Some believe that the nation’s criminal sexual misconduct laws place too much of an onerous duty upon prosecutors to prove criminal charges levied against men by women in cases where “consent”, or the lack thereof, is an element of the offense. The New York Times, in a recent article, sort of opined that the burden should be lessened, at least to the extent that the law should require more than a woman merely freely giving her present agreement to perform the particular sex with the man—they would argue that the defendant should have an affirmative duty to establish (before the fact finder) that the women indeed consented. Shifting the burden in a criminal case, from the state to the defendant, would mark a fundamental change in American Jurisprudence; the law has long held that a prosecutor must prove the case against the defendant beyond a reasonable doubt. Those who advocate for a shift appear to be focused only on convictions and could care less about traditional notions of fair play and due process. As colleges continue to beef up their sexual conduct policies and disciplinary options, male students seem to be getting the short end of the stick. At least one judge has found that to be true in a case where a female student alleged improper sexual contact and college administrators suspended the student without affording him due process; such rulings are like to ripple across the country.
One can never be sure what someone is thinking, and to require them to do so, at the risk of being kicked out of college, or criminally charged, is wrong. We are not talking about acts of rape where “force” (defined as: the intentional infliction, or attempted infliction, or threatened infliction by the defendant of bodily harm or commission or threat of any other crime by the defendant against the woman or another when the woman reasonably believes the defendant will execute the threat), or where there are other extenuating factors present such as age, physical harm, etc.—those crimes are usually covered under other sections of the various state codes—we are only referring to those instances where the lack of consent forms the basis for the criminal charge. We simply believe that the imposition of an affirmative showing of consent by the defendant is not only wrong, it is dangerous and impractical. As we have said before, week college officials, frightened over the loss of money, have set out to declare war on sex on campuses in general, even though rapes occur far less often on a college campus than the streets. This whole business has gotten goofy—like in some murky waters, students should be advised to “Sex at their Own Risk”.