Category: Sexual Assault

One-Third of Wrongful Convictions Involve Police Manipulation of Evidence

Post author By Edward Bartlett
Post date January 21, 2021

One-Third of Wrongful Convictions Involve Police Manipulation of Evidence. With ‘Victim-Centered’ Investigations, It May Get Worse.

Center for Prosecutor Integrity

January 21, 2021

The National Registry of Exonerations has catalogued every exoneration in the United States since 1989. Recently the NRE published a report on the long-standing problem of police misconduct. Titled, “Government Misconduct and Convicting the Innocent,” the document is based on the review of 2,400 exonerations (1). Overall, the analysis found that 35% of the cases involved police officer misconduct and 30% implicated prosecutorial misconduct.

The document reveals that police actions that lead to a conviction of an innocent person typically involve the manipulation of evidence in order to increase the likelihood of a conviction. The manipulation of evidence by police officers falls into five categories (some cases fell into more than one category):

Witness Tampering — 13% of wrongful convictions

Procuring false testimony — Inducing a civilian witness to testify to facts the officer knows the witness did not perceive (3% of wrongful convictions)
Tainted identifications – Deliberately inducing a witness to identify a suspect during a lineup, whether the witness recognizes that suspect or not (7% of wrongful convictions)
Improper questioning of a child victim – Repeated, insistent, and suggestive questioning of a child, precluding the child from denying that he or she was a victim of sex abuse (3% of wrongful convictions)

Misconduct in Interrogations – 7% of wrongful convictions

Actual or threatened violence
Sham plea bargaining and other lies about the law
Threats to relatives and other third parties

Fabricating Evidence – 10% of wrongful convictions

Fake crimes – Making false claims as ordinary lay witnesses, saying the defendant committed a crime that never happened, often involving the planting of contraband (5% of wrongful convictions)
Forensic fraud – Presenting false evidence against the defendant, concealing/distorting true evidence that might have cleared them, or planting false evidence (3% of wrongful convictions)
Fabricated confessions – Making up confessions by the defendants that in fact did not occur (2% of wrongful convictions)

Concealing Exculpatory Evidence – 7% of wrongful convictions

Impeachment of prosecution witnesses:
- Incentives provided to testify
- Inconsistent statements
- Criminal records and histories of dishonesty
Substantive evidence of innocence:
- Forensic tests
- Alternative suspects
- Evidence that the defendant did not commit the crime

Perjury at Trial – 13% of wrongful convictions

False statements about the conduct of investigations
False statements about witness statements

Overall, there were only small differences in percentages of official misconduct for White versus Black exonerees. But for murder cases, 78% of Black exonerees, compared to 64% of White exonerees, experienced official misconduct. The misconduct disparity was even greater for drug crimes: 47% among Blacks and 22% for Whites.

As noted above, misconduct by police officers contributed to 35% of the 2,400 wrongful convictions. The NRE report reveals that virtually all of the cases consisted of actions designed to manipulate the evidence to increase the likelihood of a conviction. A majority of the cases involved the direct manipulation of evidence – fabricating and concealing evidence, and making false statements at trial. The remaining minority of cases involved the indirect manipulation of evidence by means of witness tampering and misconduct in interrogations.

What are prospects for the future?

In recent years, activists have been promoting the use of so-called “victim-centered” approaches, both in the criminal justice system and on college campuses. A recent announcement from the International Association of Chiefs of Police, for example, makes the claim that “victim-centered” approaches “can support victim recovery and engagement with the criminal justice system” and “promote enhanced victim and community safety while helping law enforcement solve and prevent crime.” (2)

Despite the feel-good aura of this gauzy description, the reality of “victim-centered” approaches is that they compromise investigative impartiality, bias evidence against the defendant, and predispose to wrongful convictions. Victim-centered methods (3):

Presume the guilt of the defendant and refer to the complainant as a “victim”
Avoid asking probing or detailed questions in order to not “retraumatize the victim.”
Reflexively attribute inconsistencies in the complainant’s statements to life-threatening trauma.
“Cherry-pick” the evidence in order to increase the likelihood of a finding of guilt.
Write the investigative report in a way to portray the sexual contact as non-consensual.

One Department of Justice report, “Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence,” went so far as to urge victim-centered investigations to hand “control of the process back to the victim” (p. 9) and even allow the complainant “to request certain investigative steps not be conducted” (p. 13). (4) The ill-considered report was later removed without explanation or notice. The original DOJ press release with the defunct link can still be seen online (5).

If we want to curb the police manipulation of evidence and ensuing wrongful convictions, we need to discourage the use of “victim-centered” approaches, and work to restore police investigations that are impartial, balanced, and fair (6).

Citations:

Campus Department of Education Sexual Assault Title IX

Title IX Has Turned Universities Into Really Terrible Sex Police

Post author By Deanna Brown
Post date January 12, 2021

By Teresa R. Manning

JANUARY 11, 2021

Title IX feminists seek to abuse the federal access law to institute policies that favor women — including inverting the presumption of innocence.

A Biden administration spells more controversy about Title IX, the federal equal access law that bans sex discrimination in schools receiving federal funds, but now used to address sexual misconduct — including allegations of criminal conduct like sexual assault and rape (variously defined). The theory is that such behaviors threaten access to education.

Democrats want to seem tough on sexual assault, of course, and Title IX is the tool, even as Joe Biden has dodged Tara Reade’s accusations that he once sexually assaulted her and has pledged to reverse former Title IX regulations put in place by President Barack Obama.

