Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“HOW DOES THE “YES MEANS YES” APPROACH TO CAMPUS SEXUAL ASSAULT PLACE ME AND MY KIDS IN DANGER?”

Ok, I admit that it is not still yesterday; I did not get this entry up yesterday. It doesn’t mean that I did not try…I was just out doing battle for my client longer than expected. Doing the job right has to take precedence. Believe me, when you are my client, you will appreciate those priorities.

Sometimes, you just can’t do everything.

Which brings us back to our discussion. The “Yes Means Yes” approach to combatting campus sexual assault cases.

Do not kid yourself, by the way. Today we are talking about it being “merely” college rules. Tomorrow it will be embedded in the criminal law. After all, if it “works” for the kids, shouldn’t it work for the “adults” as well? Particularly since most college students are adults under the law?

Proponents of new simple answers to complex problems like “date rape” and similar sex cases will shrug their shoulders when confronted by the difficulties in the approach.

They will simply say that, “Well, you can’t make everybody happy.” Of course, they are right. No one approach can satisfy everyone. There are nuances and various ways of looking at a problem. Different people have different perspectives. However, as adults, I think we have a responsibility to think through “solutions” to complex problems and not simply cater to those who simply want a quickie solution that feels good on the surface and ignore what it creates down the proverbial road.

In other words, I think you have to consider the various aspects and make a decision in accordance with your priorities. I heard a lot about priorities from my mother while growing up. Particularly when I was more interested in things OTHER THAN my schoolwork. I did not like hearing about it. It was not always terribly pleasant. So, I understand how our politicians feel.

The thing is, though, I grew up.

Attorney Sam’s Take On The Easy Answer Approach (Once Again) Part Three

Understand my bias. I believe in certain Constitutional guarantees like Due Process, Presumption Of Innocence and the prosecutor’s Burden Of Proof. I also tend to think that logic and human behavior should be taken into account when making decisions which can ruin lives are involved.

Even more than what politically sounds and feels good.

The “Yes Means Yes” approach makes those who want to prevent campus sexual assaults feel good so long as they do not think it through. It really fixes nothing, but merely creates more problems.

First of all, a central issue in these cases is that of credibility. In a case which focuses on consent, you generally have a complainant who says that the sex was against her will and a defendant who says that she had consented. The law is also clear that a complainant does not have to have put up a fight against her assailant. The fact that she feels intimidated can be enough.

The problem of credibility is not helped by the new approach. The positions of the complainant and the defendant will remain the same. Somebody is likely lying. The jury gets to choose who it is. Generally, the “Why would she lie” argument by the prosecution is one of the biggest hurdles to the defense. That, also, does not change.

Often, there are issues of extent. In other words, the testimony is that the two began “fooling around”, and nobody had a problem. Then, at some point, the complainant says she was no longer willing. At that point, you have the issue of force…or, at least, against the complainant’s will.

It not being in accordance with the complainant’s will is enough to gain a conviction. Now, however, there is an artificial test inserted to the sexual engagement. The complainant must have said “Yes”.

“Well, what if she is the aggressor?”

Not enough. Let’s say that that Future Complainant grabs Future Defendant’s belt, undoes it and starts to pull down FD’s pants. Technically, by the way, if FD does not like that, it was the crime of indecent assault and battery…so FC had better be guessing right that FD wants that done
In any case, after FD’s pants are down, FD returns the favor and, before you know it, the two are in a passionate embrace full of kissing, heavy breathing and touching. Now, FD begins to take the necessary step to accomplish sexual intercourse.

While there is no question that FC has not, and can not, lose the right to say “No”, if she is willing to continue, is it necessary for her to actually say “Yes”? Well, under the new approach, the answer is “Yes” she is.

“Is that realistic?”

Probably not. However, if she does not say “Yes”, they have sex and she regrets it tomorrow…FD has a big problem. She did not say “Yes”. He is guilty of rape as far as this approach is concerned.

On the other hand, how are the roles of complainant and defendant decided? What happens if the initiator is the one who only wanted to go “so far” and yet felt forced to go “all the way”? Absent the “Yes Means Yes” approach, shouldn’t that person have the right to not have gone through sexual intercourse?

Well, it is not clear if “Yes Means Yes” contemplated such a thing. Reason, should it be considered valid in this situation, would indicate that both parties were required to say “Yes” throughout the rapidly-changing fumbling around acts involved. Otherwise, I suppose they both should be thrown out of school and/or prosecuted.

But, then, we know how these cases tend to be decided when it comes to choose a complainant.

But I digress.

I remind you that this is a case in which everyone agrees upon the truth; that does not always happen. What does often happen is that a complainant declares the lack of permission a day or longer after the event. I suppose that the “Yes Means Yes” prosecutor in such an instance has a pretty easy case. But is it just…considering what being expelled, convicted of rape and registering as a sex offender will do to a life?

We are not talking about your typical street crime of rape here.

Clearly, as mentioned a couple of blogs ago, this shifts the burden onto the accused in an almost impossible way.

Should the couple enter naturally into the sex act, a time when conversations is often not the central urge for either, whoever decides that they did not want it retroactively has a lot of power to literally destroy the other person’s life. Simply because that same person (soon to be “complainant”) did not choose to utter the y-word.

So, these are just a few of the many problems with this approach which sounds and feels good if you say it fast and then forget about it before you have to think.

It is one of many scary trends in our criminal law about which I am often trying to warn you. Simply put, if you have a sex drive and are a student, or simply have a sex drive that involves another human being…understand that, by satisfying that drive…you are taking quite a risk.

If you or yours took that risk, and if it looks like the gamble did not pay off…engage the services of an experienced criminal defense attorney to try to manage the situation and protect your rights.

If not the rest of your life.

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