur with no witnesses and often boil down to one student’s word against another’s.

Ms. Dauber, of Stanford, describes how a case could play out under an affirmative-consent standard.

“After the accuser states that she did not affirmatively consent, the accused can offer his side. But instead of saying, ‘She never said no,’ he might say, ‘She did these things,’ like taking off her shirt or moaning, which he believed meant she was consenting.”

Investigators might ask the accuser if she did those things. Other witnesses could be asked for information, emails, and text messages between the parties.

Ms. Dauber says she’s not surprised by the backlash against yes-means-yes policies by those who already feel the deck is stacked against men.

“There’s a certain group of people who believe that women lie about rape and that this is going to open the floodgate to a deluge of false accusations,” she says. Instead of making it harder for people to defend themselves, “affirmative consent creates a clear default rule about what their responsibilities are and tells them ahead of time what is expected of them.”

Pressure on Universities

Around the country, sexual-misconduct policies are being updated and tweaked as pressure, both from the federal government and from activists, intensifies.

The University of Tennessee at Chattanooga’s policy, a revised version of which took effect after the Mock ruling, urges students “to err on the side of caution” when they aren’t sure how to interpret nonverbal actions. While the earlier policy required someone to be able to point to signs of consent that are “unmistakable in their meaning,” the new one says those signs can be evaluated “from the perspective of what a reasonable person who perceived the individual’s words and/or nonverbal actions would have understood.”

The main emphasis of the change “is to clarify what affirmative consent means, to fully explain that it’s the responsibility of anyone initiating contact to get consent and to determine reasonably whether a person can give consent,” says Chuck Cantrell, a spokesman for the university.

Brett A. Sokolow, president of the Ncherm Group, a consulting and law firm that advises colleges, published a blog post about the Chattanooga case in which he questioned whether the ruling really constituted a strike against affirmative-consent policies.

“The court may have assumed that a ‘Yes Means Yes’ policy on consent automatically shifts the legal burden” to accused students, he wrote. That belief “is an erroneous assumption, but one that many foes of affirmative-consent policies want you to believe is inherent in such policies.” The burden, he wrote, is on the university to prove that a sexual assault occurred, and college administrators need to do a better job of articulating that when documenting their decisions.

Amy Zavadil, the Title IX coordinator at Barnard College, says it’s important to remember that campus investigators are deciding whether a policy has been violated, not whether a law has been broken, and the evidence they’re looking for is different.

“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,” she says. “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.”

Colby Bruno, senior legal counsel at the Victim Rights Law Center, in Boston, says investigators are asking more-detailed questions about the level of intoxication. Yes-means-yes policies often spell out specific things to look for, like slurred speech or difficulty walking, that indicate a person may be incapable of giving consent.

“It used to be that the accuser would give a statement and the accused could read it and say, ‘That’s not the way it happened,’” Ms. Bruno says. Now investigators “are more likely to get both of their stories independently and decide which one is more plausible.”

Ultimately, she says, that approach is more likely to result in a resolution that’s fair for everyone involved.

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.