Almost every educational institution now has a Title IX office. Last year the National Association of Scholars visited a number of them, documented in a recently released report, “Dear Colleague.” It presents conversations with staff and analyses of institutional policies on discrimination and sexual harassment at six state universities.

It’s safe to say that Title IX is now unrecognizable as an equal access law in education. Instead, it is a sex monitoring and sex promotion law with the staff especially focused on (and arguably happy about) student sexual encounters gone bad, as their chance to meddle.

Office waiting areas featured pamphlets from Planned Parenthood, among others, with quotes like, “I didn’t want it to happen,” “I haven’t been hit…” and bowls of condoms with flyers explaining, “What is a flavored condom used for? If something is flavored, it’s meant to be tasted!” Partner offices include student health centers, many with counselors who explain matter-of-factly, “here, we’re all about student autonomy and pleasure, whether you’re a person with a penis or a vagina.”

Staffers who deal with Title IX are primarily comprised of females, most with degrees in women’s studies or gender-based violence. What’s more, of the 52 officials surveyed, only one had any actual courtroom experience where allegations of serious wrongdoing are routine. Yet one Title IX coordinator confirmed that most of her time is spent processing just such allegations of sexual misconduct. Unsurprisingly, students now call Title IX “the campus sex police.”

Students also say that the Title IX office violates the law in its rush to seek, find, and punish sex offenders. Accused students report that “fabricated evidence was withheld from me until the very last minute,” and that staff is trained to “presume guilt” in violation of due process basics. Some 600 students have sued their schools claiming that campus Title IX proceedings are, in essence, kangaroo courts.

To the credit of Education Secretary Betsy DeVos, she tackled this sticky wicket — not with informal guidance, as prior administrations had done, but with formal regulations according to the Administrative Procedure Act. This effort took three years and involved over 125,000 public comments. It culminated in the Title IX Final Rule, issued in May 2020, whose provisions turned out to be quite common sense and, in real courtrooms, would be every-day fare.

They require schools to presume innocence, for example, and to disclose all evidence and to allow live cross-examination through student representatives. Furthermore, if requested, these cross-examinations can take place in separate rooms so as to mitigate any trauma that face-to-face questioning might cause. Other supportive measures such as counseling, deadline extensions, and flexibility for schedules, work, and housing are required for all complainants.

Even so, Title IX feminists complained. “DeVos … is protecting attackers from being held accountable!” said one consultant. Indeed, they sued DeVos in federal court, alleging the Final Rule violated the APA, among other things. Such claims were defeated in Maryland and New York but remain pending in DC and Massachusetts.

What now? Chances are that one or both remaining courts will issue opinions on the final rule before a new administration can take any formal action. But a Biden Education Department may announce its intention to not enforce the rule, or its intention to start the rule-making process all over again to rescind it.

In any event, the reality is that Title IX practice is now a confused, even dangerous mess. It became so because some people wanted it that way.

For starters, Title IX was enacted as a civil rights law and was never intended to address crimes, especially violent ones such as rape and assault. Additionally, the words “assault” and “rape” have been re-defined at many schools to mean a sexual encounter where one party thought there was consent, but the other claims there wasn’t. Worse, 95 percent of these cases involve alcohol, according to Title IX staff, making both perceptions and memories foggy.

Many schools now have “affirmative consent” policies where explicit, verbal affirmation is to be obtained at every stage of sexual intimacy or the encounter constitutes assault, a standard repeatedly rejected by the American Bar Association. Many such incidents are about misunderstandings, not discrimination, and certainly not criminality. Yet Title IX administration has now effectively branded many students as criminals.

Second, allegations like these are a matter of state criminal law, not a federal law like Title IX, much less a matter of campus administration that varies from school to school. While far from perfect, our criminal justice system represents centuries of balancing the rights of the accused against those of the complainant and the public.

The rights contained in due process, for example, date to the Magna Carta of 1215, ensuring that even lowly subjects (now, citizens) had natural rights that even kings (now, the government) must respect. That Title IX feminists, however, felt free to sweep all this away by creating a parallel, quasi-criminal justice system on campus speaks volumes.

The real, unstated story behind Title IX is the mindset of these feminists. In essence, they’re angry at the biological females are at greater health risk from unmarried sex. Pregnancy is another possibility, of course, that obviously affects females more than males.

Title IX feminists see this reality as inherently unfair and, to their mind, it should be “fixed” by policies that favor women — including the inversion of the centuries-old presumption of innocence in cases of sexual misunderstanding. So what if a few guys get railroaded in the process? It’s a small price to pay back for millennia of imagined injustice inflicted by biological reality.

Of course, anger at reality is a truly foolish and unproductive way to go through life, and no amount of policy is ever going to satisfy or “fix” it. Let’s hope the new Title IX Rule survives and that campus Title IX offices return their focus to equal access in education instead of social engineering between the sexes. Our divided country could use it.

Teresa R. Manning, JD, is Director of the Title IX Project at the National Association of Scholars. She has taught at Scalia Law School of George Mason University, the Notre Dame Graduate School of Christendom College, and served as Deputy Assistant Secretary at the Department of Health and Human Services in the Trump Administration.

