Month: April 2021

Guilty Until Proven Innocent: The Devastating Impact of the Pre-2020 Title IX Regulations on College Students Accused of Title IX Violations

Post author By Edward Bartlett
Post date April 30, 2021

Guilty Until Proven Innocent: The Devastating Impact of the Pre-2020 Title IX Regulations on College Students Accused of Title IX Violations

Natanya DeWeese, Esq.

It is common knowledge that criminal defendants have constitutional rights, including the right to confront the witnesses against them. College students accused of violating Title IX have far fewer rights. Instead of being found guilty beyond a reasonable doubt, they are found responsible by a preponderance of the evidence. This legal standard is applied by college faculty, staff, and sometimes students, many of whom have no legal knowledge. To a college student accused of violating Title IX, the possibility of losing their college education and future career is just as serious as a defendant facing criminal charges. If the due process protections given to accused students in the 2020 regulations[1] are rescinded, accused students will lose the few rights they have in these proceedings. As an attorney who represents students accused of Title IX violations, I have seen firsthand the devastating impact the pre-2020 regulations had on accused students and the unfair outcomes that resulted when the accused could not tell their stories.

The current policy of permitting advisors to cross-examine allows the accused to explore inconsistencies and challenge credibility, and allows the hearing panel to determine the truth. Without cross-examination, the accuser dictates the narrative, permitting hearing panels to find students responsible for sexual misconduct based on very little evidence. This has devastating consequences for accused students, including suspension or expulsion. If an accuser admitted in writing that she consented and she was not afraid of the accused, but testified to the contrary at the hearing, the accused would have no opportunity to question her about these inconsistencies without cross-examination. Without a way for the accused to ask follow-up questions or challenge the accuser’s credibility, a hearing panel would not explore possible evidence of consent and could find the accused responsible based on the accuser’s testimony. Since suspension or expulsion are likely sanctions for students found responsible for sexual misconduct, there is too much at stake to not allow the truth to be explored.

Before the regulations permitted advisors to cross-examine, colleges enacted poor substitutes that did not allow students’ stories to be told. Approaches included having students submit questions to the hearing chair in advance to ask each other at the hearing, having students or their advisor email the hearing chair during the hearing with questions for a witness, or relying on interview transcripts in the investigation file and not having the witnesses testify at all. These approaches resulted in students reading prepared answers at the hearing with no opportunity to ask each other follow-up questions, allowing hearing chairs to change the wording of questions so they asked something entirely different from what the student intended, and hearing panels making determinations based on transcripts of interviews with witnesses who had no personal knowledge of the incident and barely knew the accused. None of these approaches allowed accused students to meaningfully question their accuser or witnesses.

It is also important to retain the policy that colleges provide an investigative report that fairly summarizes the evidence. Without a fair report, colleges are free to proceed based only on information from the accused. In one case[2], the investigative file was missing most of what the accused student said in his interview with the investigator. The college claimed the recording of his interview was corrupted and the investigator didn’t take notes. Rather than interviewing him again, the college proceeded to a hearing, with a file that contained several pages of evidence from the accuser and half a page from the accused. The student was found responsible and suspended.

Students who are suspended or expelled for Title IX violations face the sudden end of their educational and career aspirations. They are left in a world of fear, uncertainty, anxiety, and depression. Do they want to return to the college that suspended them? Can they transfer to another college with this mark on their record? Do they even want to try? And what will become of their future if they don’t? They are ostracized by their peers and fear interactions with others. For the falsely accused, it is as if they are wearing a scarlet letter “R” for “rapist,” but they did nothing wrong.

Despite college policies claiming that students are presumed innocent, this is not always the case in practice, especially before the 2020 regulations. Students feel they are presumed guilty and that nothing they say makes a difference, especially when they are not given a fair opportunity to tell their side of the story or challenge the evidence against them. The process is traumatic and dehumanizing for students, creating a PTSD that is triggered even by receiving an email from a college official. They don’t trust the colleges to get to the truth of what happened. Without allowing students to cross-examine their accusers or receive a fair investigation, how can colleges accurately determine who is responsible and who is not?

I do not diminish the trauma that victims of sexual assault go through. OCR should consider that accused students are traumatized too, especially under the prior regulations that gave them few rights and little opportunity to have their side of the story told. OCR should give students equal rights and opportunities to be heard, because without regulations that give both students due process, the colleges will not.

Links:

[1] “U.S. Department of Education Launches New Title IX Resources for Students, Institutions As New Rule Takes Effect,” August 14, 2020, https://www.ed.gov/news/press-releases/us-department-education-launches-new-title-ix-resources-students-institutions-historic-new-rule-takes-effect

[2] OCR found that the college discriminated against this student on the basis of sex and did not provide him with a fair process. https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/02182335-a.pdf

Sexual Assault Sexual Harassment Title IX

Biden’s Enigmatic Executive Order on Sex Discrimination

Post author By Edward Bartlett
Post date April 29, 2021

Biden’s Enigmatic Executive Order on Sex Discrimination

Buddy Ullman

April 29, 2021

President Biden’s March 8^th Executive Order (EO) 14021 mandated “that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity” and directed Secretary of Education Cardona to review all Department of Education policies that might be inconsistent with the EO. Cardona’s review needs to be finalized by June 16^th. It’s a tight deadline.

