Response to the FIRE letter to OCR re affirmative consent

December 2, 2015

Catherine Lhamon
Assistant Secretary for Civil Rights Office for Civil Rights
United States Department of Education
400 Maryland Avenue, SW
Washington, DC 20202

Dear Assistant Secretary Lhamon:

We have reviewed a copy of a letter directed to your office by “FIRE” (the Foundation for Individual Rights in Education) dated November 24, 2015 and signed by Susan Kruth regarding OCR’s enforcement of “affirmative consent” standards by colleges and universities subject to Title IX. We hope this letter can assist you in responding to the FIRE letter.

FIRE’s due process concerns are misplaced and based on a highly flawed analysis. We respectfully urge OCR to completely reject FIRE’s letter, its analysis, and its conclusions.

Affirmative consent is a cultural issue that is not well understood. Consent cannot be viewed as an entitlement that accompanies a relationship. OCR could help the cultural change process along by encouraging a better focus on sexual encounters as a licensure relationship — where violations are the result of the failure to obtain or maintain the grant of a license. Consent is the granting of a license. That license can be limited by the granting party and can be withdrawn at any time. Clear articulation of that standard would go a long way to addressing the cultural concerns that FIRE has identified but mislabeled.

FIRE bases its arguments on a false claim and an incorrect analysis.

FIRE falsely equates Title IX proceedings with criminal proceedings and then asserts that the accused is being unfairly asked to prove his/her innocence. Affirmative consent proceedings, used by colleges and universities to comply with Title IX, are not criminal in nature but civil. The relevant burden of proof standard is not which party (assuming two parties — an accused and a complainant) stands accused but rather which party is claiming that licensure for sexual activity was granted by the other party and remained in effect at the moment of the encounter (which may be defined as touch by touch). When a sexual encounter is viewed as the mutual granting of licensure, then it is incumbent upon each party to affirmatively assure that such licensure was indeed granted and remains in effect. The burden of proof falls on the party claiming the receipt and then current effectiveness of license from the other. Affirmative consent is merely a restatement of the normal burdens of proof that licensure entails.

The relevant burden of proof standard is not which party stands accused but rather which party is claiming that licensure for sexual activity was granted by the other party and remained in effect at the moment of the encounter.

FIRE is, in essence, basing its arguments on the false assertion that sexual touching is presumptively a privilege of the actor doing the touching. This is wrong as a matter of traditional tort law, where every person has a right to be free from intentional contact or apprehension of contact where the contact is “offensive.” The receipt of consent is considered an affirmative defense. Examples given in the American Law Institute’s 1965 Restatement (Second) of Torts include the examination by a doctor of an unconscious patient without prior express consent or kissing a person while asleep. It cannot be seriously contended that the “hook up” society has made such contact no longer “offensive.” The presumption of non-offensiveness or of consent as an entitlement, held by the actor doing the touching, is based on a notion that certain objects of contact were “chattel” of that actor: traditionally, the owner of the slave or the husband of the wife.

FIRE is implicitly arguing that in college age sexual encounters chattel concepts apply. Under the chattel theory, the owner of the chattel (the party possessing privilege) is entitled to the “use” of that chattel — usage that would include sexual relations. Only if the usage was in violation of societally established norms would a violation ensue. Under this view the burden of proof falls on the complainant to establish that either the chattel relationship had been terminated or that societal norms regarding the “rights” of the complainant had been violated. The idea of a chattel relationship is ingrained in the anecdotal saying of “no means yes” and is embodied in the idea that consent given at the beginning of an encounter creates “entitlements” throughout the encounter and perhaps thereafter. FIRE’s view is reminiscent of the now outdated notions that until the past decade or so governed the concept of “marital rape.”

But, FIRE is grossly mistaken. Sexual encounters on college campuses do not happen within the bounds of any recognized chattel relationship. Neither complainant nor accused is sitting in a position of privilege with regard to the other — especially privilege that presumes access to the other’s body as a matter of entitlement. The correct description of the relationship between the two parties is that of licensure, not chattel.

The Violation of student codes of conduct is not criminal; it is civil.

FIRE equates violations of student codes of conduct with crime. This is blatantly false. Violations of student codes of conduct are contractual violations and are covered by civil law. If the violation in question is also a criminal violation that is a matter for the appropriate criminal authorities. Admittedly, the fact that most campus police departments are charged with enforcing both civil standards and criminal law can give rise to some confusion as to the appropriate jurisdiction for any given occurrence, but that confusion does not translate into FIRE’s conflation of the two standards.

