WASHINGTON / November 12, 2018 – Several non-partisan, national surveys point to widespread public concern about the erosion of the presumption of innocence and due process in our country, the problem of false allegations, and a pressing need to reinvigorate these bedrock principles of fairness in our legal system.
Public concern was first spotlighted in a 2011 SAVE survey that reported 9.7% of persons report they have been falsely accused of sexual assault, domestic violence, or child abuse. One in six of the respondents personally knew someone who said he or she had been falsely accused of domestic violence, child abuse, or sexual assault (1).
A 2013 survey commissioned by the Center for Prosecutor Integrity found that 66.8% of respondents believe the presumption of innocence is becoming lost in our legal system. In addition, 42.8% of persons say prosecutorial misconduct has become widespread (2).
A 2017 YouGov poll revealed strong support for the restoration of due process in campus sexual assault cases. The survey queried whether “Students accused of crimes on college campuses should receive the same civil liberties from their colleges that they receive in the court system.” Among the 1,200 persons responding, 65% of Democrats, 77% of Republicans, and 67% of Independents expressed agreement with the statement (3).
A poll by Ipsos/NPR found 80% of men and 73% of women believe that those who are accused of sexual harassment should be given the benefit of the doubt until proven otherwise. The survey was conducted October 22-23, 2018 with a sample of 1,003 adults (4).
Much of the shift in public perceptions can be linked to the controversies associated with the #MeToo movement.
Morning Consult recently found 57% of U.S. adults say they are equally worried about men facing false allegations of sexual assault as they are about women facing sexual assault. Overall support for the #MeToo movement has dropped 2% over the last year, the survey found (5).
A survey conducted by YouGov and the Economist in October revealed 18% of Americans now think false accusations of sexual assault are a bigger problem than attacks that go unreported or unpunished, compared with 13% one year ago. These shifts in public opinion against complainants have been stronger among women than men, the Economist noted (6).
SAVE has developed a Due Process Statement that urges members of Congress to “speak out in support of Constitutionally rooted due process rights on campus.” Over 285 law professors, scholars, and state lawmakers have signed the Statement. SAVE invites additional state lawmakers to become co-signers. For more information, contact mvalois@saveservices.org.
New Education Department Rules to Change Procedures for Campus Sexual-Assault Cases
By
Michelle Hackman
Oct. 31, 2018 6:37 p.m. ET
WASHINGTON—New federal rules governing campus sexual-assault cases will require that accused students be allowed to cross-examine their accusers, according to people familiar with a draft of the rules.
The requirement marks a shift from an initial draft of the new rules, leaked in August, which Trump officials are writing to replace a set of Obama-era guidelines they feel didn’t provide sufficient protections for students accused of sexual assault.
The rules, which Education Secretary Betsy DeVos will likely publish in November, will narrow the definition of sexual assault that schools are required to adjudicate and restrict eligible cases to those that occur on campus. The rules will be subject to a comment period before taking effect.
The rule changes fall under Title IX, a 1972 law barring gender discrimination in schools and colleges that receive federal funding.
In the earlier draft, the administration initially proposed providing schools with the option of incorporating cross-examination into their procedures.
The current version would make a cross-examination provision mandatory, though questions could be funneled through a neutral party and students could be seated in separate rooms. The rules would also bar accused students from asking their accusers inappropriate questions, such as details of the accuser’s sexual history.
The modification echoes the goals of some university administrators, men’s rights activists and due-process advocates who believe students accused of behavior that could result in their expulsion should be given more opportunities to defend themselves.
“Courts have recognized that cross-examination is an essential part of the process of figuring out the truth in cases where credibility is a factor,” said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, which advocates for more due process for those accused of campus sexual assault.
Anurima Bhargava, a former Obama Justice Department official who oversaw civil rights enforcement in educational settings, said the Obama administration discouraged the use of cross-examination because it could make sexual-assault victims reluctant to come forward.
“If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” she said.
The modification also reflects a belief espoused by President Trump and some other Republicans that young men—who make up the vast majority of accused students—are often presumed guilty and subjected to an unfair process to determine the truth.
Following Democrats’ demands that Justice Brett Kavanaugh step aside this fall, Mr. Trump suggested that the #MeToo movement is unfairly targeting men who aren’t guilty of any sexual impropriety. He said it is a “very scary time for young men in America” when “you can be guilty of something you may not be guilty of.”
An Education Department spokeswoman declined to comment on the contents of the rules until it is published.
The new rules will make at least one change from the earlier draft that was pushed by victims’ advocates. Rather than allowing only accused students to appeal rulings, the rules will maintain an Obama standard allowing both parties to appeal.
Critics have said that practice too often forced schools to retry accused students who had been already found innocent.
Some officials had advocated publishing the sexual-assault rules ahead of next week’s midterms, arguing that it would be viewed positively by the Republican base, particularly after Justice Kavanaugh’s nomination. Those officials were ultimately overruled, according to people familiar with the matter.
The Department of Health and Human Services is still looking at defining gender as an individual’s sex at birth, though if it isn’t defined that way in Title IX, it will be harder to apply such a definition across the federal government.
Trump administration officials are now looking at issuing a legal opinion through the Justice Department stating the administration’s belief that gender under Title IX is determined by a person’s genitals at birth, according to people familiar with their thinking.