By issuing EO 14021, President Biden is unmistakably targeting the new Title IX (TIX) compliance Rule that former Secretary of Education Betsy Devos effected in August, 2020. In fact, the Rule is specifically cited three times in the 1½ – page EO. Of note, the EO and the DeVos Rule are not the same: they overlap and clash.

In response to the EO, the Department of Education’s Office for Civil Rights, headed by Acting Assistant Secretary Suzanne Goldberg, issued a letter to stakeholders and press release announcing the launch of a comprehensive review of the Rule that she will head. Ms. Goldberg’s assessment is more expansive than that authorized by the EO and includes a public hearing, the issuance of a question-and-answer document, and most concerning, a notice of anticipated rulemaking that seems precipitous.

President Biden does not offer any explanation for why he believes that the DeVos regulations might be discriminatory and therefore inconsistent with EO 14021. Neither does Ms. Goldberg. Whereas there are components of the 2,033 page DeVos rule to which people disagree, there is absolutely nothing in the Rule that is even remotely discriminatory. In fact, the Rule vigorously supports compliance with TIX, which in itself is an anti-discrimination federal civil rights law.

President Biden did promise during the course of his campaign to put a “quick end” to the Rule, and Goldberg’s review may be a sly mechanism to accomplish this objective. Biden’s line of reasoning for his campaign promise appears to be his groundless belief that the DeVos Rule seeks to “shame and silence survivors,” and “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” I find his ratiocination to be nonsense, and I’m a progressive Democrat and ardent Biden fan.

Ms. Goldberg’s views on the DeVos Rule are largely unknown at this point, but she does report, ultimately, to the President. The Assistant Secretary in a 2019 op-ed did express her opposition to a pivotal component of the Rule, cross-examination (XXN) in a live-hearing format, but her dissatisfaction was based mainly on hypothetical disparities between advisors to the parties in a dispute, an argument also applicable to any criminal case in a court of law where XXN is a constitutional mandate. Ms. Goldberg’s argument against the Rule is not compelling and is offset by the enormous benefits that cross-examination brings to the truth-finding objective of a TIX investigation. Furthermore, eliminating XXN for students in TIX proceedings that would be constitutionally mandated for nonstudents in a court of law, I would argue, is the epitome of discrimination, and would be a violation of President Biden’s EO.

There are some noteworthy differences between EO 14021 and the one-sentence TIX, which states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The significance and impact of these discrepancies is obscure but disquieting.

EO 14021, for example, applies specifically to students, while TIX relates to all persons, most pertinently faculty and staff, who can be respondents in TIX proceedings, as I learned the hard way. EO 14021 also impacts students in all schools, whereas TIX is restricted to those schools and educational institutions that receive federal financial assistance. Because EOs are limited to the operations of the federal government, the jurisdiction of EO 14021 over educational institutions that are not overseen by TIX is unclear. Equivalently ambiguous is whether the current TIX regulations apply to violations of Biden’s EO that are not covered by TIX. EO 14021 stipulates no enforcement mechanism.

EO 14021 is also much expansive in its purview than TIX. TIX focuses on educational programs and activities, while Biden’s EO encompasses the educational environment. What exactly constitutes an educational environment is highly debatable. In contrast, the Rule’s directives pertaining to settings under a school’s TIX purview are transparent and were obliged by the Davis verdict that was affirmed by five liberal justices, including progressive icon Ruth Bader Ginsburg. The justices established that “the harassment must take place in a context subject to the school district’s control.” but the educational environment that is the focus of the EO includes places outside a school’s control, e.g., a home.

The punctilious and judicious Rule is predicated upon: (1) the United States Constitution, principally the 1^st, 5^th, and 14^th amendments; (2) judicial precedent, in particular the 1999 Supreme Court decision Davis versus Monroe County Board of Education that was affirmed by five liberal justices; and (3) congressional intent, i.e., the text of TIX. The Rule insists upon reasonable, fair, and equitable procedures by which gender discrimination, sexual harassment, and sexual assault disputes are investigated under TIX. Unlike the vague, discretionary, and now rescinded Obama-era guidance that was actually spearheaded by then Vice President Biden in 2011, the DeVos rule is constitutionally and legally sound and does not discriminate against respondents.

The vast majority of Americans support the due process and free speech provisions that are encompassed in the DeVos Rule. Joe Biden promised in his inaugural address to “be a president for all Americans.” Let’s hope he will.

