Month: January 2019

Judges question ‘practical efficacy’ of fair hearing when single official does everythingThe era of serious punishments based on a single official’s investigation is over at the University of Southern California.

For the second time in less than a month, a California appeals court ruled that the private university denied a student accused of rape a fair hearing, and that the same Title IX official conducted a shoddy investigation.

The three-judge panel ordered a lower court to remove USC’s findings against “John Doe” from his record, and awarded him his costs on appeal. The university will also have to create procedures to allow accused students to cross-examine both their accusers and witnesses in some form.

This went even further than the previous appeals panel in the December ruling against USC, which explicitly declined to rule whether accused students have a right to cross-examine anyone beyond accusers.

“When credibility of witnesses is essential to a finding of sexual misconduct, the stakes at issue in the adjudication are high, the interests are significant, and the accused’s opportunity to confront adverse witnesses in the face of competing narratives is key,” said the opinion, written by Justice Thomas Willhite.

Challenging the December appeals panel even further, Willhite questioned whether the right to a fair hearing has “any practical efficacy” when a single official acts in the “overlapping and conflicting capacities” of prosecutor and tribunal.

“Under such circumstances, the performance of this key function is simply too important to entrust to the Title IX investigator in USC’s procedure,” Willhite wrote. His opinion was joined by Justice Audrey Collins and Orange County Superior Court Judge Kim Garlin Dunning, sitting by designation.

“The decision against USC appears to be consistent with the new Title IX guidelines” proposed by the Department of Education last fall, which are open to public comment through January, Doe’s lawyer Mark Hathaway wrote in an email.

‘The courts are making substantive changes,’ but USC did everything right

Both rulings fault the choices made by Title IX investigator Kegan Allee, particularly her failure to interview relevant witnesses and pursue exculpatory evidence.

USC staff identified in the past year’s rulings against the university appear to have not been sanctioned for their failures as documented by judges.

Allee is now listed as assistant director of the Title IX office. Two officials caught calling an accused student “motherfucker” – Gretchen Dahlinger Means and Patrick Noonan – still have their titles.

USC declined to answer College Fix questions about how it’s specifically changing procedures in response to the rulings, and on what timeline; when it promoted Allee (in video below), whether she’s still handling investigations, and how the rulings may affect her employment and personnel file; and whether Means and Noonan have experienced sanctions.

MORE: Huge judgment against USC after calling accused student ‘motherfucker’

A spokesperson provided a statement Saturday that says the investigation at issue in Friday’s ruling, which started in fall 2014, “was conducted in compliance with its student conduct policies and with state and federal laws in place at the time of the investigation.”

USC emphasized that “no case in California required a private university to conduct a live hearing” when the lawsuit was brought, “or to permit the responding student to confront and cross examine either the complainant or witnesses”:

The courts are making substantive changes to the requirements for Title IX investigations. USC will keep abreast of these evolving judicial interpretations and requirements, and most importantly, remains committed to preventing all forms of misconduct on our campuses, to providing outstanding care to all students, and to ensuring we have policies and procedures that prioritize respect for our students and our entire university community.

Removal of sex-offender designation will help him ‘to some degree’

Though the accused student is identified pseudonymously in Friday’s ruling, he has been previously identified as former USC football player Bryce Dixon.

USC tried to head off Dixon’s lawsuit from the start, arguing he wasn’t eligible to return to USC. It expelled him in 2015 for “nonconsensual sex acts” with the accuser, “Jane Roe,” but the following year Dixon was sentenced to six years in prison for a string of violent robberies, according to the Los Angeles Times.

The university expelled him again after his conviction for “independent violations” of the student conduct code. It maintains that the lawsuit is moot because of this second unrelated expulsion.

Neither the trial judge nor appellate judges bought the university’s argument. USC has branded Dixon a sex offender, which will have “an immediate and lasting impact” on his life, from personal relationships to educational and employment opportunities, Friday’s ruling said.

Removing his sexual-misconduct expulsion from his record would make it easier for Dixon to transfer and restore his reputation “at least to some degree” for the public, it said.

A history of hooking up with football players – and being reprimanded

As with December’s ruling against USC, this Title IX proceeding involved alleged bruises on the accuser but no physical evidence.

Dixon was a freshman on a football scholarship when he had sex with Roe, a senior and student athletic trainer, just after midnight on Oct. 24, 2014.

Trainers had been warned not to “hook up” with athletes or they would lose their jobs. But according to Roe’s roommate of three years, “E.C.,” she had a history of sleeping with football players and had been “reprimanded for unprofessional conduct” before her encounter with Dixon.