But issuing such an opinion, without writing the definition into formal regulations, would put the government on weaker footing.
Once the rules are published, the public will be given a window to comment before they go into effect.
University administrators, in particular, said the old process put undue restraints on their ability to handle assault cases, and that the Obama administration’s stance led schools to fear that any misstep could prompt a costly federal investigation.
Mrs. DeVos revoked those guidelines in 2017, and said her agency would issue formal regulations in their place. The rules she intends to publish will carry the force of law without action by Congress.
The rules are being prepared as sexual assault—and colleges’ responses to it—remains a flashpoint on campuses. Both the accused and alleged victims have faulted institutions for shoddy investigations or biased tribunals.
In a speech last year, Mrs. DeVos likened the campus processes used to adjudicate sexual assault to “kangaroo courts” that followed arbitrary rules and offered inadequate protections to those involved.
“Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved,” she said.
COLLEGE ATHLETES IN recent years were about three times more likely than other students to be accused of sexual misconduct or domestic violence in complaints made at Power 5 conference schools, according to an analysis by Outside the Lines.
That finding is based upon data from Title IX complaints covering allegations of sexual assault, domestic violence, sexual exploitation, sexual coercion, stalking or retaliation collected from 32 Power 5 schools that provided records in response to requests for complaints against athletes over the past six years. Outside the Lines sought the data from all 65 Power 5 schools, but some officials did not provide information, and some that did provide information did not do so for all years.
The data provided show that, on average, about 6.3 percent of Title IX complaints against students — whether the complaint resulted in a formal investigation or not — included an athlete as the person accused of wrongdoing, officially called a “respondent” in the reports. Though that percentage equates to a minority of the overall number of complaints at Power 5 campuses made during the time period, athletes were named in such reports more often than might be expected considering they represent, on average, just 1.7 percent of total student enrollment at the universities.
Using the data to make school-to-school comparisons about which have the highest percentage of complaints or the highest number of complaints involving accused athletes should be done with caution because school officials did not always provide the exact data Outside the Lines requested. For example, one school might have insisted upon providing every complaint that had been filed with a Title IX office while another school might have insisted upon providing data only about cases that ended up in formal investigations.
It is, however, possible to determine an overall student-athlete-to-other-student comparison, because within each school, the data for athletes and students were subject to the same parameters. Outside the Lines consulted with two statisticians about its study methods.
W. Scott Lewis, co-founder of the Association of Title IX Administrators and partner with The NCHERM Group consultants, said it can be helpful to know whether a student involved in a Title IX complaint is an athlete, a member of the Greek system, ROTC or any other affiliation so school officials can detect patterns and take next steps.
“You’re supposed to — when you’re dealing with a student — understand the context of that student’s experience,” Lewis said, “regardless of the action they’ve been accused of.”
Kansas State University did not have an existing report about complaints against athletes but compiled the data for Outside the Lines anyway.
“If we don’t know this, we should know this,” said Jeff Morris, vice president of communications and marketing at Kansas State. Given the high-profile, national stories about campus sexual assault issues tied to athletes, he said, “We should all be paying attention.”
STARTING IN MARCH, Outside the Lines filed public records requests with all 53 public Power 5 schools and followed up with informal inquiries. Outside the Lines also requested data from the 12 private Power 5 schools that are not subject to open records laws; Baylor was the only private school that provided information.
A few schools declined Outside the Lines’ requests, stating that releasing records would violate student privacy, although each Outside the Lines request explicitly stated that names and identifying information could be excluded.
Some of the schools that didn’t provide numbers of complaints against athletes did at least provide the number of complaints against all students. Outside the Lines included those in its database because the information would be of public interest, even though those schools were not factored into the overall data analysis. However, some schools didn’t even have that level of detail on complaints.
The University of Virginia sought to charge Outside the Lines $33,902 to pull complaints in order to calculate just those that had named students; that estimate did not include records involving athletes, which the university refused to provide, citing privacy concerns. Outside the Lines declined to pay for the records but did pay clerical expenses for data from some schools.
An official at Virginia consulted with archrival Virginia Tech University prior to sending Outside the Lines its estimate, according to emails obtained by Outside the Lines. Virginia Tech officials confirmed to Virginia officials that they had received the same request but were planning to deny the request for athlete data. “I honestly do not feel it’s the best use of our extremely limited resources to try to pull this data for a story,” one Virginia Tech Title IX official wrote.
Understaffed Title IX offices is a common concern among Title IX officials: Outsides the Lines surveyed Title IX administrators at schools of all sizes and divisions, and of the 99 respondents, 75 percent said they did not have enough staff.
“I want the information as much as anybody else. I think we could learn from it. I think we could prevent things with it,” said Brett Sokolow, president of the Association of Title IX Administrators. “It would be amazing if Title IX offices had the capacity to get out there and say, ‘We’re having a problem with the tennis team, and we can see that in our data. Let’s make sure we direct more of our education policy training efforts to them to see if we can shore that up.’ That’s very rare.”
Dan Schorr, a Title IX consultant who aided Michigan State with Title IX investigations, said schools should, at the very least, know how many athletes are in complaints overall.
