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Proposed âVictim and Survivor Bill of Rightsâ Further Jeopardizes New York ĂÛÖÏăÌÒâ Due Process Rights
New Yorkâs proposed budget for 2015â16 reportedly that should concern due process advocatesânamely, the codification of an âaffirmative consentâ standard for college students engaged in sexual activity and a âVictim and Survivor Bill of Rightsâ that appears to preclude accused students from being presumed innocent until proven guilty. Brooklyn College professor KC Johnson details several problems with the âBill of Rightsâ in a column for posted yesterday.
I reported on the State University of New York (SUNY) systemâs adoption of the âaffirmative consentâ standard last October, and Governor Andrew Cuomo the adoption of a âSexual Violence Victim/Survivor Bill of Rightsâ for SUNY schools in December. If similar mandates are passed within the state budget, colleges and universities across the state will be governed by the same standards that already jeopardize the due process rights of students in the SUNY system.
As with Californiaâs affirmative consent law, SUNYâs standard fails to clearly articulate what is required of students about to engage in sexual activity. , for example, that under New Yorkâs standard, consent must be âinformed,â and asks:
Whatâs the difference between an âinformedâ and âuninformedâ agreement? The vagueness of this language makes it almost impossible for an accused student to defend himself.
Common sense hardly guides the question of what students must be âinformedâ about before consenting to sex. Ohio State University, for example, both parties to âagree regarding the who, what, where, when, why, and how this sexual activity will take place.â The why?
Johnson also of the mandate regarding the presumption of innocence:
Then thereâs right (e) of the proposed bill of rights: âBe free from any suggestion that the victim/survivor [sic, at this stage of the process] is at fault when these [alleged] crimes and [alleged] violations have occurred, or should have acted in a different manner to avoid such a crime.â ...
[I]magine how an accused student could possibly defend himself, given that the accuser is to be givenâas a matter of state lawâright (e). Could he suggest that the accuser actually consented to the sexual intercourse? It appears not, since this line of defense would suggest the accuser was at least partially âat faultâ for what occurred. âŠ
For someone who believes, as Cuomo apparently does, that the filing of a claim in and of itself transforms an accuser into a survivor, right (e) makes perfect sense. For those who believe in the presumption of innocence, however, the ârightâ is horrifying.
The uphill battle will get even steeper for students accused of sexual assault if Cuomoâs proposal is adopted. :
Cuomo also seeks to give the accuser the right to exclude âprior sexual history or past mental health history from admittance in the college disciplinary stage that determines responsibility.â No state has such a broad rape shield law, and for good reason. Imagine its application (taking an easy example) to the Duke lacrosse case. There, the prior sexual history ofâin Cuomoâs languageââsurvivorâ Crystal Mangum was vital to the defense, since it provided an explanation for the only âinjuryâ that she allegedly suffered (diffuse edema of the vaginal walls). And if a trial had occurred, the contents of Mangumâs 1000-page mental health file would have been critical for the defense to explain her actions. But according to Cuomo, if Mangum made her allegations on a New York college campusâpublic or privateâthis vital exculpatory evidence would have been barred.
Johnsonâs concerns about the presumption of guilt and the potential exclusion of exculpatory evidence in campus sexual assault hearings should be considered in full. Read the rest of his column at .
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