Earlier this week, Tennessee Chancery Court Judge Carol McCoy overturned the University of Tennessee-Chattanooga’s decision to brand one of its students, Corey Mock, a rapist. The case attracted an unusual amount of attention.
Mock had been a star wrestler for the UTC program. His accuser, Molly Morris, had gone public with her version of events at a left-of-center publication. And Mock’s father was fired from his position as University of North Carolina wrestling coach after starting a blog defending his son. UTC claimed that performance issues dictated the decision; the former coach plausibly contended that the university, center of some of the most extreme victims’ rights activism of any campus, retaliated for his position on his son’s allegations. The case is illustrative of three important trends in the contemporary debate: the significance of the “Dear Colleague” letter; the dangers of the “affirmative consent” standard; and the role of athletes.
You can read the decision here.
The specifics of the case are typical; the two students met through Tinder, a social media site, attended a party together, and had intercourse. Both had been drinking. Morris subsequently claimed that she had been drugged—with the implication that Mock had drugged her—but had no medical evidence to corroborate the claim. Six weeks later, Morris filed a sexual assault complaint through UTC’s system. But the administrative law judge who heard the case, Joanie Sompayrac, sided with Mock.
Before 2011, that would have been the end of the case. But the “Dear Colleague” letter from the Department of Education’s Office of Civil rights required colleges to institute a de facto double jeopardy principle, and allow accusers to appeal not-guilty findings. Morris took advantage of this shift, and appealed to UTC chancellor Steven Angle. Angle made no decision, and instead asked the administrative law judge to reconsider the ruling. Sompayrac got the message, and on the basis of the same facts that led her to find Mock not guilty, she then branded him a rapist.
Mock appealed the new guilty finding to Chancellor Angle, but in December 2014, Angle denied the appeal. He did so, however, on a slightly different basis than had Sompayrac—perhaps because he recognized the weakness of a ruling that deemed a student guilty on the basis of the same 49 findings of fact that the same administrative law judge previously had used to find the student not guilty. Angle, for his part, argued that Mock had failed to prove that he had obtained affirmative consent—that is, that Mock, not UTC, had the burden of proof in the initial hearing. UTC hadn’t adopted a “yes means yes” policy, but Angle inferred it through various provisions in the school’s code, and in other writings.
In what appears to be the first decision by a judge confronting affirmative consent head-on, Judge McCoy expressed strong doubts that such a standard ever could be constitutional. UTC’s policy, she noted, “erroneously shifted the burden of proof” to Mock to prove his innocence. As a general rule, McCoy continued, “The ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” How, she wondered, could Mock have defended himself? Through a secret video of the encounter? Such a policy, McCoy concluded, “is flawed and untenable if due process is to be afforded to the accused.”
Finally, one of the general claims about college disciplinary debates is that athletes receive special treatment. That’s undoubtedly true—for men’s basketball players and football players, in some circumstances, if they play for one of the top teams in the ACC, SEC, Big XII, Big Ten, or Pac-12, and if they’re good players. But the vast majority of college athletes are like Mock—participants in non-revenue producing sports. The idea that they receive favored treatment given the current ideological climate on campus, to borrow a phrase, strains credulity.