Affirmative Consent and Burden Shifting

Tamara Rice Lave has a thoughtful post at Prawfsblawg about affirmative consent standards in sexual assault cases. She contends that application of such standards amount to a burden shift to the defendant. From her post:

The case I am referring to is Mock v University of Tennessee at Chattanooga, and it was decided on August 4. Corey Mock was alleged to have had non-consensual sex with a female student. At the hearing, the Administrative Law Judge found that UTC had not carried its burden of proof and dismissed the charges. The complainant then spoke with the Chancellor, who petitioned for reconsideration. Although the ALJ did not change any findings of fact, she changed her overall conclusion. Mock appealed to the Chancellor who upheld the order and expelled Mock. Mock then appealed to the Chancery Court.

In her opinion, Chancellor Carol L. McCoy wrote, “Under the ALJ’s Revised Initial Order, a person accused of violating SOC7 must overcome the presumption inherent in the charge that the violation has been established. Mere denial of the accusation is insufficient. The accused must prove the converse of what is taken as true and credible, i.e., the complainant’s statement that no consent was given. He must come forward with poof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to any activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

After finding that 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,” Chancellor McCoy reinstated the original order of the ALJ and reversed the decision of the UTC Chancellor.

I applaud Chancellor McCoy’s decision and hope that other judges will also see the problem with affirmative consent.

Although have my (policy) doubts about affirmative consent standards, I’m not persuaded by the argument that affirmative consent standards switch the burden of proof to the defendant.

Consider this scenario:

Diane knows her friend Victor has a lot of money in his pocket. Rather than ask him for money or threaten him with violence, Diane tries her hand at pickpocketing. She successfully removes the money but is arrested by a police officer watching nearby. At trial, Diane contends that she did not commit theft because Victor never specifically said she couldn’t have the money. 

Diane loses because theft has an implicit affirmative consent standard. We do not start with the presumption that everyone is willing to share their valuable items until told otherwise. 

Do we really say the burden is on the defendant in such cases? No.

So what’s the difference between theft and rape (which some analogize to sex theft)? I think there are two possible distinctions of import relevant to this discussion.

First, the social norms in theft and rape cases differ as to the default presumption. Americans will tend to believe that when property ends up in someone else’s hand (without documentation or contract), theft is the likely outcome. Muggers are not ordinarily able to succeed by arguing that the $100 they stole was really just charity. In rape cases, the social norm is more toward consensual interaction. In non-stranger encounters, jurors, judges, and other observers often err toward believing that sex was consensual absent clear evidence of non-consent (reinforcing the negative consent standard used in criminal law).

Second, the mens rea analysis in theft and rape cases can be quite different. Judges and juries often conflate the act and mens rea requirements for non-consent in rape cases whereas analysis is clearly separate in theft cases. Returning to my hypothetical, Diane can argue that she mistakenly believed that Victor intended to give her the money. With the facts as I described, such a claim is unlikely to win. However, with minor variations (i.e., Victor left the money on a common room table after Diane had mentioned needing money), such a mistake fits neatly into the mens rea analysis at trial.

In rape cases, however, a lot of courts (trial and appellate) fail to separate non-consent into act requirements and mens rea components. The result is that a defendant’s mistake as to non-consent is shoe-horned into an act requirement analysis (or jury instruction) or the crime essentially becomes strict liability. This problem is particularly bad in the few jurisdictions that contend that defendants do not get to argue they were mistaken as to consent (while still allowing the same arguments as part of the act analysis).

This is where I think the larger point of Rice Lave’s post is right in many cases. If anything is shifting the burden in the case she talks about, it isn’t the affirmative consent standard. Instead, it is the conflation of act requirements and mens rea (which is likely to happen in administrative hearings). Consider this scenario:

Dave verbally pressures Victoria into sex. Victoria expresses reluctance, but never explicitly says “no.” She does not ever give explicit affirmative consent, but Dave believes she did based upon body language and non-verbal cues. Dave penetrates Victoria. After a minute or so, Victoria stops Dave, runs out, and reports being sexually assaulted.

Under the newer campus rules, Dave is charged with sexual assault. The administrative prosecutor must show by a preponderance of evidence that the sex was non-consensual. Victoria testifies that she expressed reluctance and never gave affirmative consent. She also says that she never gave any non-verbal signal of consent. If Dave does not testify and the tribunal deems Victoria credible, then the burden is met by the prosecutor. Dave’s representative/lawyer, however, can still argue, without contradicting Victoria’s testimony, that Dave interpreted the situation differently. The administrative prosecutor still must show by a preponderance of evidence that Dave had the requisite mens rea for committing sexual assault.

If that last step doesn’t occur, which it often doesn’t in current ad hoc proceedings, then a reasonable argument can be made that the burden has shifted. That’s because the alleged wrongdoing has essentially become strict liability. This is similar in effect to the revival of strict liability in criminal law generally. If the defense says that the defendant didn’t mean to discharge a gun, that would be relevant evidence to murder on or off campus in any tribunal even though the act requirement was clearly met (causing the death of another). Both in criminal law and administrative campus proceedings, sexual assault cases need to operate clearly using that very basic principle of criminal law.

Whether any of these scenarios yield good or bad outcomes is a separate question. But on the specific claim that affirmative consent standards shift the burden to the defense, I disagree. I think affirmative consent is implicit rule throughout criminal law. It’s just that the mens rea analysis in many rape/sexual assault cases makes it appear the act requirement consent standard is doing the “work.”

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2 Responses

  1. Brad says:

    Why do you treat strict liability crimes and burden shifting the same thing? If there’s no mens rea element at all, then where is the burden on the defendant. (Perhaps the defendant would prefer to have the burden to negate the mens rea than to not have mens rea considered at all, but that doesn’t mean they are one in the same.)

    • Corey Yung says:

      Hi Brad,

      I agree with you strongly regarding rape cases (which is why I merely said “a reasonable argument can be made”). In other scenarios, however, I think the argument that the burden has shifted with strict liability is potentially more persuasive.

      Consider a constructive possession case where a defendant has wild marijuana growing in their backyard (but the defendant doesn’t know it). Constructive possession merely requires the government to show dominion and control. If that crime requires, “knowing” possession, it must offer evidence of the defendant’s knowledge. If “negligently,” it can offer evidence that a reasonable person would have known. However, if it is strict liability, the government need show nothing. Because constructive possession already puts the defendant in bad shape, some people would describe the application of strict liability as a burden shift.

      I agree with you that burdens are categorically something different but at least see the other view on this in some cases.