Title IX Has Turned Universities Into Really Terrible Sex Police (thefederalist.com)

Investigations Law & Justice Sexual Assault Trauma Informed

The Metastasizing Cancer of Trauma-Informed Justice

Post author By Deanna Brown
Post date January 12, 2021

Sunday 10 January 2021
by Wendy McElroy

“Trauma-informed Justice” has percolated in academia and activism for decades. It is now knocking on the door of local police departments to demand changes that could upend the basics of how people relate to law enforcement. The approach converts the police into social workers or therapists and erases the due process upon which traditional Western justice hinges. It also increases the odds of wrongful convictions.

Trauma-informed justice—sometimes called “victim-centered” justice—involves an interview methodology in which the police prioritize empathy for an accuser who is automatically considered to be a victim. Rooted in trauma-informed feminist therapy of the 1960s, the methodology is especially favored for allegations of sexual abuse, such as domestic violence, where the accusers who come forward are overwhelmingly female. The methodology was refined by Russell Strand, U.S. Military Police School, who offered the Forensic Experiential Trauma Interview (FETI) as a way to question presumed victims without making them relive an assault.

According to trauma-informed trainers, the police should conduct investigations according to three broad principles.

The accuser is automatically assumed to be a victim even before any verification process occurs; the accused is automatically assumed to be guilty based on nothing more than an allegation. This dynamic reflects a core belief of the #Metoo movement: “Believe All Women.” The leading proponent of the trauma-informed approach is the End Violence Against Women International (EVAWI) group which argues that “believing” accusers “is the starting point for a fair and thorough investigation.” If EVAWI is taken literally, however, then further investigation seems to be unnecessary. An accusation is proof of guilt is grounds for conviction. Why investigate?
Contradictions, memory gaps, and inconsistencies in an accuser’s testimony are symptoms of deep trauma and should not be seen as disprobative. A much-quoted guide to trauma-informed justice states, “Trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them or to fill gaps in memory.” The true flaw in the process is said to be the police department’s approach which depends on what is called “peripheral information”–for example, a suspect’s description and the time or place of an alleged attack. Instead, the police should focus on eliciting non-linear information from the accuser by establishing trust and interpreting her memories.
Factors that cast doubt on the allegation, such as an accuser’s history of false allegations or drug use, are not to be considered. This creates an enormous problem if the case goes to trial, of course. The Arizona Governor’s Commission to Prevent Violence Against Women issued a letter to Arizona’s criminal justice agencies to explain, “In cases that proceed to trial, defense counsel likely could impugn investigators and claim that alternative versions of the crime were ignored and/or errors were made during the investigation as a result of confirmation bias created by the ‘belief’ element of the Start By Believing campaign.”

Trauma-informed advocates abandon the ethical code of conduct spelled out by the International Association of Chiefs of Police. Article 10, Presentation of Evidence states, “The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent. He shall ascertain what constitutes evidence and shall present such evidence impartially and without malice.” By this standard, everyone and their testimonies are to be treated equally.

Trauma-informed justice destroys the due process upon which Western criminal justice rests. The central principle of due process: an accused is innocent until proven guilty either by a standard of “clear and convincing evidence” or “beyond a reasonable doubt.” There must be proof before there is guilt and, as a matter of logic if not of justice, the accuser bears the burden of proof because she is the one making an affirmative statement. Start by Believing inverts this principle and logic, eliminating Western justice in the process.

Unfortunately, the trauma-informed approach is gaining momentum with training courses for law enforcement seeming to spring up everywhere. Most are held at universities where trauma-informed procedures have dominated Title IX investigations for the last decade; these investigations address allegations of sexual misconduct on campus and a “believe the women” ideology dominates. The spread of FETI is yet another instance of social-justice policies spilling from campuses out onto Main Street.

Other factors contribute to the spread. A revolution in how law enforcement is perceived has occurred, with “Defund the Police!” being one of the loudest aspects. A righteous indignation at police brutality and immunity is fueling a rebellion against the status quo of law enforcement. Trauma-informed justice also grows because it is still grassroots; activists go directly to law enforcement agencies. This makes it largely invisible in the media and to the public from which it encounters little resistance.

This needs to change. Trauma-informed justice must be opposed on three grounds: ethically, on the science, and on practicality.

The ethical case against trauma-informed justice has been made already: it introduces systemic bias into what should be an evidence-based, honest, and impartial process; it embeds unequal treatment under the law; it increases the likelihood of false convictions. It is unfair.

The increased likelihood of false convictions needs to be stressed because the trauma and tragedy of false convictions is often ignored or diminished. This will proliferate because trauma-informed politics encourages law enforcement to become de facto advocates for an accuser and presume the guilt of an accused.

A commonly stated goal of the trauma-informed approach is to secure a “successful prosecution”, which refers to securing a conviction but makes no comment on whether the defendant may be innocent. After all, Start by Believing declares all accuseds to be immediately and automatically guilty, which obviates the need to discuss their possible innocence. When the police pre-emptively decide that an accused is guilty, research shows what common sense suspects. The police look for supporting evidence and tend to dismiss counter information due to confirmation bias. Again, wrongful convictions become more likely, especially since EVAWI instructs investigators on how to assist prosecutors in countering “potential defense strategies.”

Another reason trauma-informed justice gains ground: law enforcement is asked to listen “to the science.” The science of traumatized people remembering events in a disjointed or inconsistent manner is presented as “settled.” This is not true. Unbiased studies contradict trauma-informed claims. Daniel Reisberg’s “Emotion’s (Varied) Impact on Memory for Sexual Misconduct” found, for example, “These data suggest that traumatic events are likely to be well remembered.” At bare minimum, the nature of traumatized memories is a matter for vigorous debate and untested ideology-based theories should not be fixed into policy.

