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‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness

‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness.

SAVE

May 13, 2021

On April 4, 2011 the Department of Education issued its notorious Dear Colleague Letter on sexual violence. Within months, SAVE wrote the Department urging that the unlawful policy be withdrawn. Following intense public criticism and numerous lawsuits against universities, on September 22, 2017 the Office for Civil Rights announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence.

One of the most important milestones in the six-year quest for campus justice was a Statement signed by 28 faculty members at Harvard Law School (HLS). The faculty members wrote “to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.”

But how did this Statement come to pass? On September 10, 2014, faculty member Richard Parker circulated an internal memo that began with the words, “We are a law school.” The memo outlines six constitutional values that are threatened by draconian campus policies:

  1. Procedural Due Process
  2. Equal Protection / Gender Discrimination
  3. Confrontation
  4. Coerced Self-Incrimination
  5. Free Speech
  6. Academic Freedom / Free Association

A month later, the Harvard Statement was published. And the rest is history.

Professor Parker’s entire memo is reprinted with permission, below.

++++++++++++++++++++++

September 10, 2014

To:         The Faculty

From:    Richard Parker

We are a law school.  As an institution, we have a long and deep tradition of both integrity and embarrassment.  Our moments of collective integrity have come when we have thought and acted as a law school.

When our committee says that the Interim Sexual Harassment Policy and Procedures  “meet legal requirements,” we know it’s never so simple.  Where, in the committee’s report, is the grappling with ambiguity and argument that is the essence of doing law — and that we demand of our students?   Is there no tension among “legal requirements”?   Where is discussion of constitutional “requirements” or values?

When the dean says, “the discretionary ‘space’ for revisions is narrow,” we know enough, as law teachers, to be … respectfully skeptical.

Once again, we are indebted to Betsy and Janet and Phil for waking us up. For now, I won’t address the proposal of a disruption of our longstanding institutional processes – our small-c “constitutional” understanding of our responsibilities.  Nor will I address the departures of the “policy” from the Supreme Court’s reading of Title IX.  Instead, I’ll focus on big-C Constitutional values and requirements.  And I won’t discuss them in depth.  My aim is just to flag some issues and encourage you to engage, on your own as lawyers, with the legal rat king we face.

I’ll conclude with a few thoughts on the part we now ought to play as a law school — the only one at Harvard University.

SIX CONSTITUTIONAL VALUES

[1] Procedural Due Process

Wikipedia entry on Kangaroo Court: “A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as ‘a mock court in which the principles of law and justice are disregarded or perverted’.”

The Supreme Court tends to determine the process that is “due” along a sliding scale.  It weighs administrative interests and the interests of one party against whatever is at stake for the other party along with our traditions of “law and justice.” Sometimes those traditions short circuit the weighing of interests [see Fuentes v. Shevin], but most often it is the interests of the “defendant”, so to speak, that focus the analysis. [see Goldberg v. Kelly]  In the context of a SH proceeding, those interests are huge – so huge as to amount to a constitutionally protected “liberty” interest.  [See Board of Regents v. Roth]

Please compare the procedures required in Goldberg – what were at stake were welfare benefits — with the proposed SH procedures:

The Court insisted on procedures with “ancient roots.”  It emphasized the right to “an effective opportunity to defend.”  That required, inter alia, notice of the “evidence” against one, especially vital when “credibility or veracity are at issue”; oral participation in a hearing before the decision-maker; cross-examination of witnesses [see below]; an “impartial decision-maker” – who must not have participated in making a prior determination in the case.

On every one of those counts the proposed procedures are either utterly ambiguous or fall short.

Of course, the SH “complainant” also has weighty interests at stake, and they may cut, to some extent, against certain traditional protections for the “respondent.”  I’m not saying the resolution of this issue is a slam dunk.  But if you think carefully about each point, I believe you’ll conclude that, on any fair balance, removed just a notch from the politics of the moment, the proposed procedures amount to a disappointing denial of due process of law

[2] Equal Protection/ Gender Discrimination

The SH policy and procedures are gender-neutral on their face.  But their probable effect and the proclaimed purpose behind them are not.  Hence, they discriminate by gender and must be subjected to “exacting” scrutiny under long-established Equal Protection norms.  [See Personnel Administrator v. Feeney]  It is no less well established that gender discrimination “against” men must be subjected to no less “exacting” scrutiny than gender-discrimination “against” women.  [See Craig v. Boren]

To assess the gender discrimination worked by the proposed procedures before us, compare them with [a] those followed by other institutions in comparable contexts and [b] those followed by HLS in comparable contexts [eg, plagiarism] and in similar contexts in the past.  And, most important, compare [c] the procedural opportunities provided “complainants” with those provided “respondents”.

Among the provisions to be evaluated in this light should be the lower standard of proof, the “complainant’s” opportunity to remain anonymous, the truncated role of the Ad Board and the faculty, the limited opportunity for appeal and the stunning finality of the Final Report.

As we all know, the gender bias of the proposed procedures is justified as necessary to make up for a contrary gender bias embedded in our culture and practices – a sort of affirmative action argument, though having to do with the distribution of punishments rather than benefits.

That similarity and that difference ought to invite your further scrutiny.

[3] Confrontation

In the context of terminating welfare benefits, the Goldberg Court said of the opportunity to confront witnesses, especially one’s accuser: “While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.”

Under the proposed SH procedures, the “respondent” is denied any such opportunity!  [Indeed, it’s possible that the “complainant” may remain anonymous!]`

Can it be that the Investigating Team, conducting individual

Interviews, is so reliable that we should dispense with this vital feature of adversary procedure?  Will they be so effectively “trained” as to guarantee their reliability?  And what does that mean?  I had thought a faculty full of lawyers was “trained” in a relevant respect.  Can we be sure that the special SH “training” of those to whom we’re being asked to give up most of our responsibility won’t be … ideologically biased?

Or is this extraordinary feature of the proposed procedures driven by an extraordinary claim: the weakness/victimization of “complainants”?  Most of them?  Do we really believe that of our female students?  Could it justify potential ruination of our male students’ lives?  Do we have no “space” to resist and revise that?

[4] Coerced Self-Incrimination

Under the proposed procedures, when the Investigative Team notifies the “respondent” of the allegations against him, he has a week to submit a written “response”.  Then, the Team will “request” separate “individual interviews” with him and the “complainant” and possibly with witnesses.  They will also “request” separate a “follow-up interviews” with both the principal parties. They will then make their findings of fact and law, giving the parties a week to respond to it in writing.  Then, they complete their Final Report.

