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Judges across the country are saying “no” to the “yes means yes” standard of affirmative consent for date rape.The legality of the standard – adopted on California and New York campuses by state legislatures and in effect on numerous other colleges throughout the country – is in question following a series of recent rulings that cite a lack of due process.“These decisions are harbingers,” said John Banzhaf, a professor at George Washington University Law School and a public interest lawyer. “It does take time for new ideas to percolate through the system.”Under the standard, the accused, typically a male, has to prove he obtained consent, even if neither party remembers what happened. The standard forces the accused to prove his innocence, rather than be proven guilty.
A student expelled from the University of California-San Diego had an “unfair” hearing, Superior Court Judge Joel M. Pressman ruled in July. The John Doe accused in the case said he was unable to cross-examine his accuser and other witnesses. He also said he was forced to submit questions to a hearing panel in advance, and many of his questions were then rejected. Pressman agreed this was a violation of his due process rights.