The opinion notes that much of Allee’s interview with the roommate, including Roe’s relevant sexual history, was redacted in Allee’s notes. The investigator did not record interviews and only provided summaries of her raw notes in her report.

The Student Behavior Appeals Panel also refused to give the roommate’s redacted interview to Dixon, including an alleged “group text” warning to trainers, claiming it was irrelevant.

MORE: Appeals court blasts USC for indifference to exculpatory evidence

Roe texted Dixon around 11:30 p.m. Oct. 23. She later told Allee that she was going to his place to smoke marijuana with him after getting “tipsy.” She said he forcefully groped her as they walked to a taco stand together, yet Roe agreed to return with him to his apartment, believing they would only smoke together, not have sex.

E.C. and Roe’s other roommates had “teased” her about the likelihood she would “hook up” with Dixon before she went over. To convince them she wouldn’t, Roe texted one of them continually while she was with Dixon. “None of Roe’s texts expressed discomfort about the way Doe touched her,” the judges note.

Dixon denied in his interview that Roe smoked any marijuana with him. His intentions for that night were clear, as revealed by a series of “flirtatious texts” that Allee left out of her report, the judges note. Dixon told Roe she “should wear nothing” and “come over naked” to his place, and she responded “Hahaha no I’m not going over to your place naked” and she couldn’t “guarantee anything.”

While claiming she couldn’t remember several details of the night, Roe told Allee that Dixon made her touch his penis, roughly grabbed her breast and then had rough sex with her while she protested. He put his hand over her mouth at one point. Roe said she was “repulsed” by how quickly Dixon moved to sexual intercourse and claimed he didn’t use a condom.

December 26, 2018 Stacy M. Brown, NNPA Newswire Correspondent, @ StacyBrownMedia

A dozen years ago, Tarana Burke created the slogan, “Me Too.” Burke, a Bronx, N.Y.-born African American civil rights activist, created the saying as a means to help women who had survived sexual violence.

Years later, the hashtag “#MeToo” took off, initially without properly crediting Burke.
The movement also seemed initially to exclude women of color or, in the view of many, disproportionately focus on victimized white women – prompting Burke to passionately tell African American women earlier this year, “don’t opt yourself out of what was started for you because the media isn’t acknowledging your hurt.”

Mostly white actresses in Hollywood have become the public face of the movement and men like Matt Lauer, Charlie Rose, and Les Moonves have lost their high-profile jobs.

The success for proponents has been increasingly measured in terms of the career, stature, title or reputation loss experienced by the growing group of the (mostly men) accused in the media and a much smaller segment of accused that have been charged and/or convicted of crimes.
As some in the movement include Bill Cosby’s conviction on aggravated indecent assault charges as another consequence of #MeToo, the pending charges and trial outcomes against movie mogul Harvey Weinstein remain unsettled.

Cosby’s trials were so adversely impacted by media rhetoric and public perception that the inaccurate reporting of the actual substance was an unsworn-in additional witness against him — including a prosecutor who cited Cosby’s conviction as a centerpiece of his election campaign.

In fact, even though videos have emerged of several professional football players and other celebrities assaulting physically assaulting women in hotel lobbies, elevators and hallways, Cosby may ultimately find himself as the sole accused celebrity who serves actual prison time.
Most recently, the movement was also credited for canceled office holiday parties and a growing number of radio stations refusing to play the classic song, “Baby, It’s Cold Outside,” after many claimed that the singer is trying to persuade a woman to stay with him by offering her a drink.

“While it’s critically important that women who’ve been assaulted are heard, we cannot forget about the fundamental right to due process that our great country was founded upon,” said Andrew Miltenberg, one of the nation’s leading due process attorneys.

“This is a dangerous time in our nation’s history, reminiscent of the days of McCarthyism, where a single accusation is enough to end a career. Even baseless charges can ruin a lifetime of work in some situations,” Miltenberg said.

With more than 200 men losing positions and Cosby jailed, some are beginning to look at the movement with a suspect eye.

Actor Sean Penn famously said the campaign has been too black and white and it has divided men and women. Penn also said the movement “is being led by mania.”

He told NBC’s Today Show that he’d like to think that none of it was influenced by what they call the movement of #MeToo. “I think it’s influenced by the things that are developing in terms of empowerment of women who’ve been acknowledging each other and being acknowledged by men,” Penn told Today. “This is a movement that was largely shouldered by a kind of receptacle of the salacious.”