Because many [or most] cases will be “she said/he said” disputes, he’ll know that he is in dire peril if he declines the “request” to respond.  If the Team has only the “she said”, and a refusal to offer any ‘he said”, they probably will — the proposed procedures include no equivalent of the Griffin safeguards — count the latter against him.  He will feel under terrific pressure — time pressure added to the prospect of punishment up to expulsion — to provide some “he said”… which may wind up dooming him, at least, to those very punishments.  Long ago, in a situation involving discharge from office, the Supreme Court held that this kind of pressure, outside the criminal process, amounts to “coercion”.  [See Garrity v. New Jersey]

This is, of course, the same kind coercion employed by Joe McCarthy and General Electric to force GE workers to speak in the 1950’s.

The proposed SH procedures do touch on the possibility of formal “incrimination” resulting from such “coercion”.  The Final Report and/or evidence gathered by the Team may very well find its way to a DA.  What the University’s proposed procedures say about this prospect is interesting.

Twice, the University says that [a] “when the allegations, if true, might constitute criminal conduct [b] the respondent “is hereby advised to seek legal counsel before making written or oral statements”.  The key words are “might” and “hereby.”  The latter makes it clear that the “trained’ Officers and Investigators will not offer him – he is as much our student as she is – any such advice.  [Why not?]  And that makes it clear that he — especially during the week that he has to respond after first receiving the allegation – will be at sea and quite probably unable to figure out the former and lack time to find counsel anyway.

There is one other relevant provision.  There, the University says that, if an allegation “includes behavior or actions that are under review by law-enforcement authorities,” the Team may go ahead and impose “interim measures” [eg, suspension] but will “assess and reassess the timing” of its investigation “so that it does not compromise the criminal investigation.”  Is this reassuring, from our lawyer’s point of view?  The key word may be “are.”  Isn’t the real problem that the Team’s interviews and Final Report may play into – and distort — a later criminal investigation?  Why is nothing said about that?

[5] Free Speech

The University’s definition of “sexual harassment” includes “verbal” and “graphic” conduct “of a sexual nature” that is “unwelcome” – which it defines, inter alia, as “undesirable or offensive”.   [It need not be “persistent or pervasive” creating a “hostile environment”.  That goes beyond the reach of Title VII.  Is there precedent for it? ]

Anyone who knows anything about First Amendment law knows that this text flies flagrantly in the face of established general free speech norms.

It must be that the University hopes to operate in a special “domain” where such norms may be overridden.  [See Post, Citizens Divided]   But the extent of the overriding cannot be unlimited.  It must, presumably, be tailored to good reasons for setting up the special “domain” in the first place.  And those who “manage” it should exercise wise “discretion” in deciding how far to go in suppressing speech.

How different, in relevant respect, is a college setting from a high school setting – and a graduate school from a college setting?  What sorts and degrees of harassment have been common [how common?] in each type of school? In the whole USA?  In each individual school?  To what degree, for instance, has “unwelcome” verbal conduct, absent a hostile environment, been a problem?

Did the University drafters care?  Our law school committee?

Our committee does offer a sort of proviso.  “The policies and procedures,” it says, “uphold traditions of … uncensored debate on matters of public concern.  They effect no compromise of freedom of thought, inquiry, or debate.  Rather, they seek to ensure an environment in which education [etc] … are not corrupted by sexual and gender based harassment.  Nothing in them shall be construed to abridge … principles of free speech’.

What will that be taken to mean?  Its contrast – particularly, the contrast of the fourth sentence — with the definition of [non-environmental] “verbal harassment” is stark, to put it politely.  Most probably, it will simply put off debate to each individual case.  Is that the best we can do? … Oh, I forgot that since the Team’s Final Report is Final, we, the faculty, will not be allowed to engage in such debate …

How different is all this from the old “speech codes” which bit the dust under “principles of free speech”?  [See also RAV v. St. Paul]

[6] Academic Freedom/Free Association

Several colleagues signed a brief arguing that the Solomon Amendment – pressuring us to allow military recruiters on our campus – violated principles of free association and academic freedom.  Their argument failed.  [It was, I believe, extremely weak since the Amendment’s impact on those values was too small.]  [See Rumsfeld v. FAIR]  We should look forward to hearing from those colleagues now.

Later, I’ll touch [below] on the government’s “conscription” of private schools of higher education to adopt and administer prescribed policies and procedures.  This intrusion is plainly far broader and far deeper than any effected by the Solomon Amendment.

What’s more: enforcement of OCR’s directives will involve official investigations of these schools – like the one now targeting HLS.  The investigations, in turn, will scoop up emails and memos by and to faculty members – like this one! – debating general matters, taking positions that may be unpopular, even “incorrect.”  Thus they will invade “the intellectual life of a university” and do “grave harm”.  [See Sweezy v. New Hampshire]

Again, our committee applies its wan proviso to “academic freedom.”  [See above]

CONSTITUTIONAL REQUIREMENTS?

So far, I’ve addressed constitutional “values” – which should carry great weight in a law faculty.  Now: Is HLS, as a private school, subject to constitutional “requirements” vindicating those “values”?

Throughout the country, male students at private universities – most recently, Brandeis — are filing lawsuits challenging SH policies and procedures on grounds, inter alia, of gender discrimination and denial of due process.  More and more and more are on the way – coming our way.

I’ve been asked: Where is the “state [ie, federal government] action”?   In my view, this is no problem.

Since the 1970’s, “state action” issues have tended to break into three parts.  [a] Who “initiated” the “action” in question?  Typically, it has been a private party – which sets up the issue of how to tie it to the state.  But in this case it is the federal government itself that initiated the SH policy and procedures!

[b] How “specifically” has governmental power been used to effectuate the challenged aspects of the “action” in question?  Has government participation been “focused” specifically on those aspects?  In our case, the government has indeed specifically prescribed many of the features of the SH policies and procedures [eg, the preponderance standard] that are being challenged.  To be sure, the University and HLS seem to want to add further features which are probably unconstitutional.  But they have simply been elaborating on federal instructions.  As quiet collaborators?

