As the Campus Rape Narrative Unravels, Will Due Process Strike Back in 2015?

However, any reading of the standard, which moves the burden of proof on the accused, or seeks serves to enforce traditional gender roles (men always want sex, women don't want sex, men are solely responsible for initiating and seeking consent), would be IMO a gross miscarriage of justice.

I guess I don't see how this standard reinforces traditional gender roles because it holds each party responsible for gaining affirmative consent.

I wasn't necessarily prepared for my original comment to start a debate about affirmative consent. And my opinion on the subject is pretty uninformed because I do think we have to wait and see how it works.

But I don't think I necessarily agree that shifting the burden with regards to proving consent amounts to a gross miscarriage of justice. Generally, to prove criminal rape, the state has to prove 1. sexual intercourse; 2. force or fear; 3. lack of consent. (Note that this isn't always true, and there is at least one state in which consent is an affirmative defense that the defendant can prove to avoid a conviction.) But there is no other felony besides rape that requires proof of lack of consent. For example, if I'm holding my laptop, and someone takes it from me with intent to steal it, the state can make its case for larceny without having to prove that I didn't consent to give the person my laptop. The defendant can prove I consented to him taking my laptop in order to avoid conviction. Comparatively, when its rape, when someone takes another's body for their own use, the standard is different. The state has to prove that the person didn't allow the other person to take their body for that moment.

I'm only talking about criminal rape above. But obviously if I don't think shifting the burden for consent is a a miscarriage of justice in a criminal setting, I don't think its a problem in a college setting where the due process requirements are less.

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