Prosecutorial Misconduct Wrongful Convictions

From Moot Court to Criminal Court: A Former Law Student’s Harrowing Experience Before a Kangaroo Court

Post author By Edward Bartlett
Post date April 27, 2021

From Moot Court to Criminal Court: A Former Law Student’s Harrowing Experience Before a Kangaroo Court

by Cyrus Leigh

April 27, 2021

In January 2017, my life was not unlike the countless law students who had gone before me. I was well on my way to completing my Juris Doctor, and I had recently moved closer to the law school, where I was spending six out of seven days a week. The Spring semester began, and I was 21 credits shy of earning my degree.

Then, my life forever changed.

I received a phone call informing me of an accusation against me, a reprehensible form of abuse against my nieces, aged just three and four-and-a-half years old at the time. After the call, I was in a state of complete shock and disbelief. I contacted my family and later a close friend, a child psychologist, to try to make sense of what I had just heard.

Fortunately, I had the full support of lifelong friends, family, fellow law students, and law professors to stand by me throughout the process – as they still do today – in what I can only describe as a living nightmare.

A few hours later, the police were at my door. I agreed to answer their questions at the station, and afterward, they drove me home and shook my hand. As I walked into my building, I failed to recognize what was happening, nor could I foresee the almost four-year-long road that lay ahead of me. As one of my professors had succinctly put it, I was being “railroaded.”

For the next few weeks, I was in a daze. I met with an attorney who, after speaking with the detective, assured me that charges were not imminent.

However, a month later, that all changed. I was asked to surrender myself and criminally charged. I tried to remain calm, fully knowing a grievous mistake was made and expecting someone would soon rectify it. A family member and attorney told me I would receive bail and return home in a day or two to figure out this mess, but then I recalled the first attorney with whom I met informing me about a recent change in New Jersey’s bail law. To add even more perplexity to a bizarre situation, I learned the prosecutor would be seeking my pretrial incarceration at a forthcoming detention hearing.

Ten days after being held in a solitary cell, just a month after I stood in moot court, I found myself standing in a real court. Instead of playing the role of a prosecutor donned in a suit in front of my classmates as I had only weeks earlier, I was now a prisoner dressed in chains, shackled among other inmates.

Instead of a class exercise having professors judge my advocacy skills about a hypothetical case, I stood in front of friends and family, being falsely accused of the most heinous and vile crimes, facing 25 years to life imprisonment, and deemed by a real judge – under a two-month-old bail reform statute, enacted to afford non-monetary conditions of pretrial release to low risks like myself – that because there was clear and convincing evidence of my dangerousness or flight risk, I had to be preventatively detained pretrial and thus sent back to the dungeon.

The prosecutor had argued for, and the judge ordered my detention, despite no evidence against me; dozens of letters of support submitted from family, friends, law students, and professors; three friends testifying to my good character and, most importantly, complete factual innocence. Moreover, it was precisely due to my lack of a criminal record that the state’s pretrial risk assessment determined I was the lowest possible risk for pretrial release.

It was only months later that I learned the state’s proposed pretrial order recommended my release on home detention and electronic monitoring – an important document that failed to surface during my detention hearing.

Within a month, I went from moot court to criminal court; two cases, the latter just as false and fabricated as the former, yet with catastrophic consequences. I witnessed first-hand a fictitious case develop around me, only to later envelop me whole. There are no words that can ever adequately describe that day or the years that have since followed, yet I suppose the most overused but apt term is Kafkaesque.

Nine months after my arrest on false charges, indicted, and facing 25 years to life, the state offered me a plea deal to time-served. I was speechless.

I had naïvely assumed a proper investigation would exonerate me, that the state would dismiss all charges, and I would receive an apology. I maintained my composure and sanity for months with this expectation.

A few weeks later, my attorney told me that the prosecutor would dismiss all the original (sexual) charges and amend two counts in the indictment from sexual endangering the welfare of children to non-sexual endangering, something I was neither accused of nor indicted on. The factual basis of that offense (and my conviction) is “the habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language.” Again, I was astonished.

But after consulting with my family and counsel, we decided that it was in my best interest to accept the offer because, as we know, juries sometimes find innocent people guilty of the crimes they were charged with but had not committed.

And so, I accepted fault for cursing “in the hearing” of my nieces – and I went to prison.

After being intentionally misclassified by the prison and twice denied release by the parole board, the decisions all resting on the dismissed charges and not my actual conviction, I finally returned home in August 2020, after serving over two years in prison.

Sadly, I recently discovered that my conviction does not qualify for expungement, notwithstanding my former attorney’s assurances. Moreover, despite the Assistant Dean of my former law school’s assurances to my family, I learned that I would not be permitted to re-enroll and complete the final 21 credits required to earn the degree.

Thus, I have lost a substantial investment, years of my life (and so much more), and earned instead of a degree in law, a permanent criminal conviction – all because of one person’s malice and a prosecutor’s lack of integrity.

