Hans Bader has a perceptive post analyzing the University of Virginia’s new “affirmative consent” policy. Rather than learning from Rolling Stone and stressing due process, the site of the year’s biggest campus rape hoax has redefined sexual assault to include routine contact that no one off campus would deem criminal conduct. As Bader notes, UVA now “forbids the gradual, step-by-step escalation of intimacy without verbal discussion that is how making out actually happens in the real world.”
Bader’s critique provides a way to look at the latest due process lawsuit, this one filed against Brandeis. This case already had attracted some attention, including a typically one-sided piece in the Huffington Post, which without corroboration contended that the accused student had engaged in an act of retaliation. This is the only public instance of the Office for Civil Rights investigating a school after a complaint filed by an accused student (though the lawsuit suggests there’s one other such Title IX case). You can read the lawsuit here.
The facts of the case differ, and in some aspects dramatically, from most other due process lawsuits, with the possible exception of the Marlboro College case. Unlike most due process suits—which seem to be based on fleeting sexual contact after a night of drinking—the Brandeis lawsuit comes out of a romantic relationship between two males, which lasted nearly two years and in which neither party consumed alcohol during the relationship. Though the couple broke up in summer 2013—at the impetus of the eventual accuser, according to the complaint—they remained friendly for a few months thereafter.
But the friendship deteriorated in fall 2013. Then, in January 2014, the accuser filed the following allegation to Brandeis: “Starting in the month of September, 2011, the Alleged Violator of Policy had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.” Brandeis responded by placing the accused student on what the complaint describes as an “emergency suspension,” though no inquiry had occurred and the filing itself contained no specific allegations.
Even though the university had a functioning disciplinary hearing process at the time, Brandeis instead investigated the accuser’s remarkably non-specific complaint through a single investigator, a former OCR employee named Elizabeth Sanghavi. (Sanghavi’s CV lists herself as a co-author of this article on the “Dear Colleague” letter.) Sanghavi interviewed both parties—the accuser described her as “very sensitive”—and a handful of others; according to WBUR, she elected not to record these interviews, for reasons that remain unclear. The accused student had no right to counsel, and no right to see his accuser’s testimony, much less to cross-examine the accuser. None of the interviews with Sanghavi occurred under oath. The accused student received no detailed allegations against him until his first interview with Sanghavi.
Under the pre-“Dear Colleague” letter disciplinary process, Brandeis used a “clear and convincing” evidentiary threshold, but the accused here faced the preponderance of evidence (50.01 percent) standard. Though Sanghavi prepared a report based on her interviews, bizarrely, Brandeis policies have the accused student “listen to the [student affairs officer’s] summary of findings and engage in dialog with the [officer] about these findings.” The Brandeis procedures offer no explanation as to why the school doesn’t provide accused students this obviously relevant written material during the process; Brandeis gave the accused student the written report only once it had closed the process and branded him a rapist, and it still has never produced Sanghavi’s notes.
In her findings, Sanghavi concluded that the first time the two students had slept together, the accuser hadn’t given affirmative, verbal consent, and therefore the accused was guilty of sexual assault. As the accused’s attorney, Patricia Hamill, observed, “It defies reason for the Special Examiner to have concluded that John’s ‘first move’ leading to a 21-month consensual relationship was a sexual assault.” Though the two students regularly slept together during this 21-month period, Sanghavi also found the accused guilty of nonconsensual sexual conduct because he sometimes awoke the accuser with a kiss. By this peculiar standard, virtually every long-term couple in the country consists of at least one rapist, and it seems hard to imagine that the accuser wasn’t similarly guilty of such behavior. This is precisely the sort of absurd standard about which Bader writes.
Despite having branded the accused a rapist, Brandeis (in what could only be an implicit recognition of the flimsy nature of the allegations) punished lightly, through a Disciplinary Warning, with no suspension. But as the complaint points out, this was nonetheless a life-altering decision: “[The accused] will now have to disclose, and defend himself against, his deeply blemished University record and reputation to every law school and professional graduate school to which he applies, to his political colleagues, to prospective employers and, should he run for public office, to the electorate.” And he certainly can’t count on anyone he has to tell understanding the strange nature of Brandeis’ process and definition of sexual assault. Indeed, according to the complaint, the accused already lost an internship and job offers as a result of Brandeis’ ruling, which was leaked to his potential employers.
Who Needs Due Process?
The Brandeis case resonates for two reasons beyond the specifics of events. First: perhaps the most typical defense of OCR is that the evisceration of campus due process is tolerable, since the worst fate the accused will suffer is expulsion from college. In this case, the accused wasn’t even expelled—but as is clear from the filing, he’s suffered significant consequences, and is likely to do so for years to come, absent a court ruling overturning Brandeis’ action. His fate, therefore, is a reminder of the moral obligation of colleges to do everything they can to get the decision correct—something that, sadly, occurs at very few universities today—before branding one of their students a rapist.
Second, the hyper-technical nature of Brandeis’ findings might well preview a next wave of cases, as more and more states move toward an affirmative consent standard that deems a huge swath of common romantic activity as sexual assault. As the filing in the Brandeis case makes clear, if the accuser in this case committed sexual assault, so have hundreds of thousands of other college students, all over the country.