The current standard police procedure is called the Reid method. It has three steps: factual analysis, interviewing, and interrogation. The factual analysis eliminates suspects and develops leads. Interviewing elicits investigative and behavioral information through non-accusatory dialogue with accusers, suspects, and witnesses; the interview has nine well-defined stages. Interrogation involves subjecting a confirmed suspect to accusations in which the investigator claims to know the person is guilty and angles for a confession. Police investigations may be imperfect but they have been tested and streamlined by time, with legal challenges providing protections to those being questioned.

In its “Report on the Use of the Forensic Experiential Trauma Interview (FETI) Technique” (2015), the United States Air Force Office of Special Investigations summarized its reluctance to replace an established protocol with trauma-informed techniques. “We believe it would be inappropriate and irresponsible to discontinue the use of a robust, well-studied, effective, and empirically-validated interviewing method that is supported by the latest scientific research (the Cognitive Interview), in favor of an interviewing method that is loosely-constructed, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.”

Social workers and therapists may need to Start By Believing the person they seek to heal. But the police are not mental health workers; they deal in cold, hard facts that have no gender or race. Investigators need to discern what is true or false about a situation rather than respond emotionally to it. In the process, some officers make mistakes and some act with malice; officers are human beings with all the flaws of shared humanity. The incompetence or malfeasance of individuals must be remedied but neither one is an indictment of the principles of Western justice. Turning accusations into convictions only makes prisoners of innocent people.

Content / Editorials / The Metastasizing Cancer of Trauma-Informed Justice – ifeminists.com

Department of Education Due Process Sexual Assault Title IX

To Protect Both Victims and the Accused, Biden Should Preserve Trump’s Title IX Reforms

Post author By Deanna Brown
Post date December 14, 2020

By Buddy Ullman
December 14, 2020

President-elect Joe Biden has suggested that he will put a “quick end” to Secretary of Education Betsy DeVos’s rule that details how educational institutions must comply with Title IX, the transformative civil rights law that prohibits gender discrimination, sexual harassment, and sexual assault in educational programs receiving federal financial assistance.

This is a terrible idea.

In 2011, the Obama administration under Biden’s leadership stipulated equivocal and mostly discretionary guidance to colleges and universities on Title IX (TIX) compliance and, in particular, how these institutions should adjudicate TIX disputes. The quasi-judicial proceedings that resulted generally lacked due process and free speech protections, were legally dubious and patently unfair toward the accused, and too often resulted in erroneous conclusions.

Some 669 court cases filed by accused students have resulted, for which the majority of judicial decisions rendered have been favorable to the plaintiffs, mostly on constitutional and fairness grounds. In a nutshell, the Obama/Biden TIX guidance created a mess, and the need for TIX compliance reforms emphasizing due process and other constitutional and civil liberties was compelling. These reforms were achieved in DeVos’s TIX compliance rule.

While a professor at the Oregon Health & Science University (OHSU), I had the misfortune of experiencing Obama/Biden TIX guidance firsthand. I was a respondent in a duplicitous sexual harassment investigation, in which I wasn’t allowed to know the allegations against me or the identities of the complainants or witnesses; nor was I permitted to present witnesses on my behalf, to submit or review evidence, or to defend myself. What happened to me is not unusual for a respondent in a Title IX investigation.

Ultimately, I was found responsible for sexual misconduct and punished, only to learn ten months after my case was closed that the charges against me were complete fabrications and motivated by retribution. Notably, the Department of Education’s Office for Civil Rights refused to intercede on my behalf because it concluded that OHSU had applied Obama/Biden era guidance appropriately. The DeVos rule, had it been operative at that time, would have precluded these shenanigans.

Ironically, President-elect Biden experienced multiple accusations akin to those faced by TIX respondents. In 2020, he was accused of sexual assault and numerous past incidents of inappropriate behavior toward women and girls but survived the ensuing storm because he was powerful, privileged, presumed innocent, and given a platform to defend himself.

Most TIX respondents aren’t so lucky. Had Biden walked in my shoes, he would have been prosecuted mercilessly under his own guidance.

Biden has not offered a persuasive rationale for voiding the DeVos rule other than a few platitudes about how the rule aims to “shame and silence survivors” and “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” Survivors, Biden says, “deserve to be treated with dignity and respect, and…. not silenced.” The DeVos rule does nothing of the sort: it ensures fairness, equitability, and impartiality when a sexual misconduct dispute requires investigation or resolution, something Biden’s own guidance did not.

Of greater concern, the President-elect does not appear to understand TIX’s purpose. TIX has nothing to do with sexual violence, survivorship, or campus safety issues. Rather, TIX is about equal educational access, which the DeVos rule protects admirably. The only time that sexual harassment or assault concerns TIX is when the misconduct secondarily affects participation in school programs and facilities.

The DeVos rule has proved controversial and partisan, but it shouldn’t be regarded that way. I am a liberal, progressive Democrat who finds little to like among DeVos’s educational policies, but her TIX rule is a meticulous, detailed, and well-considered nonpartisan document predicated on the U.S. Constitution, judicial precedent, and congressional intent. Emphasizing fairness and justice, the DeVos rule is far superior to the guidance that it supplanted. This Democrat can separate the message from the messenger.