[c] … Or in fear of threatened federal penalties? This goes to the third issue: how much governmental power – intruding into the private institution – has been applied? In Harvard’s case, the threatened penalties are massive.  And the federal intrusion is astonishing – to borrow a term from the law of federalism, the government proposes to “commandeer” not just the internal policymaking process, but also the internal disciplinary process, of private colleges and universities.

[In April 2014, Justice Kennedy’s plurality opinion in Schuette interpreted past “state action” decisions even more broadly – so that governmental “encouragement” or “authorization”, rather than enforcement,” may suffice.]

Try to imagine a more blatant instance of “state action” than the one before us …

The upshot:  We will be sued.  We probably will lose.  [Our SH procedures and policies will go the way of the “speech codes” of yesteryear.]  We deserve to lose.  Much worse, we are actually inviting this constitutional condemnation!

WHAT PART SHOULD HLS NOW PLAY?

Resistance.

Harvard Law School’s history is full of stories of resistance –resistance by faculty members to the “authorities” in the name of legal values, often values of civil liberty.  Some are about challenges to the dean.  Think of Frankfurter and Pound.  Or Byse and Griswold.  As often, the stories – the ones that last – are about challenges to the University governing boards and President.  Think of Frankfurter or Chaffee or Howe or Dershowitz.  “The Trial at the Harvard Club.”

My point doesn’t have to do with the details or even the truth of the stories.  Instead, it has to do with their staying power, their power to make many faculty members and alumni a bit proud to be associated with the School.  These are the stories we are likely to tell when recruiting new students – not the ones about our passivity, our helpful rule-following.  Not the ones where we act as obedient “employees” of the Central Administration rather than tenured “officers” of the University.  Not the ones where we abandon our tradition of institutional autonomy.  And not the ones where we show we don’t take seriously – because we don’t act on – the values we pretend to take seriously in our classes.

There is one story in particular that we might profit from now.  It has to do with a concerted effort by the federal government to reach inside colleges and universities in order to correct a pathology believed to fester there.  It was an effort that involved conscription of Harvard University officials, who then commandeered its processes and pressured the schools to fall in line.

It was, of course, in the early 1950’s.  The pathology was the supposed “communist infiltration of education.”  Instead of the Education Department, it was the FBI that was the point of the federal spear.  The officials conscripted included both President Pusey and McGeorge Bundy, dean of the college.  The appointments process was commandeered, going so far as to throw out lowly lecturers.  [See Sigmund Diamond, Compromised Campus]  The intrusion extended into the Law School – resulting, most notoriously, in the removal from the law review of a student who said he’d refuse to answer certain questions about his political activity.

The dean was Erwin Griswold.  His actual behavior in the circumstance is not entirely clear.  In fact, it appears that in the law review affair he played the good soldier.  But shortly thereafter he went to Worcester and gave the first of a series of 1954 speeches explaining and justifying the exercise of rights under the Fifth Amendment.  In 1955, he published them as The Fifth Amendment Today.  It made his national reputation.  Google him: he became a man of “courage,” “a champion of individual liberty.”  Upon his death, HLS issued a statement recalling him as “a foe of McCarthyism”.  [Print the legend.]  Imagine if he had done more!

My point, again, isn’t to equate the SH policy and procedures with McCarthyism.  It is, instead, to speak to our sense of self-respect, our integrity as a law school.

If you agree with some of what we critics have to say about the proposed SH policy and procedures, please be aware that we can resist.  We ought to.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Categories
Campus Sexual Assault Sexual Harassment

Colleges are Facing Skyrocketing Insurance Premiums, Partly Due to Flawed Sexual Assault Proceedings

Colleges are Facing Skyrocketing Insurance Premiums, Partly Due to Flawed Sexual Assault Proceedings

Minding the Campus

May 9, 2021

There is a growing line of cases in which colleges have been held liable for running defective campus sexual assault discipline proceedings. More than 500 such cases have been brought nationally. As often happens, the plaintiffs lost most of the early cases. In more recent years, however, the cases have noticeably trended against the college defendants….

According to a 2017 story, “[a] five-year study conducted by United Educators found that the average lawsuit filed against colleges by alleged sexual assault perpetrators costs $187,000.”  I expect this number has increased substantially since 2017 as more cases have survived early motions to dismiss, which is the point at which defense costs rise significantly.

A college president responded to one of my earlier emails with a link to a story that appeared last month in the Chronicle of Higher Education. I take no joy in being right in my prediction about skyrocketing insurance premiums. (For the record, I first made this prediction in late 2018.)

The good news is that colleges, to a large extent, can reduce their litigation exposure. I predicted several years ago that Educators United would start offering advice to colleges on how to reduce their litigation risk in much the same way workers compensation insurers have done for decades. I also predicted they would start to use differential pricing to reflect the differing risk profiles. If college A adopts risk mitigation strategies and college B doesn’t, then college A would receive a lower premium.

To take a not-unrealistic example: We can identify, based on a growing line of court cases, certain red flags that increase the risk of adverse outcomes if a college is sued over its sexual assault discipline procedures. These include the use of a single investigator model; inadequate notice of the allegations; not allowing the accused to see evidence, to be represented by counsel, or to call witnesses; not allowing cross examination of witnesses, etc. Considering the recent premium increases, I expect we will see insurance carriers be more proactive in encouraging colleges to reduce their risk profiles.

Colleges face an increasingly complex and unpredictable array of challenges—abuse, harassment, assault, police misconduct, accidents, health and environmental hazards, fiduciary wrongdoing, the pandemic—that are making it more difficult to calculate risk and insure against it.

That’s a big part of why annual insurance premiums have gone up by double digits in recent years. John McLaughlin, senior managing director of the higher-education practice at Gallagher, an insurance brokerage and risk-management and consulting firm, says those increases range between an average of 10 and 35 percent across an institution’s insurance portfolio.

Excerpted from: https://www.mindingthecampus.org/2021/05/09/field-notes-on-recent-trends-in-higher-ed-litigation/ 

Categories
Campus False Allegations Sexual Assault Sexual Harassment Title IX Wrongful Convictions

PR: 40-50% of Campus Sexual Assault Allegations Are Unfounded, Revealing Need for Strong Protections of the Innocent

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

40-50% of Campus Sexual Assault Allegations Are Unfounded, Revealing Need for Strong Protections of the Innocent

WASHINGTON / May 11, 2021 – Analyses of sexual assault allegations at colleges and universities reveal 40-50% are unfounded. Black male students are at especially high risk of being wrongfully accused of sexual misconduct. SAVE urges universities to maintain and strengthen due process protections to assure a reliable determination in campus proceedings.

