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.I'll keep an eye out for updates on this one, but tentatively good news.
"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.
Related: from a few days ago, another Ashe Schow piece about a Virginia judge permitting a John Doe case involving Washington & Lee University asserting gender bias to proceed.
When she returned to campus in the fall, Jane [Doe] claimed on a study abroad application that she had been sexually assaulted. She also attended a presentation by W&L's Title IX officer Lauren Kozak. Kozak claimed that "regret equals rape," and introduced the concept as a new idea people were now supporting.Update 8/11/2016: Here's the entire ruling of Mock v. University of Tennessee at Chattanooga (PDF). Also, Scott Greenfield has an excellent, must-read post on the case.
What distinguished the old school definition of rape was a clear line that assured that a person would know when conduct was wrongful. This line isn’t just a reasonable basis to hold a person accountable, but constitutionally necessary to give a person fair notice that he crossed over from lawful to unlawful conduct.
Under affirmative consent, both in its written prohibition and in its practical application, there is no line that the person engaging in the conduct can discern. The line ends up being wherever the other person feels it should be, whether at the time or at any time afterward. Even if males can read minds (they can’t, and neither can you), it wouldn’t enable them to know where the line is, as minds that change days, weeks, months later can’t be read at the initiation of sex.