Students attend school by virtue of a contract (whether explicit or implied). That contract includes a set of rules regarding behavior. Violations of that contract can result in sanctions — which may include expulsion. Title IX requires that schools take necessary steps so as to address any unwanted and unwelcome sexual behavior that would significantly interfere with a student’s access to educational opportunities. All of the aforesaid is civil in nature and, as such, civil standards regarding preponderance of evidence and burdens of proof are appropriate.

What is not appropriate is behavior that has been anecdotally reported: schools that deny students access to legal representation, which fail to inform students of their fifth amendment rights regarding self-incrimination whenever there may be an overlap between the alleged violation of a student code of conduct and criminal law, and schools that have demanded that students waive their fifth amendment rights upon threatened penalty of expulsion. If FIRE had addressed these issues, we might have found room for agreement with them. They did not. But, it is these issues that actually raise the “lack of due process” concerns, which FIRE purports to raise.

FIRE falsely claims that “the affirmative consent standard fails to give students notice of what is required of them.” If sexual encounters are understood as based upon licensure and not chattel, then the notice is obvious and ever present: One needs to actually obtain a license in order to use it and one needs to engage in whatever efforts are necessary so as to keep the grant of licensure effective and in force. Students fully understand this when it comes to driving, and to making use of the university Internet system, and to accessing the resources of the gym and the library. What may be (or in our opinion is) lacking are the educational efforts and resource that give rise to an appropriate understanding of the sexual licensure relationship — but that lack is a cultural one not a lack of appropriate notice.

FIRE falsely claims that “demonstrable expressions of consent for any sexual act performed” must be available for proof. If every sexual encounter was the result of a temporary chattel relationship, then the FIRE claim would be true. But, no sexual encounter falls into that category. The licensure requirement demands that the license be in effect at the time it is used. The party making use of the license needs to act on a reasonable basis regarding the licensure grant mindful that consent — the license — can be withdrawn at any time. The degree of retrospective demonstrability that any two parties wish to engage in upon the exercise of a license is always an issue when licensing disputes emerge. The solution here is again cultural. OCR should (in our opinion) be actively encouraging schools to do a better job of educating students that sexual encounters in the affirmative consent era are licensure based. The better that basis is understood, the clearer affirmative consent and its Title IX implications will be for both students and schools.

FIRE falsely claims that there is no reasonable means for students to provide retrospectively demonstrable evidence of consent. As the producers of the We-Consent™ App Suite for smartphones (see our website at http://protectequalsrespect.com), we vigorously disagree. Our apps are designed for just that purpose. More importantly, however, the app suite is designed to evoke the very “before the encounter” discussions that licensure and the affirmative consent standard require. I have enclosed a briefing packet regarding the app suite with this letter and it is available online at http://isce.edu/WEC-Briefing.

The only case in which FIRE has a point is implicit in their letter rather than explicit. It is not the role of school Title IX panels to be “adjudicating sexual assault allegations.” The role of the panel (as we read the law) is to ensure that if the substance of an allegation is held to be correct then appropriate actions and safeguards are put into place to prevent significant interference with a student’s access to educational opportunities. That can mean the imposition of the equivalent of a restraining order separating the parties involved. It can mean the temporary or permanent expulsion of one or both parties. It could mean the imposition of lesser remedies for the parties involved.

We believe that the Title IX affirmative consent process should mean that the implementation of campus-wide measures to ensure that offending sexual behavior does not get repeated. Regrettably, this is apparently not happening. As we discuss below, the idea that only one party is responsible in an unwanted encounter is most relevant to claims of chattel and to claims of licensure never granted — it is inappropriate when the question at issue is withdrawal of consent or license not applicable to a given sexual activity. Such cases involve mutual responsibility and call for community lessons about communication, not individual lessons about privilege, power, and “noblesse oblige.”

It seems that the vast majority of college Title IX panels are not authorized to investigate, encourage, and report on systemic interventions that could help. Instead they are reduced to investigating individual allegations of violations — as if the issues regarding sexual consent were not a direct by-product of the school’s cultural environment. Schools are not doing enough to educate students that sexual encounters are licensure. We believe and respectfully suggest that OCR needs to become much more active in assisting schools to deal with this broad cultural issue. I have enclosed a copy of our press release of December 1 on this very topic.

I am available to discuss all of the above with you or your staff.

With respect,

Michael R. Lissack
Executive Director and ISCE Professor of Meaning
Enclosures: We-Consent™ briefing packet and Press release of December 1

Full copies of this letter, FIRE’s letter, and the attachments are at http://weconsentlive.com/FIRE