An early study by Eugene Kanin reported that the police department in a Midwestern city concluded that 41% of 109 rape allegations were false. Kanin then did a follow-up study at two large colleges, concluding that 50% of campus rape complaints were untrue (1).

More recently, Brett Sokolow confirmed, “Probably 40 or 50% of allegations of sexual assault are baseless. There are a lot of cases where someone says they were incapacitated, but the evidence doesn’t support that they weren’t able to make a decision.” (2) Sokolow is the head of the Association of Title IX Administrators (ATIXA), and is regarded as a national expert on sexual assault in the campus setting.

Black male students are at especially high risk of being wrongfully accused of sexual misconduct:

  1. Title IX For All analyzed demographic data from 650 lawsuits filed against colleges. Among the 30% of cases in which the race of the accused student was known, black students are four times as likely as white students to file lawsuits alleging their rights were violated in Title IX disciplinary proceedings (3).
  2. During a 2015 Senate hearing, Harvard Law Professor Janet Halley observed that, “male students of color are accused and punished at ‘unreasonably high rates’ in campus sexual misconduct investigations.” (4)

Colgate University has revealed that black male students represented 50% of all sexual violations reported to the institution, even though black students represent only 4% of all undergraduate students (5). SAVE has compiled numerous case studies of Black students who were wrongfully accused (6).

Activist David Lisak has claimed that only 6% of campus allegations are “false.” (7) But Lisak did not consider the many other reasons why an allegation can be determined to be “unfounded.” Air Force judge advocate Reggie Yager reveals that about 45% of the cases Lisak reviewed did not proceed because there was insufficient evidence, the complainant withdrew from the process, the accuser couldn’t identify the perpetrator, or the allegation did not rise to the level of a sexual assault (8).

In the past, sexual assault activists stated that unfounded accusations were rare. In her book, Against Our Will: Men, Women, and Rape, Susan Brownmiller asserted that only 2% of sexual assault cases are false (9). This claim was refuted when it was revealed that her statistic was based on a casual comment made by a judge at a bar association meeting (10). Legal scholar Michelle Anderson likewise reported, “no study has ever been published which sets forth an evidentiary basis for the two percent false rape complaint thesis.” (11)

To reduce the risk of wrongful determinations of campus sexual assault, SAVE calls on college officials to assure impartial investigations, fair adjudications, and the presumption of innocence.

Citations:

  1. https://www.aals.org/wp-content/uploads/2015/06/Bowen-Kanin-False-Rape-Empirical.pdf
  2. https://www.thecentersquare.com/national/legal-experts-say-bidens-pushing-ahead-to-the-obama-past-on-campus-rape-could-be/article_184d1e3a-3fc0-11eb-956d-87947675f52c.html
  3. https://www.titleixforall.com/wp-content/uploads/2020/07/Plaintiff-Demographics-by-Race-and-Sex-Title-IX-Lawsuits-2020-7-6.pdf
  4. https://www.govinfo.gov/content/pkg/CHRG-114shrg95801/pdf/CHRG-114shrg95801.pdf
  5. https://reason.com/2017/09/14/we-need-to-talk-about-black-students-bei/
  6. https://www.saveservices.org/sexual-assault/complaints-and-lawsuits/
  7. https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2016/03/12193336/Lisak-False-Allegations-16-VAW-1318-2010.pdf
  8. https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/
  9. https://www.amazon.com/Against-Our-Will-Women-Rape/dp/0449908208/ref=sr_1_1?dchild=1&keywords=against+our+will&qid=1620224838&sr=8-1
  10. https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2216&context=llr
  11. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=555884
Categories
Campus Sexual Assault Sexual Harassment Title IX

How Will Title IX Policies Affect Autistic Students?

How Will Title IX Policies Affect Autistic Students?

By David Golub

May 9, 2021

Dating and relationships can be a challenging aspect for life for many people, but this is especially true for those who are on the autism spectrum.  In addition to the uncertainties that all people face, autistic individuals must confront certain additional questions: Will anyone want to date an unusual person like myself?  How will the physical aspects of a romantic relationship interplay with my sensory integration issues, and will my partner be understanding of any special needs that I may have?  Will she still love me when she learns that I’m autistic?

When the Department of Education’s 2011 “Dear Colleague” letter interpreted Title IX to require that schools investigate and adjudicate allegations of sexual assault, many expressed concern that innocent men had been placed at greater risk of being punished for crimes that they did not commit.  For those of us concerned with issues relating to autism, this begs the question of whether autistic students are disproportionately affected.  While no research has yet been done on this question, there is nonetheless good reason to believe that autistic students are at greater risk than their neurotypical counterparts.

There is one case documented in the press where an autistic student was punished inappropriately.[1]  In 2015, Brian Ferguson, then a student at Navarro College in Texas, saw a woman whom he mistakenly believed to be his friend, even though she was in fact a stranger.  He hugged her and kissed the top of her head.  The school treated this as a sexual assault and kicked him out.

Those unfamiliar with autism will likely not recognize what appears to have happened in this case.  Many autistic people have a neurological deficit known as prosopagnosia in which a person’s ability to recognize and remember the faces of others is severely impaired or, in the most extreme cases, completely missing.  It is not the fault of a person with prosopagnosia if they fail to recognize someone or mistakenly believe that a stranger is someone that they know.  This case should have been treated as an innocent misunderstanding, not as a violent crime.  The school’s failure to do so had the effect of discriminating against Ferguson on the basis of his disability.

There is also good reason for concern that the affirmative consent policies used by many academic institutions may have a disparate impact on autistic students.  Under these policies, both parties must explicitly express their consent prior to any sexual act in order for it to not be held to constitute sexual assault.  While the exact definition of affirmative consent may vary from institution to institution, many policies require that consent must be “enthusiastic”[2][3] in order to be valid or contain provisions that a verbal “yes” does not constitute valid consent if it is contradicted by nonverbal cues.[4]  While supporters of affirmative consent often call it “Yes Means Yes,” this label is highly misleading as “yes” may actually mean “no” if the nonverbal communication does not match.  Sexual consent educator Jaclyn Friedman asserts that “men (and women!) are perfectly capable of understanding social cues, even ones where someone is saying ‘no’ without using that actual word.”[5]

The problem is that this claim simply does not hold for many people on the autism spectrum.  Autistic individuals often have impairments in various forms of nonverbal communication such as facial expressions, tone of voice, and body language.  The semantic and pragmatic aspects of language, sometimes known more informally as “reading between the lines,” are also often an area of challenge.  As such, if a woman says “yes” but signals nonverbally or through the context that she really means “no,” an autistic man may not be able to tell the difference and may genuinely believe that he has consent.  To treat him as guilty of sexual assault in such cases is an injustice.

