This Note examines the codification of affirmative consent statutes in New York and California as well as the language of Title IX of Education Amendments of 1972, with the ultimate goal of demonstrating that the two statutory constructions cannot co-exist without jeopardizing accused students’ due process rights. During the course of a college or university disciplinary proceeding in an affirmative consent jurisdiction, the potential exists for a burden shift onto the accused student to affirmatively prove consent was obtained. Such a shift directly conflicts with Title IX mandates for prompt and equitable treatment. This Note proposes that in order to mitigate any confusion created by the aforementioned conflict between affirmative consent statutes and Title IX, a policy shift in college and university disciplinary proceedings is necessary. Rather than require an accused student to face a panel of peers and administrators in a hearing forum designed to decide the student’s responsibility, this Note proposes an investigatory model as a more appropriate format for adjudicating sexual assault cases on college campuses. The investigatory model allows colleges and universities to conduct comprehensive interviews and investigations in a less contentious, less formal setting, allowing schools to gather and contest necessary facts to make an informed decision on responsibility and sanctions, while more effectively honoring accused students’ due process rights.
"Affirmative Confusion: A Proposed Paradigm Shift in Higher Education Disciplinary Proceedings,"
University of Massachusetts Law Review: Vol. 11
, Article 6.
Available at: https://scholarship.law.umassd.edu/umlr/vol11/iss2/6