“If everyone in the community knows a certain sports team is involved in a certain number of complaints, there might be an outcry and a demand for reform,” said Schorr, who is now managing director with the consulting firm Ankura. “If people aren’t aware of that, that’s not going to happen.”
The U.S. Department of Education did not respond to requests for an interview with its assistant secretary for civil rights, Kenneth Marcus, or to questions from Outside the Lines for this story. The office is planning to release new rules for how schools should handle allegations of sexual assault, with an emphasis on giving accused students more due process in investigations.
Several rules in draft form were leaked to media this year and relate to which sexual assault and violence incidents should be counted and who should be required to report them. The changes could have significant impact on the Title IX caseload totals. In 2011, the U.S. Department of Education Office for Civil Rights re-emphasized sexual violence as a matter of equity and access under Title IX. Schools have been required to have a Title IX coordinator on campus and set up a procedure to address filed complaints.
Another key finding from the data obtained by Outside the Lines: Awareness and use of Title IX offices has increased dramatically in the past six years, with many coordinators and industry experts citing high-profile athlete cases as a driving force. Reports of sexual misconduct against students overall are up — about four times as many in 2017 as in 2012 among the schools that provided data for those years. The OCR, which investigates complaints about how all types of schools respond to Title IX sexual violence reports, had 130 complaints in 2014. As of this fall, it had about 400 open cases, according to the department’s website.
Without those athlete cases making headlines, the campus sexual assault awareness campaign “would be largely nonexistent,” said Catherine Lhamon, the assistant secretary for civil rights at the U.S. Department of Education from 2013 to 2017, and current chairwoman of the United States Commission on Civil Rights.
“The capturing of the hearts and minds of the American public is what has moved this issue,” she said. “The response of student communities to sexual violence among athletes has been really important.”
While there were some variations in the Outside the Lines data about how schools categorized violations and complaints, and which university office handled those complaints, the numbers generally included accusations of sexual assault and abuse, domestic or dating violence, sexual exploitation, sexual coercion, stalking and — where available — retaliation for reporting such incidents.
A spokesman for Ohio State, which had 37 complaints from 2012 to 2017 involving athletes, noted that the university has the most athletes of any Power 5 athletic department and that members of the dance and cheer teams are designated as athletes within the athletic department. A campaign launched in 2015 to raise awareness of sexual assault has “resulted in more survivors coming forward in subsequent years,” he said.
Michigan State, which remains under federal investigation for its handling of Title IX complaints, provided data on athletes for 2016-17 and 2017-18 only. It had 26 complaints made against athletes. A Michigan State spokeswoman told Outside the Lines that officials did not know how many total complaints against Spartan athletes there were prior to 2016; the officials declined to review existing Title IX complaints to find the answer.
At West Virginia, athletes made up about 1.8 percent of the student body but represented about 13 percent of Title IX complaints filed there over six years. WVU’s executive director for student conduct, Carrie Showalter, said the school’s system allows officials to track and detect patterns in certain groups, but she wasn’t aware of that discrepancy involving athletes until contacted by Outside the Lines.
“I do think it’s something that would cause us to look into things a little bit further to see if there’s anything else as a university we need to be doing,” she said.
The idea that athletes are overrepresented in college sexual assault cases is not new. A 1995 study in the Journal of Sport & Social Issues found that male athletes made up 3.8 percent of the male student body but were responsible for 5.5 percent of reported sexual assaults. That report also included data from judicial affairs departments at 10 schools, which showed athletes represented 19 percent of the perpetrators reported for sexual assault but made up only 3.3 percent of the male population.
KNOWING THAT THE data show athletes are over-represented in Title IX complaints at these schools is one thing; the reason why that might be occurring is unknown and debated among Title IX experts.
Lhamon said too many colleges and universities “turn away” from information that might show cultural problems within athletics, yet “the unfortunate reality today, still, is that we have a hypersexualized culture associated with elite athletes.”
Sokolow, the Title IX administrators association leader, said of the roughly 400 external investigations his group completes each year, at least half involve allegations against athletes.
“A lot of it may have to do with the aggressive kind of training and inclination that programs place on athletes to exert aggressive behavior. If that flows over into their sexual lives, you’re going to see more complaints coming out of that,” Sokolow said. “When students of any kind, athletes or not, tend to have a lot of consensual sexual opportunities, it becomes more difficult for them to separate out what non-consent looks like, because everything for them tends to seem consensual. And I think if you did studies, you’d see that student-athletes probably have more sex than students who are not athletes, in many cases.”
Schools and coaches can make the problem worse when they promote sex and sexual behavior among athletes, said Justin Lawrence, a Title IX administrator who conducts sexual assault awareness training at various colleges, including Texas Tech University, which had the lowest percentage of complaints against athletes in the Outside the Lines analysis.
Lawrence cited as examples the recent University of Louisville scandal in which basketball staffers provided access to strippers for recruits and the use of attractive female students as hosts to accompany recruits on official visits — a practice that made headlines at Tennessee and Baylor.
But it starts with coaches tolerating something far subtler, Lawrence said.
“People in the locker room talking about what they did with who or how this person looks. You know the locker room talk, ‘Boys will be boys,’” Lawrence said. “That’s where the rape culture starts. The very foundation of it. So we have to stop that.”
