Massachusetts Criminal Defense Attorney Blog
In an effort to address college rape and sexual assault claims the California legislature is honing in on some new laws focusing on consent. The law if passed will require that on all college campuses run by the state consent must be verbalized or written and obviously given in advance of the sexual activity. Consent cannot be assumed. While the details of the law are being debated it is agreed that “lack of protest or resistance does not mean consent, nor does silent mean consent”. Reading this law makes me wonder how long it will take before Massachusetts tries to tackle this issue.
How Will This Law Be Enforced?
Enforcement of this law will be a really interesting task. The law will apply only to state run colleges and universities. It is impossible to reconcile this law with existing rape and sexual assault law. In other words, changing the rules on states college campuses does not mean that a violation of the rule will warrant criminal prosecution. The proposed law requires that both parties affirmatively consent to the sexual act. Affirmative consent must continue throughout the sexual encounter. This is nothing new. Sex crimes laws embrace these principles. The proposed law however shifts the burden to the accused in some instances. For example, the accused must take reasonable steps in the circumstances known to him or her to determine whether the complainant affirmatively consented. This would never fly in a criminal proceeding. This component of the law would require the defendant to present a defense, something the constitution does not require. This undermines the presumption of innocence and the right to remain silent and not testify at trial. Affirmative burdens like this against the accused are not permissible in criminal cases.
How Will College Students Defend Against These Allegations After This Law Passes?
Anyone accused of a sexual assault on a college campus that applies these laws is going to have to be very careful in how they defend these charges. Students typically want to be heard. They want to tell their side of the story. This can be dangerous. The district attorney’s office can access statements made at college disciplinary proceedings. They can use this information to prosecute you. What you might think are benign statements might actually be quite incriminating. For example, suppose you are accused of rape at your college but not charged by the district attorney. Lets assume that the district attorney did not prosecute you because they believed that it might be impossible to show penetration, an element of the crime of rape. At a school disciplinary hearing you might admit to having sex but argue that the act was consensual. Now, however, your statement can be used by the district attorney to establish the element of penetration that they were missing. You could end up getting prosecuted for a serious felony because you chose to speak up at a school hearing.
Rape and Sexual Defense
We have been defending sex crimes in Massachusetts for nearly thirty years. Attorney Stephen Neyman can be reached 24/7 by call our office at 617-263-6800. We want to help you.