In seeking to ensure that autistic students are treated fairly under Title IX, it is important to recognize that not all people on the autism spectrum are diagnosed.  While the stereotypical image of autism is a child with a severe developmental disability, often one who is unable to talk, many autistic people are high-functioning and do not receive a diagnosis until adulthood, sometimes many years or even decades into adulthood.[6]

Prosopagnosia, the face recognition deficit discussed above, is not unique to autistic people.  Research has found that as many as 1 in 50 people are born with this deficit, and the overwhelming majority remain undiagnosed.[7]  As such, if we wish to ensure that people with these disabilities are not thrown under the bus, relying on special treatment on the basis of a diagnosis simply won’t cut it.  Our Title IX policies that are used across the board should be designed in a way that won’t subject individuals to being treated as criminals on account of autistic traits.

The Department of Education has initiated a rulemaking process to modify the regulations promulgated under the prior administration.  These regulations substantially improved due process protections, and it is feared that that the changes will bring back many of the unfair policies that were in use under “Dear Colleague” letter.  If so, these changes would be to the detriment of autistic students.

If we are serious about ensuring that all students have equal opportunity to learn, then the needs of autistic students must be taken into account.  This will be best accomplished by further strengthening due process protections.  Schools should be prohibited from using the affirmative consent standard, and they should be required to use a definition of sexual assault that is narrow enough to distinguish between a violent crime and an innocent mistake.  Returning to the failed policies of the past would be a huge step backward.

Citations:

[1] https://www.nbcdfw.com/news/local/student-with-autism-kicked-out-of-college/2101622/

[2] https://uhs.berkeley.edu/sites/default/files/hp-consentdiscussionguide.pdf

[3] https://health.columbia.edu/content/consent

[4] https://www.wcsu.edu/womenscenter/definition/got-consent/

[5] https://www.vox.com/first-person/2018/1/19/16907246/sexual-consent-educator-aziz-ansari

[6] https://www.cnn.com/2008/HEALTH/conditions/03/28/autism.essay/index.html

[7] https://news.harvard.edu/gazette/story/2006/06/face-blindness-disorder-may-not-be-so-rare/

Categories
Sexual Assault Title IX

One-Third of Sexual Assault Allegations in Criminal Setting Are Unfounded

One-Third of Sexual Assault Allegations in Criminal Setting Are Unfounded

SAVE

May 7, 2021

Sexual assault activists often make the claim that false allegations of sexual assault are rare.

In her feminist classic, Against Our Will: Men, Women, and Rape, Susan Brownmiller claimed that only 2% of sexual assault cases are false (1). This claim was refuted when it was revealed that her statistic was based on a casual comment made by a judge at a bar association meeting (2). Legal scholar Michelle Anderson likewise reported, “no study has ever been published which sets forth an evidentiary basis for the two percent false rape complaint thesis.” (3)

Expanding on the Brownmiller claim, David Lisak and colleagues asserted, “the prevalence of false allegations is between 2% and 10%.” (4). Activist Jessica Valenti likewise avowed that “Only 2 to 10 percent of rape accusations are shown to be false.” (5). The National Sexual Violence Resource Center states on its website, “A review of research finds that the prevalence of false reporting is between 2 percent and 10 percent.” (6)

Unfortunately, discussions of this important topic have been fraught with overt bias, conjecture, and definitional imprecision.

The Department of Justice defines “rape” as: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” (7) But discussions on this topic often conflate “rape” with the much broader and often ill-defined term, “sexual assault.”

Equally important is the definition of “unfounded.” The FBI Uniform Crime Reports stipulate that “unfounded” applies when “a complaint that is determined through investigation to be false or baseless. In other words, no crime occurred.” (8)

Definitional difficulties arise from use of the term “false” allegation, which implies an intentional attempt to deceive. Conflating the word “victim” with “complainant,” Lisak et al provide this example (4):

For example, if a victim reports to the police that she was raped while she was intoxicated, and truthfully states that she cannot clearly recall whether there was penetration, investigators might classify such a case as “baseless/unfounded.” This classification is clearly distinct from a case in which a victim deliberately fabricates an account of being raped, yet the “unfounded” category is very often equated with the category of “false allegation.”

Determining whether an allegation is “false” requires a thorough investigation that entails repeated interviews of the complainant, and an assessment of complainant credibility, corroborating evidence, and plausibility of the fact pattern. Thus, an assessment of the falsity of an allegation entails a higher level of subjectivity. Using this more fluid definition, Lisak’s 2010 study concluded that only 5.9% of 136 reported sexual assaults at an American university were false.

Following are the reports that used more traditional assessment methods, arranged in chronological order:

  1. Kanin: A 1994 study by Eugene Kanin, using data from an unidentified Midwestern city, reported that the police department concluded that 41% of 109 rape allegations were false. Unfortunately, Kanin provided limited information about the police department’s methods for classifying cases. Kanin then did a follow-up study at two large Midwestern colleges, concluding that 50% of rape complaints were untrue (9).
  2. Neufeld and Scheck: In 1996, Innocence Project founders Peter Neufeld and Barry Scheck revealed: “FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive (usually insufficient high molecular weight DNA to do testing), about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect.” Depending on how one classifies the “inconclusive” DNA results, 20-40% of all sexual assault cases were determined to be unfounded. (10)
  3. Baughman: A 2016 study conducted at a police department in a southeastern state concluded that 25% of the 351 allegations were “unfounded,” with another 54% classified as uncertain. Only 21% of the cases were “Cleared by Arrest,” meaning the police forwarded the case for possible prosecution (11).
  4. Department of Defense: The DOD Sexual Assault Prevention and Response Office analyzed sexual assault allegations in the military and found a steady increase in the percentage of cases deemed to be “unfounded” or with “insufficient evidence of any offense to prosecute.” In 2018, the percentage of such cases was 28% out of 2,854 reported cases (12).
  5. Sokolow: Brett Sokolow is the head of the Association of Title IX Administrators (ATIXA) and is regarded as a national expert on sexual assault in the campus setting. In a 2020 interview, Sokolow stated, “Probably 40 or 50% of allegations of sexual assault are baseless. There are a lot of cases where someone says they were incapacitated, but the evidence doesn’t support that they weren’t able to make a decision.” (13)

Despite differing populations, assessment methods (police investigation versus DNA analysis), and geographical scope (national versus local), none of these five analyses remotely confirm the often-voiced claim that only 2-10% of rape accusations are “false.”