John Clune, a Colorado attorney who has represented women in several high-profile Title IX lawsuits, including some involving athletes, said he sees a higher rate of gang rape and videotape of sex abuse allegations against athletes than nonathletes. He cited a lawsuit he filed against Baylor that alleged a gang rape was part of a bonding activity for recruits.
“There’s something different about the group mentality within these athletic teams that we don’t really see in nonathlete cases, or at least not anywhere near the same frequency,” Clune said.
A September article in the Journal of Clinical Sport Psychology, “Sexual Assault on College Campuses: What Sport Psychology Practitioners Need to Know,” combined years of past research on sexual assault and college athletes and details higher alcohol use among athletes and that “male student-athletes are historically overrepresented as offenders.” The article states that some studies of violent behavior and athletes supported a link between sports and sexual aggression, but there were others that did not.
The article also cited a 2017 study — published in a journal called Violence Against Women — that covered sexual coercion practices among undergraduate athletes showing that they were “77 percent more likely to engage in sexual coercion than non-athletes,” and that athletes reported less positive attitudes toward women and greater acceptance of rape myths, with one example being that “women make false allegations of sexual assault to target innocent men.”
But Paul V. Cannarella, an attorney in South Carolina, said that is exactly what happened this year with his client, a soccer player at Coker College, a private school in Hartsville. The athlete was arrested and charged with rape and kidnapping, but the charges were dropped when the woman who had accused him admitted to making it up, according to a May 6, 2018, story in The State newspaper. The woman was arrested and charged with filing a false police report. A Title IX investigation also found no merit to her claims, Cannarella said.
“Nice-looking athletes tend to attract more women. … They’re just attracted to the big man on campus,” he said. “They consensually involve themselves with that athlete. And then if they feel rejected after anything that goes on between the two of them, and they get angry about it, they have a tendency to misrepresent what happened between the two of them.”
Since 2011, of 256 lawsuits brought by accused students against their universities alleging unfair treatment, about 20 percent of the claims have been made by athletes, said Samantha Harris, a vice president with the Foundation for Individual Rights in Education (FIRE), an advocacy group promoting greater due process in Title IX investigations.
“There may be a perception out there that this might be a problem of student-athletes because these cases have been in the news,” she said. “But I don’t think that is generally reflected in the greater prevalence of sexual assault.”
Schorr, who said he has consulted with dozens of universities, said that although students overall are becoming more comfortable coming forward, he said the process is still daunting for those “who dare accuse the star athlete of impropriety.”
He said women can face hostility from the school and community, and that “there is definitely preferential treatment institutionally.” Schorr said that the investigative process actually tends to favor athletes who are “not always being held as accountable as a nonstudent-athlete would be.”
Even though the Outside the Lines data show complaints against athletes are rising, information from police reports and interviews with alleged victims who have spoken to Outside the Lines indicate that there are still women who decline to report athletes for fear of retaliation and publicity.
FIRE’s Harris said “very few” students accused in Title IX complaints are getting due process — student-athletes or other students — but she did not know why athletes would be more likely to be accused in a complaint.
Of the 45 Division I and Division II Title IX administrators who responded to the Outside the Lines survey, about 69 percent said they felt that athletes were neither more nor less likely to be accused in a complaint, 18 percent said they were less likely, and 13 percent said they thought they were more likely.
Professor Vicki Michaelis and journalism students Wilson Alexander, Brittney Butler, John Durham, Jed May, Connor Richter, Kelsey Russo, Mason Wittner at the University of Georgia assisted Outside the Lines in requesting records for this story. ESPN consulted with Analysis & Inference Inc.’s senior statistician and president William Fairley and senior statistician William Huber on the methodology used in the analysis of the Outside the Lines data.
#MeToo Excesses Have Turned the Tide of Public Opinion, Surveys Reveal
WASHINGTON / November 1, 2018 – Three recent surveys reveal the excesses of the #MeToo movement have increased public skepticism of sexual harassment accusers and rallied support for the accused. As a result, overall support for the grass-roots movement has ebbed. #MeToo was launched in October, 2017 after actress Alyssa Milano issued a tweet asking her followers to reply “me too” if they had been sexually harassed or assaulted.
The first survey, conducted by YouGov and the Economist, revealed 18% of Americans now think false accusations of sexual assault are a bigger problem than attacks that go unreported or unpunished, compared with 13% one year ago. “Surprisingly, these changes in opinion against victims have been slightly stronger among women than men,” the Economist noted (1).
Morning Consult did a second study that found 57% of U.S. adults say they are equally worried about men facing false allegations of sexual assault as they are about women facing sexual assault. Overall support for the #MeToo movement has dropped 2% over the last year, the survey found (2).
A third poll by NPR and Ipsos found 49% of Americans believe the #MeToo movement has gone too far. These persons cited the problem of accusations ruining persons’ careers, and the tendency for some to claim sexual “harassment” for behavior that doesn’t rise to that level. 79% said persons accused of such offenses should be afforded the benefit of the doubt (3).
These concerns are highlighted by the case of a 9-year-old boy who sent a note to a female student that said, “I like you. I like your hair because it is not sloppy. I like your eyes because they sparkle like diamonds.” The words were accompanied by a heart-shaped figure. The boy was sent to the principal’s office, and may face charges of sexual harassment (4).