When the show’s host, Natalie Morales, asked Penn to clarify his use of the word “salacious,” the actor doubled-down. “Well, we don’t know what’s a fact in many of the cases,” Penn said. “Salacious is as soon as you call something a movement that is really a series of many individual accusers, victims [and] accusations, some of which are unfounded,” he said. “I don’t know the percentages, but I know that there are some lies that have been told publicly about people; I know of some serious omissions. I’m talking about women towards men.”

Actress and former Playboy model Pamela Anderson has also criticized the #MeToo movement.

She has argued that many of the cases stem from actresses taking meetings in hotel suites alone with male executives. Anderson has argued that she’d never go to a man’s private hotel suite for a business meeting alone, particularly if the man answering the door is “only wearing a robe.”

“I think this feminism can go too far,” she said in an interview earlier this year with Australia’s

“60 Minutes.”

“I’m a feminist, but I think that this third wave of feminism is a bore. I think it paralyzes men,” she said. “My mother taught me don’t go to a hotel with a stranger. If someone opens the door in a bathrobe and it’s supposed to be a business meeting, maybe I should go with somebody else. I think some things are just common sense. Or, if you go in, get the job.”

At its best, the #MeToo movement has been a much-needed corrective to the abuses of power, said Attorney Justin Dillon of the Washington, D.C.-based firm of Kaiser Dillon PLLC. “At its worst, though, it’s been an excuse to unfairly ruin people’s lives and reputations without any form of due process or testing of the allegations.”

“There is no #MeToo court [where] you can go to get your reputation back and filing a real lawsuit is prohibitively expensive for most people. Plus, the media often confuses allegations with proof, which is both lazy and harmful,” Dillon said.

Celebrities and business moguls aren’t alone in feeling the brunt of the #MeToo movement.
Even children have been accused.

Nine-year-old New Yorker, Jeremiah Harvey, who is black, was falsely accused of groping and sexually assaulting Teresa Klein, a white woman, at a Brooklyn store.

Klein, later dubbed “Cornerstone Caroline” by social media, called police after she falsely accused young Jeremiah of assault – cameras showed the child never touched Klein.
“I felt humiliated because of the way she was acting,” Jeremiah said in a later broadcast interview.

Historically, false allegations of sexual assault have been a frequent and persistent phenomenon – particularly for black men.

Earlier this year, the 1992 convictions of Van Dyke Perry and Gregory Counts, two African American men, were vacated when the alleged victim revised her story after new DNA evidence was discovered that exonerated the two men.

Of course, the most prominent example of someone paying a high price for a sexual assault they didn’t commit was Emmett Till. Till, who was black and only 14-years old, would never reach his 15thbirthday after becoming the victim of a lynching and murder in Mississippi, igniting the Civil Rights movement in 1955.

In 2017, Carolyn Bryant Donham, Till’s accuser, admitted that she lied. According to a story fi led by Jerry Mitchell for the Clarion Ledger, “… Carolyn Bryant Donham has admitted she lied when she testified that Till touched her — a lie she repeated to the FBI a decade ago.”
Before Emmett Till, there was the Scottsboro Boys, nine black teenagers falsely accused in Alabama of raping two white women on a train in 1931.

That case was tried in front of an all-white jury and fraught with problems, including lynch mobs, threats of violence and injustice. Modern day allegations have also torn apart college campuses. In a recent Glamour magazine article, “Inside the Organizations that Support College Rapists,”

LillyDancyger writes, “On the other end of the spectrum, [Alice] True [Founder of] Save Our Sons cites a statistic that one in three students found guilty of sexual misconduct through Title IX hearings are in fact innocent—a statistic that comes from a UCLA study that focused on mathematical probability of false accusations without analyzing actual cases.”

The nonprofit Families Advocating for Campus Equality (FACE) notes that many college students have been tried and convicted and have had their reputations and lives torn apart over allegations that haven’t proven true.

According to FACE, at least 200 students claiming to have been falsely accused or found guilty of sexual assault on their campuses, have fi led lawsuits against their colleges, administrators and/or their accusers over the past several years.

Officials said there are more lawsuits pending across the country while nearly 100 court decisions have been issued in favor of accused students since 2013.

These lawsuits claim violations of due process, breach of contract and infliction of emotional distress, as well as decisions tainted by gender bias under Title IX, according to FACE’s website.

FACE officials said there are many, many more unjustly accused students who have resolved their disputes without legal action or are constrained by college-imposed confidentiality policies, and those whose claims have been settled are almost always bound by confidentiality clauses in their settlement agreements, officials said.

And of course, there are those whose futures have been devastated because they did not have the knowledge or resources to challenge the findings, and their college or university refused to acknowledge their innocence, FACE argues.