Victims Violence Against Women Act

‘Discarded’ Abuse Victim Speaks Out: VAWA Bill Reveals How Victimhood Professionals Exploit Victims

Post author By Edward Bartlett
Post date April 27, 2021

‘Discarded’ Abuse Victim Speaks Out: VAWA Bill Reveals How Victimhood Professionals Exploit Victims

Wendy McElroy

April 24, 2021

The Violence Against Women Act (VAWA) is currently in the Senate awaiting debate and reauthorization. VAWA is the federal touchstone for how sexual abuse, especially domestic violence (DV), is addressed and funded nationwide. It has vastly expanded from its 1994 roots and epitomizes not only the inevitable drift of government toward greater power but also the dynamics of how the victimhood industry abets in and weaponizes this power.

Much of current politics devolves to the question of who has a right to speak for the victim. Speaking for victims is a massive industry through which politicians and advocates can achieve immense status and wealth. They can also implement unrelated agendas as long as they are attached to cries of racism or rape. No wonder there is stiff competition among victimhood professionals for who has the right to speak for victims so that they can acquire tax-funding and the weight of law. In the jostle for power and podium, however, the victims themselves are often lost in the shuffle so that no one seems to speak for them, except out of self-interest.

VAWA is an example of victimhood professionals and legislators damaging the very people they claim to protect. It expresses the ground game of most if not all social justice campaigns?

A social justice campaign begins by sculpting the definitions of what constitutes DV and who is viewed as a “victim” in order to make them useful to the “correct” narrative and policies. Whoever controls the definitions wins the argument.

The House VAWA bill H.R. 1620 amends Section 40002 of the Violence Against Women Act of 1994 (34 U.S.C. 12291). The bill defines DV as:

“a pattern of behavior involving the use or attempted use of physical, sexual, verbal, psychological, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim.”

This vague and expansive definition would include lover’s quarrels (verbal abuse), threats of leaving the relationship (psychological), imposing a budget (economic), and sending emails repeatedly after a break-up (technological). It criminalizes common, nonviolent behavior so that government and law enforcement can intervene in the minutia of relationships to benefit one side. An example of an amendment: “Sexual contact is not a necessary component of such a relationship.”

Over time, VAWA’s has deeply embedded “the personal is political” into DV policies and law. The underlying theory of this slogan is that all actions and attitudes, however personal they may seem, have political significance; they occur within the political framework of an oppressive culture and impact society. Almost in self-defense, therefore, society has a ‘right’ to encourage—if not mandate—‘proper’ actions and attitudes; it has a ‘right’ to discourage improper ones, by law if necessary. This is the stripped-down core of political correctness and purpose of the social justice warrior….

Armed with obedient definitions, the next step toward social justice is to create a hysteria to establish the urgency of action. A common way to do this is to cherry-pick statistics that paint an alarming picture. Consider the VAWA section headed “Title IX, Safety for Indian Women,” especially on Native American women’s safety. It opens, “More than 4 in 5 American Indian and Alaska Native women, or 84.3 percent, have experienced violence in their lifetime.”

The statistic comes from the National Intimate Partner and Sexual Violence Survey (NISVS), “Violence Against American Indian and Alaska Native Women and Men.” But VAWA makes a curious omission. Immediately after the 84.3 percent figure cited, the NIPSVS reads, “More than 4 in 5 American Indian and Alaska Native men (81.6 percent) have experienced violence in their lifetime.” This is only 2.7 percent less violence than women but this data is ignored. If VAWA cares for “victims,” why the conspicuous omission?

The short answer: the omitted data do not support the social justice narrative or the goal of assisting the oppressed class of “women.” The dismal does not come from the ignorance of advocates or from indifference toward male suffering; they fear presenting an accurate picture. If a balanced discussion of sexual violence occurred, then their preferred group would lose its monopoly on victimhood; advocates would lose funding, status, and power.

Instead, they selectively use stats to declare a DV epidemic against women and to demand legislation. Often, the next step in a social justice campaign is to have carefully selected victims testify in public about their suffering. The testimonials serve at least three purposes other than stoking hysteria. They allow advocates to ride a wave of moral and emotional outrage that sidesteps the need for reasoned arguments. They silence critics who appear to be callous and indifferent to the revealed agony of women if they ask questions. They also push aside inconvenient victims who interrupt the desired narrative; not all of these victims are male.

If the foregoing analysis sounds cynical, it is partly because I am one of the discarded victims. I am legally blind in my right eye due to a severe DV beating I experienced in my 20s. But I do not agree with the ideology, goals, methodology, or conclusions of VAWA. And I am convinced that my experience would have been much worse if I had been processed by the victimhood industry. For one thing, they would have insisted on that my blindness were caused by the system and culture. I knew it had been caused by one man—not by all men, not by society—by one man. I am not the voice VAWA advocates want to hear; I am one of the voices they need to silence. As such, VAWA and other DV advocates have been cynical toward me simply because I want to speak the truth of my own experience.