SAVE emphasizes that workplaces should afford a safe environment for all persons, and complaints of sexual harassment should be taken seriously. The principles of fairness, due process, and the presumption of innocence should apply in such cases.
SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and sexual assault: www.saveservices.org
It will pay attorney’s fees as well, once they are assessed
Title IX proceedings sometimes traumatize accused students so much they attempt suicide.
This happened to a male student at Cornell University, who formally accused his sex partner of sexual and physical assault before she filed a Title IX complaint against him.
Cornell judged “James Doe” responsible based on the testimony of his accuser’s non-eyewitnesses; redacted information from Doe’s complaint, without his permission, that contradicted his accuser’s testimony; and refused to investigate his allegations, he claimed in a federal lawsuit.
Though Doe won an appeal of his temporary suspension, another official resurrected the charge with no warning – after he’d been diagnosed with “severe anxiety and major depressive disorder.” He attempted suicide the same day.
A year and a half later, Cornell and Doe have reached a settlement where the Ivy League university will pay him $125,000 to drop the litigation. This is before attorney’s fees, which have yet to be assessed and which Cornell will pay to Doe’s lawyers once the judge approves them.
Brooklyn College Prof. KC Johnson, who closely tracks Title IX litigation, says the settlement occurred before the presiding judge had handed down any order.
Cornell’s options for responding to the suit were limited from the start because of its federal appeals court, Johnson told The College Fix in an email. It could have filed a motion to dismiss, “but it would have had no chance of prevailing” under the 2nd Circuit’s precedentagainst Columbia University, which involved similar factual allegations.
Syracuse University and Hobart & William Smith College, both in New York, learned this the hard way when their motions to dismiss in similar cases were rejected, Johnson said. The 2nd Circuit precedent is also why Yale has not attempted to dismiss the high-profile lawsuit by its former basketball team captain, Jack Montague.
“Several months of the Cornell case were consumed in mediation, though the case technically was pending throughout,” Johnson said.
Andrew Miltenberg, attorney for Doe, told The Fix he couldn’t immediately explain the action in the case since its filing a year and a half ago.
According to a recent Reason headline, proposed changes to the Department of Education’s (DOE) Title IX require “due process protections…for individuals accused” of sexual misconduct on campus. A CNN article on Kavanaugh-accuser Christine Blasey Ford states, “#MeToo is not revenge: It is a timely search for due process” for accusers.
“Due process” is a battle cry throughout the news and across campuses. Conservatives demand due process for those accused; the left insists upon it for accusers. The term is not a weaponized talking point, however; it is a principle of justice.
What is due process? Why it is essential to justice?
In common parlance, due process is the fair treatment that every individual deserves from law enforcement and the judiciary. Accusers should be heard without bias; defendants should be judged on the evidence and through unbiased procedures. In America, the legal meaning of “due process” derives from the common law tradition, the Bill of Rights, laws and court precedents. The protections include “innocent until proven guilty,” the right of cross-examination, legal representation and transparent proceedings.
Because the protections apply to defendants, however, due process is often said to obstruct justice for accusers. Thus, the pendulum swings far in the direction of protecting an accuser. Campus hearings are an example. They stress the need to believe an allegation, which is captured by the phrase “believe the woman” because women reputedly do not lie about sexual assault. Campus hearings invert due process protections. The defendant is guilty until proven innocent; he is denied legal representation and the right of cross-examination; standard rules of evidence are abandoned.
But automatically believing an accuser devolves to abandoning the judicial process altogether. If an accusation is automatically true, then there is no need for investigations or courts to uncover the facts. #MeToo-style public “prosecutions” are a large step in that direction; accusations are tried in the court of human opinion, where they are immediately believed. The accused people are guilty before a trial or any other unbiased investigation.
“Believe the accuser” runs up against human nature. People are not only fallible, but they also capable of bad behavior, such as lying.
Due process acknowledges that accusers can be mistaken, confused, or lying. It attempts to separate evidence from error and malice in order to judge an accused on the former. This is especially important for cases in which a guilty judgment can ruin a person’s life. Third parties — judges, juries, the public — simply cannot know the truth without facts that are evaluated by reasonable standards, such as placing the burden of proof on the person making an accusation.
The dynamic is not an indictment of an accuser who may be honestly wrong about an identification or other key evidence. It happens with some frequency. The mission of the Innocence Project is “to free the staggering number of innocent people who remain incarcerated,” mostly due to errors.
The organization has freed “more than 350 wrongfully convicted people based on DNA.” Confusion is also a large factor, especially in cases involving drugs or alcohol. Differing interpretations can lead to plausible “she said/he said” scenarios through which objective third parties need to sort.
Some allegations are also lies, of course. In a recent Connecticut case, Nikki Yovino was sentenced for falsely accusing two student football players of rape. One of the accused stated, “I lost my scholarship, my dream of continuing to play football and now I am in debt $30,000.”
Western jurisprudence, especially due process, is organized around the reality that people can be mistaken or lie. That’s why a defendant is presumed innocent until proven guilty, with the burden of proof falling to the accuser. The right to face an accuser means an accuser must stare a defendant in the eye, which removes the anonymity through which lies flourish.
The necessity of due process is often contested on the grounds that false allegations are rare. What is the rate? No one knows for sure, but early FBI sources place the rate of false accusations at about 8 percent. Even if it is far lower, however, every defendant deserves a fair trial. Statistics do not alter the fundamentals of justice.
