Both He and She Were Too Drunk to Recall Sex, So the University of Tennessee Expelled Only Him

Both Were Too Drunk to Recall How Sex Occurred, But Only He Was Expelled

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-- In what may foreshadow the end to a new "yes means yes" standard of consent for date rape, already been adopted in California and New York as well as on many other campuses, a judge has ruled - in a case in which both parties were so drunk they did not even know if sex had actually occurred - that the new standard violated the U.S. Constitution.This follows an earlier decision in which another judge had also ruled that the federal Constitution applies to date rape proceedings at all state colleges, and that it requires that the accused be provided with all the procedural protections required by Due Process.Law Professor John Banzhaf predicted, at the time of the earlier California ruling, that the Due Process requirement would be imposed on other universities, and now suggests that such rulings will continue.If so, the result could be disastrous for those who seek to make it easier to convict male students of date rape since the Constitution trumps federal and state legislation, as well as efforts by the Departments of Education and Justice to pressure universities to do more to convict students.In other words, if the Constitution prohibits a “yes means yes” standard of consent, or if it requires the right of the accused to cross examine the complainant as it did in California, that cannot be changed by legislation, by federal agencies, or even by the colleges themselves, warns Banzhaf.The Tennessee court held that it was unconstitutional for the University, under its "yes means yes" standard, to require the male student to establish his own innocence with proof that consent had been given, rather than putting the burden of proof on the accuser or the University as is always the case in both criminal and civil proceedings."If both students were too drunk to even remember if intercourse occurred, much less the circumstances under which it happened, it is obviously fundamentally unfair to require only one student but not the other to prove that there was consent," argued Banzhaf.It's certainly possible that she and not he was the aggressor that night if she climbed on top of him and herself caused the insertion, notes Banzhaf. If so, under "yes means yes," she could presumably be guilty of rape - or at least sexual assault - on him.Also, if neither one affirmatively provided consent, each would under "yes means yes" be guilty of sexually assaulting the other.Banzhaf is only one of many law professors, also including female professors, to complain that many university date-rape proceedings are blatantly unconstitutional.