The victimhood complex is a huge network of bureaucracy that directly results from “the personal is political.” But the personal cannot be found in a government agency. People will never be empowered by bureaucrats; people are empowered by speaking themselves.

Excerpted from: http://www.ifeminists.com/e107_plugins/content/content.php?content.1504

Campus DED Sexual Assault Directive Department of Education Sexual Assault

Did the 2011 DCL Contribute to University Failures in Staff-on-Student Sex Scandals?

Post author By Edward Bartlett
Post date April 26, 2021

Did the 2011 DCL Contribute to University Failures in Staff-on-Student Sex Scandals?

SAVE

April 26, 2021

Much has been written about the failures of the Dear Colleague Letter issued by the Department of Education in 2011, including:

No demonstrated improvement in the reporting of sexual assault
An increase in the rate of sexual assaults
Lawsuits by wrongfully accused students
Millions of dollars spent by university Title IX programs

Three highly publicized cases of staff-on-student sexual abuse suggest another shortcoming of the DCL policy:

Michigan State University: “The U.S. Education Department fined Michigan State University $4.5 million in September for failing to respond to sexual assault complaints against Nassar. The same day, MSU President Samuel Stanley Jr. announced the resignation of Provost June Youatt, saying the investigation findings showed she and former President Lou Anna Simon “failed to take appropriate action on behalf of the university to address reports of inappropriate behavior and conduct.” according to an account of the incident.”

University of Southern California: “Since the release of the initial Los Angeles Times article published on May 16, 2018, hundreds of USC students and alumni have come forward with allegations of sexual abuse, assault, battery, and harassment. Over the years, many patients reported that Tyndall was unprofessional, creepy, or made them feel “uncomfortable and violated.” There were multiple requests to change providers and not see Tyndall again. Complaints were generally addressed internally by USC Engemann Student Health Center executive director, Larry Neinstein.”

UCLA: “James Heaps, 67, a one-time gynecologist who is at the center of the scandal at UCLA, also still faces criminal charges for his actions during his 1983-2019 career at the university, in its student health center and at its medical center. The Los Angeles Times reported that the doctor was first arrested in June 2019 for sexually touching two patients in 2017….The UC system said that it has improved procedures and will undertake more reforms as part of the class-action settlement, the newspaper reported:

“UCLA agreed to create a new process for investigating allegations of sexual assault, harassment, and misconduct. It must also implement a formal chaperone policy for patients. It must also initiate a training program on boundaries and ensure that patients are informed about reporting misconduct.”

While the staffers’ sexual abuse of students began during the years prior to the issuance of the 2011 DCL, university officials consistently failed to take appropriate actions in response to student complaints made during the years following release of the DCL. This reveals that the Dear Colleague Letter did not improve university responses to complaints of staff-on-student sexual abuse. Indeed, the hysteria about student-on-student sexual assault, which permeated campuses during the past decade, may have diverted attention from the burgeoning problem of staff-on-student sexual abuse.

Domestic Violence

Women Who Think Hitting Their Husband is Funny

Post author By Edward Bartlett
Post date April 24, 2021

WOMEN WHO THINK HITTING THEIR HUSBAND IS FUNNY

Coalition to End Domestic Violence

April 24, 2021

One of the common refrains from domestic violence activists is, “There’s no excuse for domestic violence.” But apparently some persons haven’t taken this message to heart.

Speaking of her husband, singer Amy Winehouse once bragged, “I’ll beat up Blake when I’m drunk … If he says one thing I don’t like then I’ll chin him.”[i] Other women were equally amused their violent tendencies:[ii]

“I bounced an alarm clock off my husband’s head from across the room once.”
“I’ve had many satisfying dreams where I beat up my ex. If I saw him again, I don’t think I’d be able to restrain myself.”
“Yeah, I’ve punched the sh*t out of a guy. But I don’t like to brag.”

Ann Silvers, a counselor and author of the book, “Abuse of Men By Women,” highlights this continuing problem in a recent YouTube video about “Women’s Violence in Media.” Silver admits, “I’m really frustrated by the amount of times we see that depicted…It’s emboldened, it’s applauded, it’s laughed at.” Silvers gives several examples:

Romantic comedies such as Fool’s Gold
Commercials, such as a woman throwing a can of soda at the man
In the movie Frozen, in which the girl violently hits the guy

Silvers reveals that in her own counseling practice, she continues to see abusive women: “They’ll come in and a couple will tell me a story about her hitting him. And I’ll look at them both and say, ‘You know, that’s not OK.’ And at times I’ve gotten this look from women, ‘That was OK, I get to do that!'”

“If we’re going to justify somebody hitting somebody else, that’s exactly what’s wrong in partner abuse,” Silvers concludes.