Based on the findings of these five analyses, we conclude that approximately one in three sexual assault allegations are unfounded. The one-in-three conclusion is consistent with an earlier review in which commentator Wendy McElroy affirmed, “False accusations are not rare. They are common.” (14)

In two populations, the percentage of unfounded allegations has been found to be higher than the one-in-three number:

  • College Students: As indicated by the Sokolow 40-50% statement, unfounded allegations appear to be more commonplace on college campuses than in the criminal system. This is a result of colleges’ broader definitions, amorphous procedures, and ease with which allegations can be made.
  • Black Men: The National Registry of Exonerations found that “a black prisoner serving time for sexual assault is three-and-a-half times more likely to be innocent than a white sexual assault convict.” (15) Professor Matthew Johnson furthermore reveals, “This increased risk of wrongful conviction is most pronounced in Black defendant/White victim cases, where the prevailing sense of moral violation is commonly heightened among the largely White public.” (16)

In cases of unfounded allegations, the true “victim” is the person falsely accused, not the complainant. SAVE recommends that investigators focus on assessments of the prevalence of sexual assault complaints that are “unfounded,” not “false.” SAVE urges that research on this important topic be informed by precise definitions, well-specified methodologies, and logically supported conclusions.

Citations:

  1. Susan Brownmiller (1975). Against Our Will: Men, Women and Rape. Fawcett Books. https://www.amazon.com/Against-Our-Will-Women-Rape/dp/0449908208/ref=sr_1_1?dchild=1&keywords=against+our+will&qid=1620224838&sr=8-1
  2. Edward Greer (2000). The Truth behind Legal Dominance Feminism’s Two Percent False Rape Claim Figure, 33 Loy. L.A. L. Rev. 947. https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2216&context=llr 
  3. Michelle Anderson (2004). The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=555884
  4. David Lisak, Lori Gardiner, Sarah Nicksa, Ashley Cote (2010). False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases. Violence Against Women. 16 (12): 1318–1334. https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2016/03/12193336/Lisak-False-Allegations-16-VAW-1318-2010.pdf
  5. Jessica Valenti (September 8, 2017). Oh Look, Betsy DeVos Is Here to Protect Your Accused Rapist. Marie Claire, (https://www.marieclaire.com/politics/a29293/betsy-devos-rape-victim-rights-announcement/
  6. National Sexual Violence Resource Center (No date). False Reporting. https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf
  7. Department of Justice (2012). An Updated Definition of Rape. https://www.justice.gov/archives/opa/blog/updated-definition-rape
  8. Federal Bureau of Investigation (2004). Uniform crime reporting handbook. Washington, DC: U.S. Department of Justice. https://ucr.fbi.gov/additional-ucr-publications/ucr_handbook.pdf/
  9. J. Kanin (1994). False rape allegations. Archives of Sexual Behavior, 23, 81-87. https://www.aals.org/wp-content/uploads/2015/06/Bowen-Kanin-False-Rape-Empirical.pdf
  10. Quoted in Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen (1996). Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. Department of Justice. https://www.ncjrs.gov/txtfiles/dnaevid.txt
  11. Benjamin Baughman (2016). A Study of Rape Investigation Files Involving Female Survivors: A Comparison of Allegations Deemed False and Genuine. Table 3.1. http://eprints.hud.ac.uk/id/eprint/27856/
  12. Center for Military Readiness (2019). DoD Annual Reports Show Significant Increases in Sexual Assault Accusations Deemed “Unfounded.” https://www.cmrlink.org/data/sites/85/CMRDocuments/SAPROAnalysis-Unfounded_082719.pdf Also see discussion here: https://www.cmrlink.org/issues/full/unfounded-sex-assault-charges-trending-up-in-dod-reports
  13. Richard Bernstein (December 16, 2020). Legal experts say Biden’s pushing ahead to the Obama past on campus rape could be a mistake. The Center Square. https://www.thecentersquare.com/national/legal-experts-say-bidens-pushing-ahead-to-the-obama-past-on-campus-rape-could-be/article_184d1e3a-3fc0-11eb-956d-87947675f52c.html
  14. Wendy McElroy (2006). False Rape Accusations May Be More Common Than Thought. Independent Institute. https://www.independent.org/news/article.asp?id=1719
  15. Samuel Gross, Maurice Possley, Klara Stephens (2017). Race and Wrongful Convictions in the United States. Page iii. https://www.law.umich.edu/special/exoneration/Documents/Race_and_Wrongful_Convictions.pdf
  16. Matthew Johnson (2020). Wrongful Conviction in Sexual Assault. Oxford University Press. Page 102. https://global.oup.com/academic/product/wrongful-conviction-in-sexual-assault-9780190653057?cc=us&lang=en&
Categories
Campus Sexual Assault Sexual Harassment Title IX

Removing or Weakening the Presumption of Innocence in Title IX Proceedings Would Institutionalize ‘Cancel Culture’

Removing or Weakening the Presumption of Innocence in Title IX Proceedings Would Institutionalize ‘Cancel Culture’

Raul Jauregui, Esq.

May 5, 2021

The presumption of innocence, currently enshrined in US law when we face an accusation, makes it fair for everyone because we can state our defense.  This includes any victims, be they man or woman.  In the case of the “DeVos Title IX rules” (Rules), that fairness currently means that when a woman accuses a man of sexual misconduct, and then the man turns around and tells the school “not so, it was actually she who did to my body things I did not permit,” both the woman and the man stand on equal footing to prove their story.  Under the Rules both man and woman can investigate, evaluate, and tell their side of the story because they are both presumed innocent.  That is precious.