It must be noted: Accusations in the news or on campus are not criminal cases in which due process is mandated. That is true. But traditional due process applies to criminal rather than civil cases or procedures for a reason: criminal procedures have a huge potential to destroy people’s lives in a manner that cannot be remedied. The same is true of cases in the court of public opinion or other unofficial hearings. The “guilty” can lose the accomplishments of a lifetime, with no chance for redemption. “Guilty” students can lose their futures; they are expelled and their records tagged in a way that prevents them from enrolling elsewhere, receiving licenses, or pursuing many desirable professions.
Accusers must be heard. But they should embrace due process and invite a clear spotlight to be shone on every claim they make. The worst barrier to belief for an accuser are false charges brought by others in the past; the public remembers. By contrast, every time an accusation is treated seriously enough to be objectively assessed, the path of the next accuser — female or male — becomes easier.
Wendy McElroy is a research fellow at the Independent Institute and the author or editor of nine books on women’s issues, government and liberty.
Last week, a federal judge in New Mexico allowed a student’s due process lawsuit to proceed against the University of New Mexico and its president, but dismissed his claims against several individual administrators, holding that because the “contours of [the plaintiff’s] due process rights were not clearly established,” the university administrators who punished him were entitled to qualified immunity.
In his opinion, Judge James Browning made some of the strongest and most remarkable statements to date in favor of a student’s right to due process in a campus proceeding.
The student-plaintiff, known in the pleadings only as “J. Lee,” alleged that the process used by the University of New Mexico to find him responsible for sexual misconduct violated his constitutional right to due process. When the university moved to dismiss his claim, Judge Browning found that Lee had indeed stated a plausible due process claim. Among other things, the court held that:
“Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness.”
“[P]reponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
“[The fact] that UNM provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.”
On the question of cross-examination, this is the latest in a growing line of cases holding that cross-examination is essential to due process when credibility is at issue. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”
On the second point — the evidentiary standard — this opinion is remarkable. It is, to my knowledge, the first federal court decision explicitly stating that “preponderance of the evidence” is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of “a permanent notation” on the plaintiff’s transcript in reaching this finding. FIRE has long argued that “[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,” and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.
Judge Browning also noted the difference between UNM’s process for students accused of non-sexual misconduct, who get an evidentiary hearing, and its process for students accused of sexual misconduct, who do not. This phenomenon is hardly unique to UNM; a disturbing number of universities offer fewer procedural protections to students accused of sexual misconduct than students accused of non-sexual misconduct. Other schools that provide students with a meaningful hearing in non-sexual misconduct cases, but not in sexual misconduct cases, include Brown, Cal Tech, Dartmouth, Georgetown, Notre Dame, Princeton, Penn, Tufts, UC Berkeley, UCLA, the University of Virginia, and Washington University in St. Louis, to name just a few. (For more information on procedural protections at these and other schools, stay tuned for FIRE’s second annual report on campus due process, coming out later this fall.)
Despite these findings, however, Judge Browning dismissed Lee’s claim against the individual administrators on grounds of qualified immunity. Under the doctrine of qualified immunity, state officials and employees are entitled to immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
This result, while disappointing, is not altogether surprising. Until the recent deluge of lawsuits brought by students accused of sexual misconduct, the law surrounding students’ due process rights in campus proceedings was not very well fleshed-out. Recently, a growing number of courts have begun to clarify the scope of these rights, but Judge Browning clearly felt that the parameters were still insufficiently clear to hold university administrators personally liable. Hopefully, the many additional rulings certain to come in the hundreds of accused-student lawsuits still pending will help increase certainty and clarity. And in the meantime, Lee’s due process claim against the university itself continues on.
The phrase ‘trauma-informed’ has a worthy provenance; it has been used for quite some time to describe approaches used to improve communication with children who had suffered from known traumatic events, such as accidents, fire, death of family members, divorce, etc. Such children may withdraw into a shell, possibly to protect themselves from further trauma. Encouraging them to come out of that shell can be very beneficial.
But that is far removed from the current advice to be trauma-informed in the investigation of alleged sexual assault in all the forms for which the term is used today. In that context the aim is not to draw a traumatized person out of her (or his) shell: the aim is to gain evidence that trauma was indeed inflicted. Thus the phrase ‘trauma-informed investigation’ is fatally flawed: it insinuates the very infliction that the investigation is supposed to confirm or find false. Not only that, the presumption of (inflicted) trauma implies a victim on whom the trauma was inflicted. Moreover, these insinuations are planted before any investigation is begun – that makes them very resistant, or possibly even immune, to challenge. Finally, and most invidiously, the approach is designed, not to find facts, but to find a perpetrator, and punish him.
A recent article by Ms. Mangan (1) refers to an event — understandably with a paucity of detail — for which police declined to press charges, for lack of evidence. The article notes that subsequently a panel from Georgia University – ‘trained in the neurobiological effects of trauma’ reached a different conclusion. What that conclusion was, the article does not say, but it notes that ‘the university scheduled a hearing, and the student accused of assault agreed to leave the institution’. Here the narrative becomes disturbingly vague: what conclusion did the Georgia panel reach, and why did the ‘accused’ student leave? The article is silent on both questions, but quite effective at suggesting how readers should answer them.