Links:

[i] Amy Winehouse beats up her husband when she’s drunk. Starpulse News Blog. June 12, 2007. http://www.starpulse.com/news/index.php/2007/06/12/amy_winehouse_beats_up_her_husband_when_

[ii] Roberts C. Women who batter, proudly. Ifeminists.net October 5, 2007. http://www.ifeminists.net/e107_plugins/content/content.php?content.233

Violence Against Women Act

VAWA Reauthorization Must Stop Overly Aggressive Policing in Black Communities

Post author By Edward Bartlett
Post date April 23, 2021

VAWA Reauthorization Must Stop Overly Aggressive Policing in Black Communities

Coalition to End Domestic Violence

April 23, 2021

The “criminalization of social problems has led to mass incarceration of men, especially young men of color” – Ms. Foundation for Women[i]

Domestic violence is an important problem in the African-American community. According to the Centers for Disease Control, each year Black men are more likely than Black women to be victims of sexual violence, physical violence, and/or stalking:[ii]

48 million Black men (Table 5.6)
38 million Black women (Table 5.3)

Analyses show programs funded under the Violence Against Women Act have not helped women,[iii] are often ineffective,[iv] rely on biased arrest policies,[v] disregard due process,[vi] and weaken the family.[vii]

These problems are especially pronounced in the African-American community:

One study found that protection order statutes were associated with an increase in the number of black women killed by their unmarried partners.[viii]
Columbia University law professor Kimberle Crenshaw has noted that many women of color are reluctant to seek intervention from the police, fearing that contact with law enforcement will only worsen the system’s assault on their lives.[ix]
According to the FBI, African-Americans – mostly men — are disproportionately affected by mandatory-arrest policies. Blacks represent 23% of all spouses and 35% of all boyfriends or girlfriends arrested for partner aggression.[x]
A Harvard University study of mandatory arrest policies found that mandatory arrest laws brought about a 54% increase in intimate partner homicides.[xi]
Attorney Aya Gruber wrote, “Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men.”[xii]

According to the Congressional Black Caucus, African-American men are incarcerated at more than six times the rate of White men, partly as a result of “overly aggressive policing.”^[xiii] The over-reliance on law enforcement and criminal justice interventions has sent millions of Black men to jail, escalated partner conflict, and broken up families.

The upcoming reauthorization of the Violence Against Women Act needs to end this travesty.

Links:

[i] Ms. Foundation for Women. Safety and justice for all. New York, 2003, p. 17.

[ii] https://www.cdc.gov/violenceprevention/pdf/NISVS-StateReportBook.pdf

[iii] CEDV. Domestic Violence Programs Are Shortchanging Women. 2021. http://endtodv.org/wp-content/uploads/2021/04/Shortchanging-Women.pdf

[iv] CEDV. How effective are domestic violence programs stopping partner abuse? 2021. http://endtodv.org/wp-content/uploads/2021/04/How-Effective-are-DV-Programs.pdf

[v] CEDV: Justice denied: Arrest policies for domestic violence. 2021. http://endtodv.org/wp-content/uploads/2021/04/Arrest-Policies.pdf

[vi] CEDV: Without restraint: The use and abuse of domestic restraining orders. 2021. http://endtodv.org/wp-content/uploads/2021/04/Restraining-Orders.pdf

[vii] CEDV: How VAWA harms families and children. 2021. http://endtodv.org/wp-content/uploads/2021/04/False-Allegations-Harm-Families.pdf

[viii] Dugan L, Nagin D, and Rosenfeld R. Exposure reduction or backlash? The effects of domestic violence resources on intimate partner homicide. NCJ Number 186194, 2001.

[ix] Crenshaw K. Mapping the margins: Intersectionality, identity politics, and violence against women of color. Stanford Law Review Vol. 43, 1991. p. 1257.

[x] Durose MR: Family violence statistics. Washington, DC: Federal Bureau of Investigation, June 2005. NCJ 207846. Table 5.9. https://www.bjs.gov/content/pub/pdf/fvs.pdf

[xi] Iyengar R. Does the certainty of arrest reduce domestic violence? Evidence from mandatory and recommended arrest laws. Cambridge, MA: National Bureau of Economic Research, June 2007.

[xii] Gruber A. The feminist war on crime. Iowa Law Review Vol. 92, p. 941. 2007.

[xiii] https://cbc.house.gov/issues/issue/?IssueID=14891

Sexual Assault Sexual Harassment Special Report Title IX

PR: Appellate Court Decisions Reveal Widespread Due Process Deficiencies

Post author By Edward Bartlett
Post date April 22, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Appellate Court Decisions Reveal Widespread Due Process Deficiencies. Oberlin, Purdue, and USC the Most Egregious Cases.

WASHINGTON / April 22, 2021 – A new report summarizes 23 appellate court decisions of college procedures for handling allegations of sexual misconduct. Titled, “Appellate Court Decisions for Allegations of Campus Due Process Violations, 2013-2020,” the SAVE report summarizes the 23 court rulings, which document major deficiencies in the procedures that colleges and universities utilize to investigate and adjudicate allegations of sexual misconduct.