But President Biden’s possible rollback of the Rules seeks to take away from all students, be they man or woman, black or white, gay or straight, that precious fairness by assuming guilt according to who accused whom first, that is, by writing “cancel culture” into the law.  That is wrong.  Cancel culture is a private act: People can stop talking to each other in protest all they want, but we cannot pass a law that prevents anyone to tell their side of the story to a school.  Incorporating cancel culture into the Title IX rules by assuming guilt formally silences only one side.  If we do that we engage in discrimination.

I present this fictional scenario, based on my experiences as a Title IX lawyer. to illustrate the risk that cancel culture’s institutionalization of the assumption of guilt would pose for educational fairness:

Because of a sordid history of childhood sexual abuse, Carmela Otolumbi, suffers from Dissociative Identity Disorder (DID) (1) and still got admitted to Seaside State University.  But her school’s Title IX staff and classmates do not know she has DID—they only see “Carmela” the 19 year old overachiever, not her DID twin, “Carmela2.0” the 19 year old cruel punisher.  So when Carmela2.0 accuses Pedro Juarez, another student at Seaside, of sexual assault, everyone believes her and Pedro ends up back home, angry, and suspended.  Classic for DID patients, Carmela, the overachiever, suddenly thrives in the attention she receives from everyone.  DID overachievers, after all, deserve what Carmela now has and did not get as a child: #survivor status, special school funding, secure housing of her choice, and the respect of all the women on campus. #respect. Pedro, meanwhile, has gone from pre-med student to car washer.  His life is over. Carmela starts public speaking about her assault experience, about her #seasiderapist (she baptizes him that, hashtag and all), and about how she experiences daily triggers that re-traumatize her, particularly because Pedro remains active on social media.

Carmela2.0, the cruel punisher one, in a classic DID way, cannot stand Pedro’s Insta photos in Cancun.  So she takes her rage to Tiktok and starts a campaign to cancel Pedro. #whodidyourapeinCancun?  Carmela2.0 goes nuclear in her attempt to expel Pedro from Seaside and to, while she is at it, get everyone at Seaside State fired.  #Seasideenoughrape. Carmela2.0, in a DID attack, starts on-line fund raising, publishes her sad fiction on Medium, receives over $10,540.00 for her legal fund, has a rally which she live streams on Instagram, blogs, and makes TikTok cameos.  She’s #woke. Carmela 2.0 does everything she can to cancel Pedro.  And she expects Title IX to do the same: Carmela2.0, as any DID punisher would, demands that everyone believe her word that Pedro is guilty and that this is #theT9law to protect a #TitleIXsurvivor.  Of course, Carmela2.0 never shares as part of her cancel campaign, that Pedro says she raped him, or that she suffers from DID.  Cancel culture is so powerful, though, that Carmela2.0 grins from ear to ear as her followers on Insta explode, #ally and as more and more students at Seaside call out the culture of tolerance that led to her “exploitation” and sign on-line petitions to expel Pedro #expelCarmela’srapist, and to fire everyone in Seaside’s staff.  Why not?!  I mean, #metoo.

Both Carmelas have now cancelled Pedro’s life at Seaside State.  On line, both Carmelas have done away with Pedro’s presumption of innocence.  Because #Seasiderapist brings up Pedro’s Cancun photos, Google tags him, so he moves to a secret home.  Pedro has been found guilty and convicted on social media.  All his friends block him on Insta.  His Tweeter feed is overwhelmed with slurs.  Year-long Snaps with ex friends suddenly end.  Pedro’s Seaside roommate and best witness also drops out of every single chat group and snap because cancel culture makes him the #Seasiderapist #enabler—he, the kid studying religion.  And Seaside State does nothing to cure Pedro’s on–line re-victimization even though Pedro and his girlfriend complain to Seaside State’s administrators, and to the local district attorney, that this is Carmela2.0’s conspiracy to violate their civil rights.  Twitter refuses to suspend Carmela’s @Seasiderapesurvivor.

Emboldened, both Carmelas become Title IX activists.  They blog and Tiktok as hard as they can that “their #survivor experience” demands that the Rules must be changed to assume that Pedro is guilty, and that Seaside State has not punished him enough.  This time the Carmelas start fund raising on line, to sue to change the Rules.

What Pedro, his roommate, his girlfriend, and some Seaside State employees just experienced from both the Carmelas, “cancel culture” “is a modern form of ostracism in which someone is thrust out of social or professional circles – whether it be online, on social media, or in person. (2). Cancel culture turns off the light and makes it all dark.  But most importantly, cancel culture is a private choice—akin to shopping on Amazon or not, and not a public rule—akin to you must have a driver’s license or you can’t drive. This private/public distinction is why what the Carmelas now want, to incorporate cancel culture into the Title IX rules, is unfair: It transforms cancel culture, a private, harsh remedy, into an unconstitutional governmental act.  That is absurd.  Yet, sadly, cancel culture’s most direct impact on the Title IX rollback activism can be seen on real, Carmela-like calls to eliminate the Rules’ presumption of innocence.  That is, in our example, to pass a law that takes away Pedro’s ability show the evidence, tell his story, and rescue his name from cancellation, to then regain his career, and his life.

Cancel culture’s call to stop the presumption of innocence takes away the Title IX guarantee that everyone has the right to an education that is free from sexual hostility.  Incorporating cancel culture into the Rules has many fatal flaws:  It assumes that all men are indeed guilty. (They are not).  It makes no room for mistakes, revenges, confusions and staff ineptitude. (These happen all the time).  It rushes to judgment in a way no different from the summary trials of any authoritarian dictatorship.  Cancel culture as privately applied to the virtual reality world in which students facing sexual misconduct are shamed, makes them guilty, ON THE INTERNET.  But to then take that insolence and make it law, which eliminates the precious presumption of innocence so natural to life in the US, violates our social norms.  Cancel culture takes the worst tool of authoritarianism—coercion—and, should it be incorporated into the Rules, as the Carmelas want, would use this coercion to replace one of the best attributes of our democracy—the presumption of innocence.

Even through this fiction that I just wrote out for you, in an environment limited to Carmela’s mental illness and her smart phone’s screen,  you see how cancel culture brings up the worst in us.  What Carmela has not yet grasped is that in canceling Pedro, she raped him.  What we all need to agree on is that under the Rules for Title IX Pedro, while innocent to begin with, is presumed innocent as a matter of law.  To change or weaken that guarantee in the form Rules that institutionalize “cancel culture” by rejecting the assumption of innocence, by granting complainants the power to brand their respondents “guilty” just because that’s the #staywoke thing to do, turns the United States higher education scene into a Gulag, it lets the inmates run the insane asylum, and puts everyone—including vulnerable gay students and students of color at risk.