Reverting to the Title IX compliance nightmare of the Obama/Biden era would be a major setback to the cause of fairness and due process. We can only hope that Biden doesn’t follow through.

Buddy Ullman is a former Professor of Biochemistry and Molecular Biology from the Oregon Health & Science University.

To Protect Both Victims and the Accused, Biden Should Preserve Trump’s Title IX Reforms | RealClearEducation

Campus Sexual Assault Title IX

Will Biden Heed Support Shown for Accused Students’ Rights?

Post author By Deanna Brown
Post date December 14, 2020

COMMENTARY

By Stuart Taylor Jr.

President-elect Biden and his team are preparing to bring what he has called a “quick end” to the new rules requiring fair, nondiscriminatory campus procedures for students accused of sexual assault that the Betsy DeVos Education Department issued in May.

But the results of a little-noticed but stunning poll suggest that on this issue, Biden is far out of step with the electorate, not to mention the courts and fundamental fairness. In one major survey, 68% of the 2,532 Americans polled in mid-November by YouGov agreed that “students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Only 8% disagreed. The rest neither agreed nor disagreed.

The responses to this and the poll’s four other questions show broad public support for providing accused students with civil liberties protections even more robust than those required by the DeVos rules. Four other surveys since 2017 have also found strong support for campus due process.

Meanwhile, federal and state court judges across the country, including appointees of Presidents Clinton and Obama and their predecessors, have severely criticized many aspects of the campus sexual assault regimes imposed by most universities under pressure from the Obama-Biden administration, student activists, and many of their own professors and bureaucrats.

Accused students have won at least 194 favorable rulings in state and federal courts, including four federal appeals courts that expressed this summer “concerns that universities, however well-intentioned, had discriminated against an accused student on account of his sex, in violation of Title IX,” as KC Johnson has reported.

But the opinions of the electorate and of the courts are apparently less important to Biden than the fervor of the powerful interest groups that presume male guilt – Democratic legislators, accusers’ rights groups, university leaders, radical feminists, and more. Biden has personally bad-mouthed the DeVos rules, which leading civil libertarians have praised, as aiming “to shame and silence survivors” and “strip [them] of their rights.”

Biden led the Obama administration drive to require colleges to deny accused students a meaningful chance to defend themselves, thereby dramatically increasing the risk they’d be found guilty, even if they were actually innocent. The administration “threatened to withdraw federal funding from schools that resisted these directives, ‘strongly’ discouraging cross-examination and urging colleges to handle Title IX cases without a hearing and through a ‘trauma-informed’ approach that presented virtually any behavior as consistent with the accused student’s guilt,” as Johnson wrote.

It does not appear that the bias of Biden and other Democratic politicians against accused males has cost them much politically, perhaps because the mainstream media have largely ignored the issue. The new poll strongly suggests that most Americans support even more protections for possibly innocent accused students than are required by the DeVos rules and by many court decisions.

YouGov, which is highly respected across the political spectrum, conducted the poll on behalf of Stop Abusive and Violent Environments (SAVE), a little-known nonprofit that has been very active in supporting the DeVos reforms adopted for campus sexual assault proceedings. While SAVE’s agenda is no secret, its president, Edward Bartlett, pointed out in an interview that the five questions SAVE told YouGov to use in the November poll were taken almost verbatim from five of the questions that YouGov had included in a broader survey of 1,200 people conducted on behalf of Bucknell College in July-August 2017, with similar results.

In addition to the overwhelming majority of respondents who agreed that colleges should afford accused students the same civil liberties protections as the court system – that is, more protections than have ever been required even by the DeVos rules or by any court – the responses to the poll’s four other questions also show strong support for fairness to accused students.

A strong plurality (49%) of respondents agreed that students accused of sexual assault on college campuses “should have the right to cross-examine their accusers,” while 24% disagreed and 27% neither agreed nor disagreed.

Biden and many other Democrats have vowed to ban any cross-examination of accusers. The DeVos rules require campuses to allow representatives of accused students, but not the students themselves, to conduct a cross-examination. Some court decisions would also subject accusers to direct cross-examination by the accused.

Three-fourths of respondents to the YouGov poll agreed that “students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.” Only 5% disagreed. (The DeVos rules would generally allow colleges to find accused students guilty by a lower burden of proof, “preponderance of the evidence,” and very few if any colleges require more.)

More than four out of five respondents agreed that “students accused of sexual assault on college campuses should have the right to know the charge against them before being called to defend themselves.” (The DeVos rules require colleges to give accused students the same right.)

And when asked “which, if either, of these [two] statements comes closest to your own opinion,” 67% said that “allegations of sexual assault on campus should be primarily handled by the state or local police.” Only one-third said that “universities should take a leading role” in investigating such allegations.” (In reality, almost all universities routinely take a leading role in such cases.)

Will Biden heed public opinion on this issue? He never has. And he has never given the slightest weight to the possibility that some accused men may be innocent — with one exception. That was Biden’s denial of the unverified allegations by his former aide Tara Reade, who has claimed that the then-senator sexually assaulted her in 1993.

Weak as Reade’s allegations are, chances are that under the guilt-presuming regime that Biden plans to reinstitute, hundreds of college students facing equally weak allegations will be expelled by campus kangaroo courts. A man who has paid as much attention to campus sexual assault as Biden must know that.

