Today an interesting article came out discussing the concept of "affirmative consent" in the Wall Street Journal. Affirmative consent is where the accused must show that the accuser gave affirmative consent -- and that the accuser's actions during sex are not enough. A Judge in Tennessee found that this way of thinking shifts the burden to the accused and would violate due process. Evidently, state laws in California, Connecticut and New York require schools to find affirmative consent in school disciplinary hearings involving allegations of criminal sexual conduct.
Our firm forecasts that these laws will be some of the next to be struck down as Title 9 law has recently improved. Recently, the school processes have been amended -- requiring students to have the right to confront their accusers and to have credibility hearings in these cases. We predict that the due process rights for students will continue to increase as universities and colleges are facing lawsuits for depriving the accused of their constitutional rights.
In criminal sexual conduct cases in Michigan, a major issue in dispute is frequently consent. Consent is defined as permission for something to happen or agreement to do something. Historically, the circumstances and actions of a person could indicate whether they were in fact consenting. Requiring something beyond that is a new line of thinking gaining popularity.
It has also caused substantial confusion in many of our cases. Recently, we have worked with clients that had accusers who were not sure they were assaulted, but felt uncomfortable so they decided to report to police. We have had a number of complainants who became uncomfortable with sexual activity they engaged in the next day and went to police not knowing if it would be considered assault. This is scary and alarming. While the "Me Too" movement has drawn attention to the epidemic of sexual assault, it has also caused some people to become confused by what truly is a criminal assault. We hope that further education regarding consent will help clear these issues.
In other circumstances, we have seen women report that because they were intoxicated at the time of sex, their friends have convinced them that it was necessarily a sexual assault. In Michigan sex crimes cases, this is simply not true, unless the person is so intoxicated they cannot consent, or if they are physically helpless or passed out asleep.
We are hopeful that the schools will get this issue right in evaluating further claims of criminal sexual conduct and also hopeful that continued education will help people determine when a line has been crossed a crime has truly been committed. Being accused of a serious crime like rape can have a life long impact even when the person is found to be innocent. These cases are tremendously difficult and stressful because the penalties and repercussions are so high.
Our practice focuses on criminal sexual conduct cases and has found that our team has a unique and effective team approach to winning them. A part of the job of a criminal sexual conduct lawyer in Michigan is always to educate the jury about the law, and also how popular public opinion is not what dictates what is a crime. We have been successful in addressing these issues before juries. If you or a loved one have been accused of a Michigan sex crime and need a lawyer, please do not hesitate to call. It is important to hire a lawyer with specialized knowledge on how to handle these ever evolving cases and issues!