Similarly disturbing questions arise from a reading of an item far removed from the Chronicle. In 2016, an organization named the Association of Title IX Administrators (ATIXA) published a White Paper under the title “The Seven Deadly Sins of Title IX Investigations” (2). The writers were careful to place occasional laudable phrases in the text, but those do not hide some seriously biased presumptions: “If they made what you think was a poor decision, they’re probably already thinking the same thing. That sense of self-blame won’t help you uncover the real facts, and you should try to help them past it. People can make poor choices and still be victimized.” One wonders what those ‘real facts’ are, and how they might be discovered in any ‘he said – she said’ event. Granted, it may be understandable that administrators charged with dealing with fraught situations will try to make themselves appear capable and indispensable. But integrity is an unforgiving taskmaster.
Elsewhere in the ‘Seven Deadly Sins’ one can read: “Similarly, a sound investigation must actively gather and accumulate information to tell a story.” Do the authors advocate writing a story, or compiling a factual report?
In her article, Ms. Mangan refers to two persons she clearly regards as experts, Mr. Jim Hopper, and Ms. Kimberly Lonsway. At first sight, the credentials of Mr. Hopper appear reassuring, if not impressive. Mr. Hopper teaches at Harvard Medical School and presents himself as an expert on psychological trauma who travels the country training campus officials and others in how to conduct trauma-informed investigations. But the CV maintained by Mr. Hopper (3) reveals some telling aspects. Mr. Hopper earned a PhD. in clinical psychology in 1997, and has held a string of appointments in various teaching institutions, with his current affiliation with Harvard Medical School dating from 2006. None of these appear to be, or to have been, faculty or tenure-track appointments. Nor do they appear to be focused on research. Then comes a long list of lectures, presentations, and training sessions, the titles of which are curiously monotonous. Mr. Hopper appears to spend much of his time expounding his views on invitation, but does not reveal much participation in professional meetings that foster evaluation and challenge. Thus it appears that Mr. Hopper gives himself little opportunity to offer his views for analysis and criticism.
Furthermore, the model presented by Mr. Hopper has been carefully scrutinized by Ms. Emily Yoffe (4), and a response by Mr. Hopper to that critique (5) is considerably less persuasive than what Ms. Yoffe writes.
Then what is the model that Mr. Hopper so eagerly advocates? It rests on claims that traumatic experiences can (and do) release several brain hormones, and that those hormones can have wide-ranging effects, such as garbled and incomplete memories, ‘freezing’, and others. The release of brain hormones can be experimentally demonstrated, but what they do is still difficult to study. Moreover, Ms. Yoffe notes that many of the claims made by Mr. Hopper are at odds with other neurobiological observations. Ultimately, what Mr. Hopper advocates may be summarized by a short statement: if the ‘victim’ can present a lucid account, that makes that account credible. If the ‘victim’ cannot present a lucid account, that failure is itself evidence for inflicted trauma.
When Mr. Hopper was asked to respond to the open letter presented by SAVE early in February 2018 (6) he commented that the letter was ‘misleading and unfortunate’. But he did not find it necessary to explain in what sense the letter was misleading; one would expect a trauma expert to stand ready to deliver more than ‘unfortunate polarization’ as the grounds for his casual dismissal.
Mr. Hopper does have eager followers. Not only is he invited all over the country by police and academic campuses: Ms. Lonsway gushes that: “What’s new is that now, we understand the neurobiology behind it” (7). Ms. Lonsway earned her PhD. (8) with a thesis on the effectiveness of police interrogations; it is not clear how that would give her standing to judge the neurobiology and neuropsychology claimed to support the model of Mr. Hopper.
There are more than a few troubling similarities between the activities of Mr. Hopper and pediatric nurse Susan Kelley, who played a key role in the child abuse drama at Fells Acres some thirty years ago (9). Ms. Kelly was a major interrogator of the children who had been at the Fells Acres school. As she describes her approach, a child who fails to deliver what the interrogator wants to hear is ‘not yet ready to disclose’. In other words, only those statements that are acceptable to the interrogator are accepted and admitted into the record. The Fells Acres affair, and several similar cases, are described in a book by Dorothy Rabinowitz: No Crueler Tyrannies; she earned a Pulitzer prize for her reports in the Wall Street Journal on those cases (10). Among those tyrannies was the imprisonment of Gerald Amirault for 18 years (11), before he was released. Almost all the other convictions described by Ms. Rabinowitz were vacated. Of course none of the children were ever imprisoned, but it is fair to say that most, if not all, of them suffered severe and persistent trauma from the false memories implanted in them.
Ms. Kelley, and others like her, became known as people ‘who could get a conviction’. Mr. Hopper, and those who are in thrall to him, appear to aim to earn the same dubious reputation, by subverting a benign-sounding phrase into a wiccan-hunt, with little regard for justice or for the Constitution.
Maarten van Swaay retired in 1995 from Kansas State University as Professor Emeritus, after serving for 32 years in the departments of chemistry and computer science. In the latter department he developed and managed a course in ethics for more than a decade. He can be reached at vanswaay@ksu.edu.