Stuart Taylor Jr. is co-author, with KC Johnson, of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Will Biden Heed Support Shown for Accused Students’ Rights? | RealClearPolitics

Campus Sexual Assault Sexual Harassment Title IX

PR: Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’

Post author By Edward Bartlett
Post date November 18, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’

WASHINGTON / November 18, 2020 – A recent SAVE survey, conducted by YouGov, shows a strong majority of Americans support due process for college students accused of sexual offenses. The survey of 2,608 adults, representative of the U.S. population, reveals the following:

Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves. Agree: 81%
Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system. Agree: 68%
Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime. Agree: 75%

The survey also found that 68% of respondents said this statement, “Allegations of sexual assault on campus should be primarily handled by the state or local police,” comes closer to their opinion, compared to the statement, “Universities should take a leading role in investigating allegations of sexual assaults on campus.”

The recent survey was designed to replicate a 2017 survey conducted by the Bucknell Institute for Public Policy, which used the same questions and reported nearly identical results to the four questions listed above (1).

The Bucknell survey also queried, “Students accused of sexual assault on college campuses should have the right to cross-examine their accusers.” The new Title IX regulation only allows an intermediary to ask questions of the complainant, not the accused, so this question is no longer relevant to current campus policies.

Fieldwork was undertaken November 12-16, 2020. The survey was carried out online. The survey results are representative of all U.S. adults, aged 18+. This survey was conducted using an online interview administered to members of the YouGov Plc panel of individuals who have agreed to take part in surveys. The full survey results can be viewed online (2).

To date, federal and state judges have issued 193 decisions favorable to accused students (3). In a recent case involving Rensselaer Polytechnic Institute, Judge David Hurd utilized strong language to chastise RPI’s use of a double-standard. The court commented that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” The plaintiff presented strong evidence that “RPI has come down on the opposite side of that truth,” the court concluded (3).

In recent years, mistreatment of both complainants and the accused have resulted in campus disciplinary committees being derided as “Kangaroo Courts.” (5) This week SAVE is launching a new campaign titled “Save Due Process on Campus.” (6) The goal of the campaign is to assure the incoming Biden Administration retains and vigorously enforces the new Title IX due process regulation (7).

Links:

Campus Sexual Assault Sexual Harassment Title IX

Students accused of non-Title IX misconduct should get fair hearings, too

Post author By Edward Bartlett
Post date November 12, 2020

Students accused of non-Title IX misconduct should get fair hearings, too

by Susan Kruth

November 12, 2020

Students sometimes ask why FIRE spends so much time making sure students accused of sexual misconduct receive fair hearings. They’ve noticed that over the past decade, a lot of our work has focused on the interplay between Title IX and due process. But things weren’t always this way. While FIRE has always been on the front lines of the battle to ensure students accused of misconduct are given a meaningful opportunity to defend themselves before they are punished, our biggest early due process case centered around a Facebook post about a parking garage — it had nothing to do with sexual misconduct at all. FIRE started focusing more on fundamental fairness in sexual misconduct disciplinary procedures about a decade ago, when colleges and universities, under the direction of the federal government, started throwing away procedural safeguards specifically in sexual misconduct cases and not in other cases.

Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves.

This year, the Department of Education finally mandated that schools bound by Title IX (almost all colleges and universities nationwide) guarantee students accused of sexual misconduct under Title IX many critically important procedural safeguards to ensure they are not punished without due process. So what now?

FIRE’s goal was and is not that students accused of sexual misconduct be treated more fairly than students accused of other misconduct. Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves, including the right to a presumption of innocence, information about the charges and the evidence against them with time to prepare before the hearing, and a live hearing with an opportunity to cross-examine witnesses. Federal regulations now require that students facing discipline under Title IX are afforded these protections. This is a solid advance for campus justice, but schools owe students an explanation if they’re not going to treat non-Title IX cases with the same care with which Title IX cases will be handled going forward.

To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university.

As suggested by the Supreme Court of the United States in Goss v. Lopez, the formality of school disciplinary procedures required to achieve due process depends on what’s at stake. This factor — not whether alleged misconduct is sex-based — should be key in determining what kind of safeguards against unjust punishment a student is afforded. Case law in recent years has affirmed that where students’ educational careers may be derailed, robust safeguards like those now required by Title IX regulations are integral to a fundamentally fair process. And, of course, it would be just as reasonable to suspend or expel a student for creating a hostile environment based on race or for assaulting another student in a non-sexual context as it would be to suspend or expel them for sexual misconduct.

To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university asking it to provide students accused of non-Title IX misconduct the same safeguards students are entitled to receive under Title IX regulations. Whether schools choose to adopt FIRE’s Model Code of Student Conduct or simply make their new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion, improving the process is an essential step towards protecting student rights.

As always, students, faculty, or administrators with questions shouldn’t hesitate to email us at dueprocess@thefire.org.

Here is our template letter:

Dear President [Name]:

As an institution bound by Title IX of the Education Amendments Act of 1972, [Institution] must abide by the Department of Education’s new Title IX regulations, which took effect August 14. The regulations require that schools like [Institution] guarantee students several important procedural safeguards in disciplinary proceedings prompted by allegations of sexual misconduct to ensure students have a meaningful opportunity to be heard.

Yet at present, [Institution] does not provide all of these safeguards in non-Title IX cases. I am writing to ask [Institution] to provide these safeguards to students in disciplinary proceedings for all cases where students face long-term suspension or expulsion. Where the stakes are high, the principles of due process and fundamental fairness require procedures tailored to help fact-finders arrive at accurate conclusions — whether the allegations are of sexual misconduct or non-sexual misconduct.