One or more of the appellate rulings apply to all colleges, public and private, in the following 31 states: AR, CA, CT, DE, IA, ID, IL, IN, KY, LA, MA, ME, MO, NJ, NY, OH, OR, MA, ME, MN, MT, ND, NE, NV, PA, RI, SD, TN, VT, WA, and WI. The report notes that 67% of all U.S. colleges are located in these states.

The most egregious cases involved the following three institutions:

Oberlin College, which advertised on its website that it had a 100% conviction rate.
Purdue University, where two hearing board members admitted to not reading the investigative report, but still voted to expel the accused student.
University of Southern California, which relied on a “judge, jury, and executioner” single-investigator model.

From a legal perspective, the most important ruling was the Doe v. Purdue University case, which made future allegations of sex discrimination easier to prove. The Seventh Circuit Court ruled that a student only needed to “raise a plausible inference that the university discriminated against [him] ‘on the basis of sex.’” (1)

Overall, the decisions enumerate a broad range of protections that are due on college campuses regarding adequate notice of the allegations, impartial and accurate investigations, disclosure of evidence to the accused, cross-examination, fair hearings, lack of conflict of interest among college officials, proper use of testimony, and institutional compliance with its own policies.

Seven public opinion polls have been conducted in recent years, all documenting that a strong majority of Americans support due process on campus (2). Recent editorials and statements by liberal and conservative voices reveal continued support for campus fairness (3).

SAVE urges college officials to become fully acquainted with the appellate decisions, and continue to fully implement the new Title IX regulation, which upholds rights and protections for both complainants and the accused. The new SAVE report is available online (4).

Links:

SAVE is leading the national policy movement for fairness and due process on campus: www.saveservices.org

Violence Against Women Act

If We Want to End Mass Incarceration, We Need to Stop Unconstitutional Mandatory Arrest Policies

Post author By Edward Bartlett
Post date April 21, 2021

If We Want to End Mass Incarceration, We Need to Stop Unconstitutional Mandatory Arrest Policies

Coalition to End Domestic Violence

April 21, 2021

The United States has the highest incarceration rate of any country in the world. Higher than Russia, South Africa, or anywhere else.

Mass incarceration hurts all of us: The persons who are arrested for minor or trivial offenses. The family members who lose, usually, a brother, a husband, or a father. The taxpayers who pay $50,000 per prisoner per year. And more.[1]

An arrest triggers the workings of the entire criminal legal system: Investigations, prosecutions, incarceration, and more.

Part of the cause of mass incarceration can be traced back to provisions in the Violence Against Women Act. The original law required VAWA grantees:

“To implement mandatory arrest or pro-arrest programs and policies in police departments, including mandatory arrest programs and policies for protection order violations.”

This provision obviously violates the Fourth Amendment, which requires “probable cause” before police can make any “seizures.”

Nonetheless, police departments across the nation instituted mandatory arrest policies. These policies have given rise to two serious problems:

Women now commit the majority of domestic violence incidents each year, according to the CDC.[2] But most arrestees are male,[3] reflecting a troubling sex bias.
Mandatory arrest has been shown to cause an increase in subsequent homicides. A Harvard University study concluded, “Intimate partner homicides increased by about 60% in states with mandatory arrest laws…Mandatory arrest laws are responsible for an additional 0.8 murders per 100,000 people.”[4]

Mandatory arrest policies have had a devastating effect on Black communities. The Ms. Foundation for Women decries how the “Criminalization of social problems has led to mass incarceration of men, especially young men of color, decimating marginalized communities.”

Given these compelling facts, one would have expected the House VAWA bill, H.R. 1620, to have addressed these concerns. But it didn’t. In fact, H.R. 1620 actually states we need to “encourage arrests of offenders,” ignoring the fact that a police officer often is unable to determine which party is the true “offender” (Sec. 102).

So if a woman slaps her boyfriend, and he shoves her back, who in their right mind believes both of them should be arrested?

The Coalition to End Domestic Violence calls on Senators to assure the upcoming VAWA bills take proactive steps to remove the harmful mandatory arrest policies that are still on the books across the nation. That will be good start to end our nation’s epidemic of mass incarceration.

Links:

[1] https://www.brennancenter.org/our-work/research-reports/conviction-imprisonment-and-lost-earnings-how-involvement-criminal?ms=gad_prisons%20in%20america_465051828443_8626214133_111612472200&gclid=EAIaIQobChMIzoiouOiP8AIVYsqzCh0jjwR6EAAYASAAEgL0f_D_BwE

[2] https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf Tables 9 and 11.