Citations:
1: Chronicle of Higher Education, “Trauma Informed” Approaches to Sex Assault Are Catching On. They’re Also Facing a Backlash.
By Katherine Mangan. April 05, 2018. https://www.chronicle.com/article/Trauma-Informed-/243049
2: ATIXA: The 7 Deadly Sins of Title IX Investigations: 2016 White Paper. https://atixa.org/wordpress/wp-content/uploads/2012/01/7-Deadly-Sins_Short_with-Teaser_Reduced-Size.pdf
3: James W. Hopper, Ph.D.: Curriculum Vitae. https://www.jimhopper.com/pdf/DrJimHopperCV.pdf
4: The Atlantic: The Bad Science Behind Campus Response to Sexual Assault, By Emily Yoffe, September 8, 2017. https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/
5: Jim Hopper, Ph.D., Sexual Assault and Neuroscience: Alarmist Claims vs. Facts. Psychology Today, January 22,2018. https://www.psychologytoday.com/us/blog/sexual-assault-and-the-brain/201801/sexual-assault-and-neuroscience-alarmist-claims-vs-facts
6: SAVE: Open Letter Regarding Inequitable Victim-Centered Practices, February 7, 2018. http://www.saveservices.org/wp-content/uploads/Victim-Centered-Practices-Open-Letter-FINAL.docx.pdf
7: Ms. Lonsway, as quoted by Ms. Mangan: “We’ve always known that victims often have certain problems with their statements. They aren’t chronological. They aren’t linear. What’s new is that now, we understand the neurobiology behind it.”
8: Kimberly A. Lonsway, Ph.D. Curriculum Vitae. https://kimlonsway.files.wordpress.com/2017/10/lonsway-cv-10-24-17.pdf
9: Dorothy Rabinowitz: No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times, March 2, 2004, ISBN 978-0-7432-2840-4
10: Ms. Dorothy Rabinowitz is awarded the Pulitzer for Commentary (2001). http://www.pulitzer.org/prize-winners-by-year/2001
The Constitution Doesn’t Stop at the Campus Gates: SAVE Commends Lawmakers for Advancing Free Speech, Due Process Bills
WASHINGTON / July 17, 2017 – Responding to concerns about unconstitutional practices on college campuses, lawmakers in 16 states have introduced 18 bills designed to restore free speech or due process protections to college students. The states are California, Colorado, Georgia, Illinois, Louisiana, Michigan, Nevada, New Hampshire, North Carolina, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin.
SAVE commends the legislators who have championed these bills, and notes the favorable bipartisan support these bills are enjoying.
Among the 18 bills, four already have been signed into law by the governors of Colorado, Tennessee, Vermont, and Virginia. In North Carolina and Rhode Island, bills have passed both chambers and await the governors’ approval.
The free speech bills address a range of First Amendment concerns such campus speech codes, so-called “free speech” zones, dis-invitations of controversial speakers, and other infringements on the expressive rights of students and faculty.
Notable is Tennessee’s Campus Free Speech Protection Act, Senate Bill 723. Signed into law by Gov. Bill Haslam on May 9, the Act provides some of the country’s strongest protections for student and faculty speech on public college campuses.
The due process bills were designed to ensure the availability of active counsel and other due process protections for students involved in campus disciplinary proceedings. Legislators in Georgia, North Carolina, and Utah championed the due process bills in these three states, but those bills did not reach the governors’ desks.
SAVE has drafted a model sexual assault bill titled the Campus Equality, Fairness, and Transparency Act that is designed to encourage law enforcement involvement in campus felony-level crimes, and establishes a range of due process protections: http://www.saveservices.org/sexual-assault/cefta/
Lesson from the UVA Gang-Rape ‘Disaster:’ Due Process Must be Restored for Campus Sex Cases
WASHINGTON / March 26, 2015 – In the aftermath of the recent Charlottesville, Virginia police report of “no evidence” of an alleged gang-rape of “Jackie” during a University of Virginia fraternity party, commentators on all points of the political spectrum are deploring the harmful effects arising from the incident.
SAVE, a national organization working to end sexual assault, has compiled a listing of over 50 commentaries on the Rolling Stone allegations (1). These editorials abhor how the Rolling Stone story has exacerbated rape-hysteria on college campuses, contributed to the wrongful expulsion of innocent college men, injured the reputation of the University of Virginia, wasted scarce law enforcement resources, undermined basic notions of journalistic integrity, and damaged the credibility of women claiming to be victims of rape.
Phi Kappa Psi is currently exploring its legal options to address the damage caused by Rolling Stone. Fraternity president Stephen Scipione noted, “These false accusations have been extremely damaging to our entire organization, but we can only begin to imagine the setback this must have dealt to survivors of sexual assault.”
“For rape victims, the falsely accused, taxpayers, and for UVA administrators, the Rolling Stone piece has been an unmitigated disaster,” notes SAVE spokeswoman Sheryl Hutter. “If we’re going to prevent future rape-hoaxes, college administrators must begin to restore due process to the handling of campus sex allegations.”
A Washington Post report concluded the Rolling Stone account was “a complete crock…built on a mix of naivete and advocacy” (2).
Stop Abusive and Violent Environments is working to promote effective solutions to campus sexual assault: http://www.saveservices.org/
It will pay attorney’s fees as well, once they are assessed