Among other elements, the Title IX regulations require schools to guarantee presumption of innocence, sufficient notice of charges, sufficient time with evidence to prepare for a hearing, impartial fact-finders, and live hearings with an opportunity to question witnesses. These safeguards help ensure that complaints of sexual misconduct will be taken seriously while all students accused of sexual misconduct are afforded a fundamentally fair process before being subjected to potential discipline. But just as allegations of sexual misconduct must be handled with care and integrity, so too should allegations of other types of serious misconduct.

To assist institutions with this goal, the Foundation for Individual Rights in Education has crafted a comprehensive “Model Code of Student Conduct.” FIRE’s Model Code includes definitions of key terms, an explanation of the institution’s jurisdiction, prohibited conduct, and disciplinary procedures that incorporate—into both sexual misconduct cases and non-sexual misconduct cases—the procedural safeguards mandated by the new Title IX regulations. The full Model Code is available on FIRE’s website at www.thefire.org/modelcode, and you can send questions to FIRE at dueprocess@thefire.org.

[Institution] can also better protect student rights simply by making its new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion. Students should be granted the safeguards required by the new Title IX regulations not because the allegations relate to sexual misconduct, but because the potential sanctions can be life-changing. To deny students in serious non-sexual misconduct cases those same safeguards, therefore, is unjustifiable and unfair.

Incorporating the important protections listed above into our student conduct procedures for all cases where students face serious punishments would establish our institution as a leader in protecting the rights of all students and the integrity of our hearing processes. I hope to see [Institution] take this step to make all serious disciplinary proceedings fair.

Sincerely,

[Student]

Source: https://www.thefire.org/students-accused-of-non-title-ix-misconduct-should-get-fair-hearings-too/

Campus Sexual Assault Sexual Harassment Title IX Title IX Equity Project

Biden is President-Elect. Can We Just Ignore the Title IX Regulations Now?

Post author By Edward Bartlett
Post date November 11, 2020

November 9, 2020

TNG Consulting and Brett Sokolow

It has been a week! We now know that Joe Biden is the President-Elect of the United States of America. There will still be some legal wrangling, and nothing is set in stone until the electors vote in December. But, assuming this outcome is maintained, you’ll likely be able to ignore Executive Order 13950 (“Combating Race and Sex Stereotyping”). But, what about the Title IX Regulations?

You’ve always had the option to ignore them. The question is whether you’re willing to accept the consequences of that decision. If so, compliance is a choice. If not, you need to comply. So, to make an informed decision, you need to know what the consequences are.

In just 70 days (plus or minus) there will be a new administration. The Office for Civil Rights needs to be directed to come after you for failing to comply with the regulations, and their new Biden-appointed supervisors aren’t likely to do that. Even if OCR were to enforce, you could drag it out and appeal. There is no way for OCR to issue a 305 notice of adverse enforcement action within 70 days, and even then that would have to be referred to the courts, so you’re probably pretty safe on that front.

The problem is the courts. Deprive respondents of their regs-based rights, and they will sue. Trump-appointed judges and others who value due process over victim’s rights will use the regulations as the basis of enforcement through litigation, though exactly how that will work remains to be tested. Do you want to be the test case? Maybe you’ll face a TRO. It’s temporary. Could President Biden’s ED act to rescind the regulations before a permanent injunction would be implemented? That would stop judges from enforcing the regs. Litigating to trial could take two years. By that time, Biden’s administration will have acted to at least rescind the regs, if not replace them, right? That would moot the lawsuit. So, you have to decide whether fending off some lawsuits is a reasonable price to pay for liberating your campus or school from the regulations.

Of course, President Biden won’t rescind the regs personally. That will be done by the Secretary of Education. How long will it take the Biden transition team to vet and select a nominee for Secretary of Education? How long might it be until a Secretary of Education is in place (must be confirmed by the Senate), builds a new team, and works through his/her/their priorities until Title IX hits the top of the list? It could be a year. ATIXA expects many colleges and schools will maintain their compliance with the regulations until then, but we also expect some loosening over time, as signals are issued from the Biden administration and the Department of Education about how they’re going to play this. What will change?

An informal poll of the ATIXA Title IX experts came up with these top ten targets:

Relief from direct cross examination by an advisor (cross-examination is not going anywhere, but we expect a lessening of the rigid regs requirements)
Removal of the nonsensical exclusionary/hearsay rule regarding “statements”
Revocation of the confusing rules on relevance v. directly related evidence
Two ten-day review periods likely collapsed into one period
Formal complaint requirement will be reversed
Hearing requirements for at-will employees will be limited
Hearings will only be required when some form of separation is on the table, and the definition of hearing will be broader and less formal
Mandated dismissal of Title IX complaints removed
Broad retaliation protections rolled back, especially as applied to respondents
Removal of any necessity for two processes

We do expect there will be some legal counsels who evaluate the risk and advise their schools and districts to move away from the regs to a best practices model (ATIXA’s Process B?) immediately. We can’t and won’t advise you to do so yet (and some circuit courts of appeals won’t allow it), and we don’t advise you to ignore the regs without first consulting your attorneys. Doing the right thing by implementing a best practice model may wind up being a very defensible position going forward. ATIXA will have its eyes on ways to effectively balance the rights of complainants and respondents, and how we can help you to do so as the rules for Title IX likely shift again in the coming years.

