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When Sexual Conduct is Misinterpreted as Sexual Assault (or Vice Versa): Betsy DeVos Takes Back Fairness and Due Process

Posted by Steven Sherick | Sep 15, 2017 | 0 Comments

Fairness and due process of law may soon be coming back to school campuses across the nation. Under the Obama Administration, regardless if well-intentioned, the Title IX policies for sexual assaults that were put into place stripped constitutional rights from accused persons. Education Secretary Betsy DeVos aims to bring back fairness and due process for both the accuser and the accused.

On Thursday, September 7, 2017, DeVos gave a speech on the Title IX at George Mason University. In her speech, though she did not mention it by name, it was clear DeVos was addressing the Obama Administration's Dear Colleague Letter. The Dear Colleague Letter was released under the Obama Administration in 2011 to colleges and universities, addressing on-campus sexual violence and how such matters should be investigated and adjudicated. Legally, the letter was non-binding, but in practice, it was treated as though it were. There was an increase in support for the sexual assault victims paralleled by an assumption the accused was guilty before proven guilty. Obama Administration's guidance on campus sexual assault effectively weakened the burden of proof to a “preponderance of the evidence” standard as opposed to the “beyond a reasonable doubt” standard.

Several notorious cases throughout the country have exemplified the failure of universities to provide due process when sexual assault claims were made. In her speech, Betsy DeVos highlighted a recent case at the University of Southern California where an athlete and his girlfriend were engaged in consensual sexual conduct. An eyewitness thought otherwise and told another person who told the coach who then reported it. By the beginning of August, when a new semester was set to begin within weeks, the athlete was not enrolled -- he had been dismissed and the school would not confirm if he was expelled altogether. The girlfriend said the school's administrators refused to believe her, rather they treated her as though she were a "battered woman," and as such, unable to tell the truth of the so-called sexual assault.

Sexual assault is committed on school campuses. Consent is the central key element. A.R.S. Section 13-1406, defines sexual assault as “intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.” (emphasis added). Consent, however, can be a subjective and highly complex element to prove. In fact, a new study released in August 2017 attests to just how complicated consent is. Moaning and Eye Contact: College Men's Negotiations of Sexual Consent in Theory and in Practice is an extensive study conducted by the University of Michigan and demonstrates how consent is interpreted by both parties and illustrates clearly how the line between consent and no consent is truly blurred.

Your best bet, as a student on campus, is to make sure you have affirmative consent: the partner verbally says yes and is not impaired in any way by drugs or alcohol. If you are in a position where you engage in sexual conduct and are subsequently accused of sexual assault, you should obtain the advice of an experienced criminal defense attorney who specializes in on-campus sexual assault. You will, no doubt, be facing a hearing at your school and criminal charges. Independent of each other, both require the sensitive legal support needed to address the allegations and the resources of an experienced criminal defense attorney to protect your rights to due process and a fair proceeding.

About the Author

Steven Sherick

Steve Sherick is a "near native" Arizonan having lived most of his life in Tucson.  He received his undergraduate and legal education at the University of Arizona.  Since 1980 he has devoted all of his practice to criminal law, always in defense of those accused of crimes.  He received his Board ...

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