The current Title IX regulation only barely makes the process fair for respondents of allegations of sexual misconduct.  To take away the fairness in those rules by presuming guilt makes “cancel culture,” a private remedy, the official standard for education law in the US.  That is wrong.

Footnotes:

Categories
False Allegations Sexual Assault

Review of ‘Wrongful Conviction in Sexual Assault’

Review of ‘Wrongful Conviction in Sexual Assault’

Matthew Barry Johnson, PhD

May 3, 2021

Wrongful Conviction in Sex Assault: Stranger Rape, Acquaintance Rape, and Intra-familial Child Sexual Assault (WCSA), is the product of research conducted in the past 7 years or so. I drew from my earlier work focused on interrogation and false confession, and began to study wrongful conviction stemming from eye-witness mis-identification.  I realized that an obviously large proportion of wrongful convictions occurred in rape and sexual assault cases, whether via false confession or eye-witness mis-identification.

One of my initial goals was to merely catalogue cases from across the US.  Sarah Burns’ outstanding documentary “The Central Park Five” (CP5, 2012) provided a valuable account of the wrongful convictions from the point of view of the juvenile defendants and their families. However, the Burns film suggested the CP5 wrongful convictions were the product of peculiarities of New York City in the late 1980s (see ‘Sex, Race, and Wrongful Conviction’ https://thecrimereport.org/2013/10/03/2013-10-sex-race-and-wrongful-conviction/).  I was acutely aware the CP5 prosecutions shared essential elements with the prosecution of Daryl Hunt in Winston-Salem, N. Carolina, multiple false confessions of juveniles in Chicago (The Dixmoor Five, The Englewood Four, and Ollins, Ollins, Saunders, and Bradford), the Steve Avery sexual assault conviction in Wisconsin, the Norfolk Four defendants in Virginia, and many others.

Several earlier wrongful conviction researchers suggested wrongful conviction in rape warranted attention but the issue remained largely unexamined.  Bedau & Radelet (1987) in their pre-DNA study of wrongful conviction in potentially capital cases commented, “…systematic research would certainly uncover more cases of wrongful conviction … especially for crimes of rape”.  The 1996 National Institute of Justice report on the first 28 US DNA exonerations stated, “All 28 cases profiled in the report involved some form of sexual assault”.  Unfortunately, the report included commentary suggesting the predominance of sexual assaults was merely an artifact.  In 2006, Findley & Scott, in a widely cited law review, relied on 4 cases to illustrate the phenomenon of ‘Tunnel Vision’.  Each of the four case illustrations involved stranger rape, a relatively rare crime.  Similarly, Brandon Garrett’s (2010) law review titled, “The Substance of False Confessions”, relied on a data set comprised of “mostly cases involving a rape by a stranger” without considering the likelihood the charged offense may have contributed to the flawed investigations and tragic outcomes.

As the research for my book WCSA was being formulated, it was readily apparent that the prosecution approach to classification, that is classification based on the highest charge, would be an obstacle to revealing important relationships.  Rape is sexual assault no matter that some rapes co-occur with murder.  Some prior research, employing the prosecution approach to crime classification, had asserted that murder is the most common crime associated with wrongful conviction in the US.  That finding was the result of counting rape/murders as murders.  When rape/murders are disaggregated from murders without sexual assault, the dramatic over-representation of sexual assault among US wrongful convictions is apparent.  As Garrett reported in 2011, rapes and rape/murders make up 89% of all US exonerations.

With the benefit of further disaggregation other important findings emerged.  Even though most sexual assault victims (78%) are attacked by perpetrators they knew, confirmed wrongful convictions predominately occur in stranger assaults.  Seventy-two % of the entire listing of Innocence Project exonerations (as of 2017) involved stranger rape cases, a relatively rare offense.  These findings led to the four-part ‘Stranger Rape Thesis’, elaborating the increased risk of wrongful conviction in stranger rape.  Just as disaggregating sexual assault revealed important distinctions, disaggregating stranger rape wrongful convictions exposed two different routes or paths to wrongful conviction.  Those cases with surviving capable victims were overwhelmingly linked to mis-identifications by the assault victim while those cases where the assault victim was killed, or otherwise incapable of assisting in the investigation, resulted in wrongful convictions via false confessions.

Disaggregation based on race/ethnicity contributes further clarity to processes in wrongful conviction in sexual assault.  While rape is a highly intra-ethnic crime, several researchers have noted the pronounced over-representation of innocent Black or Latino defendants wrongly convicted of raping white victims.  In Convicting the Innocent, Garrett reported 10% of rapes are inter-racial while half (49%) of rape exonerations occurred in cases with Black or Latino defendants and white victims.

While an initial goal was to catalogue wrongful convictions in sexual assault, what emerged was evidence that there was increased risk of wrongful conviction in certain types of offenses, that is stranger rapes and particularly Black defendant/white victim cases. WCSA presents the obstacles inherent to certain types of criminal investigations, and also how the reactions to certain offenses by law enforcement and the public can increase the risk of wrongful conviction.  Along the way the book discusses the role of serial sex offenders in wrongful conviction, ‘moral correction’ pressure and biases, different varieties of ‘manufactured evidence’ and the series of wrongful convictions in sexual assault referred to as ‘child sexual abuse hysteria’.

Wrongful Conviction in Sexual Assault is published by Oxford University Press, 2021.

Categories
Campus Office for Civil Rights Sexual Assault Sexual Harassment Title IX

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

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

Categories
Sexual Assault Sexual Harassment Title IX

Biden’s Enigmatic Executive Order on Sex Discrimination

Biden’s Enigmatic Executive Order on Sex Discrimination

Buddy Ullman

April 29, 2021

President Biden’s March 8th 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 16th.  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 1st, 5th, and 14th 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.

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Campus DED Sexual Assault Directive Department of Education Sexual Assault

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

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:

  1. No demonstrated improvement in the reporting of sexual assault
  2. An increase in the rate of sexual assaults
  3. Lawsuits by wrongfully accused students
  4. 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.