If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach, like what ED did in 2017, to fill the gap. Simultaneously or soon thereafter, ED will announce a process to issue new regulations under the APA (which will then take 1 year to 18 months). The DCL won’t bring back 2011 but will likely use a framework that modifies the current regulations per our above laundry list. This is the mostly likely scenario, but don’t write off a Title IX Restoration Act in Congress, especially if the Senate goes blue after the Georgia runoff elections in January.

Source: https://www.jdsupra.com/legalnews/biden-is-president-elect-can-we-just-63134/

Campus Due Process Sexual Assault Sexual Harassment Title IX

Barrett Confirmation is a Win for Due Process on Campus

Post author By Edward Bartlett
Post date November 10, 2020

Barrett Confirmation is a Win for Due Process on Campus

By Edward Bartlett

In her swearing-in ceremony, new Supreme Court Associate Justice Amy Coney Barrett pledged “to do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences.” While many speculate on how the tenure of the 115th justice will impact the court, one thing is a near certainty – it is a win for due process and ending sex discrimination on university campuses.

For nearly a decade, college administrators have interpreted Title IX in a way that allowed them to discriminate against students based on sex by offering, among other things, sex-specific STEM courses, leadership development programs, and scholarships. Additionally, universities have used Title IX to railroad students who have been accused—not convicted—of harassment or sexual assault. Thankfully, the U.S. Department of Education released regulations earlier this year that protect students from these types of discriminatory practices.

On this topic, Barrett has shown herself to be a fair jurist—an originalist who interprets the law as it is written not as she wishes it was. And the law is clear when it comes to Title IX—discrimination based on a student’s sex is prohibited.

At her announcement ceremony in the White House Rose Garden, Barrett made it clear that she doesn’t care who a person is when considering a case but what the law says. Barrett stated she would, “administer justice without respect to persons,” which is exactly what’s missing on today’s college campus where an entire sex is shut out of classes and a mere accusation is enough for expulsion.

When one sex discrimination case, Doe v. Perdue University, was put before the U.S. Court of Appeals for the 7th Circuit, Judge Barrett wrote the panel’s opinion after they revived the student’s right to due process.

The student, referred to as John Doe, was accused of sexual misconduct, which he denied. He was suspended, discharged from the school’s ROTC program, and stripped of his ROTC-related scholarship, even though he was not allowed to call witnesses or defend himself in any meaningful way.

Barrett wrote, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension . . . John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair.”

This may seem like an isolated incident that’s the result of an overzealous administration with an ax to grind. But I assure you, this type of sex discrimination is happening to male students all over the country despite the recent changes to Title IX.

Judge Barrett isn’t the only well-known judge with experience in sex discrimination. Almost half a century ago, the late Supreme Court Justice Ruth Bader Ginsburg, the judge Barrett is set to replace on the country’s highest court, made waves when she represented Charles Mortiz in Mortiz v. Commissioner of Internal Revenue after he was denied a tax deduction for expenses related to the care of his invalid mother. Only women and previously married men were allowed the deduction, so Mortiz, a lifelong bachelor, was denied it due to his sex. Thanks to Ginsburg, that discriminatory decision was eventually overturned.

While Justice Ginsburg never ruled on a Title IX case related to campus sexual assault, she did comment on the issue in 2018, stating, “there’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” and that, “the person who is accused has a right to defend herself or himself.”

I agree with Justice Ginsburg and believe that clarity on sex discrimination will help set the tone when it comes to Title IX compliance. Which is one very important reason to celebrate Justice Barrett’s confirmation to the Supreme Court.

Campus Sexual Assault Sexual Harassment Title IX

N.Y. and Ed Dept. Dismiss Title IX Rule Lawsuit

Post author By Edward Bartlett
Post date November 6, 2020

By Greta Anderson

November 5, 2020

The State of New York and the U.S. Department of Education agreed Tuesday to dismiss the state’s lawsuit against the department and Secretary of Education Betsy DeVos. The lawsuit, filed in June by state officials and the Board of Education for the New York City school district, challenged the Trump administration’s new rules for how colleges and universities respond to campus sexual assault and harassment.

The lawsuit is the second to be dismissed of four lawsuits that were brought against the department due to the new rules, which were issued in May under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions. Last month, a judge for the district court in the District of Columbia dismissed a lawsuit filed by the American Civil Liberties Union on behalf of advocacy organizations for survivors of sexual assault.

The State of New York’s lawsuit, however, was voluntarily dismissed, according to court documents filed in U.S. District Court for the Southern District of New York. Both the state and the Department of Education agreed that Tuesday’s dismissal would not prevent the state or its institutions “from asserting the invalidity” of the Title IX regulations if New York schools are sued for sexual assault or harassment-related claims, the agreement said.

As of Nov. 4, there are two remaining lawsuits that challenge the legality of the Title IX regulations. One lawsuit filed by the National Women’s Law Center and other legal advocacy groups is scheduled to go to trial starting Nov. 12 in United States District Court for the District of Massachusetts. Arguments in another lawsuit, which 18 attorneys general are backing, are scheduled to stretch into 2021, according to court documents.

Source: https://www.insidehighered.com/quicktakes/2020/11/05/ny-and-ed-dept-dismiss-title-ix-rule-lawsuit#:~:text=The%20State%20of%20New%20York,Secretary%20of%20Education%20Betsy%20DeVos.&text=Arguments%20in%20another%20lawsuit%2C%20which,2021%2C%20according%20to%20court%20documents