[3] https://www.bjs.gov/content/pub/pdf/prdv0615.pdf

[4]https://www.nber.org/system/files/working_papers/w13186/w13186.pdf

Campus Sexual Assault Sexual Harassment Title IX

Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses

Post author By Edward Bartlett
Post date April 21, 2021

Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses

April 21, 2021

“Victim-centered” philosophy has become widely utilized by campus adjudication panels across the country (1). “Victim-centered” ideology presumes that the accuser is always telling the truth, and any inconsistencies in his or her testimony are taken as actual proof of the putative traumatization. Of course, this assumption precludes the possibility that her memory was affected by excessive alcohol intake, or that she may be recounting a well-embellished falsehood.

Recently the New York Supreme Court ruled on a case in which a female student from the State University of New York – Purchase claimed she was a victim of PTSD, which she said precluded her from giving consent to sexual intercourse.

According to a recent commentary, the New York State affirmative consent policy states students “must obtain consent at every escalation of sexual activity through words or actions. In practice, schools have punished students after accusers claim they didn’t give constant consent, like a continuous question-and-answer session. As I have previously reported, there simply is no way for an accused student to prove they obtained affirmative consent under current, draconian policies.” (2)

According to Doe, he and a female Purchase College — State University of New York student were watching a movie one evening with some other students at Doe’s dorm suite. When Doe decided to attend another party, the woman asked, and was permitted to stay at the dorm suite with the other students.

When Doe later returned to the dormitory, the female asked another student to leave so the two students could be alone. She then asked Doe if she could stay the night and requested a pair of Doe’s pajamas to change into. The woman then got into Doe’s bed. The two students began to kiss, and the woman assisted Doe in removing her pajama bottoms. After some initial sexual activity, Complainant took the initiative to request Doe to use a condom. The encounter then progressed to sexual intercourse.

The following day, Doe attempted to contact the female student in a friendly, everyday manner. Three days later she reported the encounter as a sexual assault. A Title IX investigation concluded with Doe being charged with a violation of the Student Code of Conduct, which prohibits any sexual act without consent or sexual intercourse with someone considered to be physically helpless.

The school Hearing Board determined that statements by the woman (now the “Complainant”) about giving consent were conflicting and unreliable. The Board stated it was “concerned that some of [Complainant’s] statements after her initial report were tainted by reading the supports of other witnesses and parties.” This assessment was largely due to the woman’s accounts changing from what she said to the University Police and Title IX Investigator, compared to how she testified during the hearing.

For example, the Complainant told the Police that she was not fearful of Doe. But the woman later told the Hearing Board that she did not ask Doe to stop because she was fearful of him. Additionally, the student changed the reasons for her inability to give consent: First it was fear, then incapacitation due to alcohol, finally it was an anxiety attack.

In contrast, Doe testified that the Complainant was of sound mind throughout the interaction and believed there was clear-cut consent, based on her actions. Nevertheless, the Hearing Board concluded that while the kissing and removal of the Complainant’s pants were consented to, the remainder of the sexual activity was not. The SUNY Purchase’s Appeals Board found that Doe violated the Student Code of Conduct and suspended him for one year.

Doe then filed an Article 78 appeal to ask the New York Supreme Court to review SUNY Purchase’s determination that he violated code C.8 of the SUNY Purchase Student Code of Conduct.

The Court noted that its review of the case was limited to whether SUNY Purchase’s decision was based on substantial evidence. Substantial evidence is relevant proof that would lead a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

The Court cited Education Law § 6441(1), which states that “consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.” The Court noted that the college Hearing Board had reported Complainant’s testimony lacked credibility. The Court concluded that the SUNY Purchase’s decision to punish Doe “was not supported by substantial evidence,” and that the alleged absence of consent amounted to mere conjecture and speculation.

On March 31, 2021 the Court issued a ruling that annulled SUNY Purchase’s decision and dismissed the charge that Doe violated the Student Code of Conduct. Additionally, the Court vacated all penalties against Doe and ordered the expungement of any references to such findings from his academic record (3).

Kimberly Lau (4), counsel to the accused student, explained, “John Doe was found responsible of sexual assault despite the Hearing Board’s determination that the complainant’s testimony on consent was ‘unreliable and conflicting.’ SUNY Purchase’s disciplinary decision was illogical and in violation of NY State law and its own policies on consent. I’m pleased the Court unanimously agreed.”

OCR Review

Ironically, just three weeks before the Court issued its ruling, President Joe Biden issued an Executive Order calling for the Department of Education to consider “suspending, revising, or rescinding” the newly implemented Title IX regulation (5).

The Biden Order is relevant to the New York case because the new regulation requires that complainants and respondents be treated “equitably,” which means “impartial investigations and adjudications,” including “an objective evaluation of all relevant evidence,” according to the language of the regulation (6).

Clearly, the SUNY Purchase adjudication process was not impartial, objective, or equitable.

So as the Office for Civil Rights moves forward with its review of the Title IX regulation, the Office needs to pay attention to the findings of the New York Supreme Court. Specifically, the OCR needs to consider revising the existing regulation to discourage colleges’ reliance on biased “victim-centered” methods, and improve the specificity of its requirements for impartial, objective, and equitable adjudications.

Links: