I am at a loss to understand how people who otherwise would at the forefront of the battle to extend due process rights to persons accused of wrongdoing are, instead, at the forefront of efforts to roll back, in significant ways, the due process rights of persons accused of sexual wrongdoing on campus.
Sarah C. Stein Lubrano, Harvard anticipated class of ’13, has written a piece that is an affront to the community of the wrongly accused because she advocates that her college change its rules in a way that will make it easier to punish the innocent for offenses they didn't commit. Lubrano urges students to vote to adopt a standard of “affirmative consent,” which she says redefines consent in sexual encounters to mean "saying yes to the sex with words or clearly enthusiastic actions.”
"This is necessary not to harshly punish people caught in seemingly ambiguous situations," Lubrano writes, "but rather to prevent these situations from being as ambiguous in the first place."
But harshly punish people caught in ambiguous situations it would do, and that's the problem. "Clearly enthusiastic" consent is unworkable as either a legal standard or an official university policy. It is critical to note that if this standard becomes law on campus, it would punish students with expulsion even where actual consent is present if it is not sufficiently "clearly enthusiastic." This would require campus disciplinary boards to sometimes expel young men for having sex even if it finds that consent was present.
Let's make this clear: COTWA supports any efforts to instruct college students to be certain their partner clearly consents to any sexual encounter. But that's far different than saying colleges should legislate, on threat of expulsion, that consent be "clearly enthusiastic."
Who, on earth, will decide if consent was "clearly enthusiastic" anyway? Men and women do not carry "enthusiasm" meters into the bedroom. How can a disciplinary board tell the difference between ordinary consent and consent that is "clearly enthusiastic"? There is no mistaking midnight for noon, but at what point does twilight become night? It's a line as indistinct as a dense New England fog. From a legal perspective, consent is like pregnancy: women aren't just a little pregnant, and likewise, there either was consent or there wasn't.
Our criminal law is not a guessing game, and campus rules shouldn't be, either. A valid criminal statute puts the public on clear notice as to the conduct that is forbidden. “A penal statute, . . . to be valid, must be sufficiently definite to show what acts the legislature intended to punish.” William Lawrence Clark et al, A Treatise on the Law of Crimes at 59 (1996). This is a component of due process. “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223 (1951). A law that does not meet that standard is unconstitutionally vague.
College sex policies should not be free-floating standards of purported wrongdoing that punish wrongdoing “in the air.” Fundamental notions of fairness dictate that college rules of conduct be sufficiently definite to warn the accused when he’s in violation of them. This rule would not do that. To punish young men (the target of this rule change), for not conforming to an artificial and politicized construct that would be impossible to fairly gauge borders on the barbaric.
Lubrano's unfortunate column is here: http://www.thecrimson.com/column/exodoxa/article/2012/11/14/harvard-referendum-policy/