All posts by Ashe Schow

Three Men Unfairly Branded as Campus Rapists

This past weekend, Fox News ran a special report about how colleges and universities across the country are handling sexual assault. The documentary (in which I appeared) ran counter to the prevailing narrative that schools are hotbeds of sexual assault where accusers aren’t taken seriously.

The report, hosted by Martha MacCallum, follows the stories of three men accused of sexual assault and the way they were branded as rapists despite evidence to the contrary in a culture that says we should believe all accusations regardless of merit.

“We’ve long heard that government is best kept out of the bedroom, but as it turns out, in colleges across the nation, government is insisting that it be referee in life’s most intimate moments,” MacCallum says at the beginning of the report. ”

Case One—uh-oh, a Piece of Gum. MacCallum detailed the story of an accused student at Occidental College, whose face was hidden on camera and who was referred to as John Doe. John Doe and his accuser, referred to as Jane Doe, had both been drinking. They were separated at one point but exchanged phone numbers and began texting. John invited Jane back to his dorm and she found her way back, but not before vomiting in a hallway.

She returned to John’s dorm and the two had sex. The next day, they discussed the situation for several hours and decided to just be friends. Jane would eventually speak about her misgivings over the evening to the school’s sexual assault advocate, who appears to have convinced her she had been raped. Jane filed a report with police, who determined that both students were drunk but neither was raped. Jane then went to administrators at Occidental, who initially agreed with the police.

Related: U. of Michigan Screws Up in ‘Rape’ Case

Occidental would then review the case and reverse its position without any new evidence. Suddenly, John was found responsible for sexual assault and expelled. One of the major pieces of “evidence” used to determine his guilt was the claim that he had given Jane a piece of gum when she went back to his room.

“Because I had given her a piece of gum I somehow should have known she was – ‘incapacitated’ was the word [Occidental] used,” John told Fox News. “I don’t even remember giving her a piece of gum.”

Asking for gum prior to an intimate situation is commonplace. Using that as evidence that John should have known she was too drunk (and not merely concerned she had bad breath, say, from eating a garlicky dinner) would turn a lot of consensual encounters into sexual assault.

The documentary also discusses how we got to the point where college administrators are adjudicating felony sexual assault. It all started with a letter from the Department of Education’s Office for Civil Rights. That letter was not subject to congressional approval or a proper review, yet it placed financial burdens on colleges to devote time and resources to creating pseudo-courts.

MacCallum talked to Russlyn Ali, the woman who wrote the “Dear Colleague” letter, and asked her if it was just a guidance document or whether it had “teeth.” Ali contradicted herself from one sentence to the next.

Related: The Odd Sexual Accounting at Yale

“If colleges and universities don’t comply with the nation’s civil rights law, their federal funding can be withheld,” Ali said. “The guidance though, was exactly, Martha, as you indicated, it was guidance.”

But the letter altered the civil rights law to force colleges to adjudicate these crimes or risk losing federal funding. Ali can’t have it both ways.

Case 2—Columbia’s Mattress Girl. The report also walked through two other cases of accused students — Paul Nungesser of Columbia University and Corey Mock of the University of Tennessee-Chattanooga.

Nungesser was accused by Emma Sulkowicz, who became famous after dragging her mattress around campus in protest of the school not expelling Nungesser. Columbia found him “not responsible” for brutally raping her. Her friends also tried to accuse him of various sexual misconducts (an ex-girlfriend said he pressured her into sex during their relationship, another woman said he kissed her at a party without her consent and a man said Nungesser tried to grope him one night). He was found not responsible for the claim from his ex-girlfriend and the male student. He was found responsible for the nonconsensual kiss but that decision was overtur\ed on appeal.

Related: Did Mattress Girl Lie?

Police also questioned him about Sulkowicz’s claims but didn’t pursue an investigation.

MacCallum spoke to Sen. Kirsten Gillibrand, D-N.Y., who has been one of the leading advocates for campus sexual assault policies. MacCallum asked Gillibrand what she thought of the multiple investigations into Sulkowicz’s claims and the multiple findings that he was not responsible.

“I believe Emma,” Gillibrand said.

That’s a frightening thought. Nungesser produced Facebook messages showing Sulkowicz continued to talk to him — at times even lovingly — after he allegedly raped her. This was not a woman who was indebted to him as a wife or girlfriend. The two weren’t hanging out regularly after that, as Nungesser had moved on. A few months after the encounter, Nungesser sent Sulkowicz a birthday greeting. Sulkowicz replied the next morning: “I love you Paul.”

Yet months later, she was accusing him of rape and gained international fame for doing so. Meanwhile, Nungesser — innocent from multiple investigations — would be branded a rapist and subjected to death threats and isolated on campus.

Nungesser is suing Columbia for its complicity in Sulkowicz’s art project, which was set up to intimidate her fellow classmate.

Related: Amherst: No Pretense of Fairness

Case 3—A Tennessee Judge Appalled. The final story detailed by MacCallum involved Corey Mock. He was expelled after a sexual encounter with a fellow student, but a judge overturned the college’s decision because the burden of proof was unfairly placed on Mock. Mock was found responsible by his college in part because he couldn’t provide evidence that he had obtained consent. Essentially he was forced to prove an assault didn’t occur rather than having his accuser, Molly Morris, prove the assault did occur.

A female state judge found the university “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation.”

Despite this victory, Mock will forever live with the accusation. Despite being found repeatedly not responsible, Nungesser continues to be branded a rapist. And despite text messages suggesting consensual sex, John Doe was still expelled and still struggling to get past the accusation.

MacCallum said the federal government and colleges are treating due process rights as “a pesky nuisance,” and suggested we make absolutely sure we understand the problem we’re trying to solve.

Related: Ten Campus Rapes, or Were They?  

She reminded viewers that women can misremember, misinterpret, lie, seek revenge and feel regretful — “not because they’re women, but because they’re human beings.”

“Most of us have sisters or daughters, and we want to make sure they’re safe, but we also have brothers and we have sons,” MacCallum said. “Advocates say: ‘We’ve got to think of the victim. We’ve got to do more for the victim.’ And they are absolutely right. We do have to think of the victim. That’s why in every case the first question should always be: Who is the victim?”

Because with every accusation, there is a victim. It might be the accuser, but it might be the falsely accused. It could be both students, who each made a poor decision. Colleges are currently — at the direction of the federal government — implementing procedures that make false accusations far more likely and more acceptable. Accusers are to be “believed” or else the school will face a federal investigation. Couple that with policies stating no accuser can be punished for coming forward, and schools are creating a recipe for abuse.The truth, above all else, should be the desired result in such cases. Sadly, colleges have every incentive right now to ignore the truth and find accused students responsible in the name of politics.

Reprinted with permission from the Washington Examiner.

Watch out for Anti-Rape Campaigns Run by Elitists

One major and negative narrative about the justice system is that wealthy and well-connected people get to live by different rules than the rest of us. One can find examples both reinforcing and undermining this, but the prevailing narrative remains.

If one wanted to find a blatant example of wealthy, privileged people getting their own justice system they can bend to their will, look no further than the anti-campus sexual assault movement. Born of false statistics and exaggerated (or wholly made up) victimhood, the movement has created (and seeks to maintain) a separate court system for those who can afford college.

What we’re left with is a movement that seeks “easy justice for me, but not for thee.” It’s a slap in the face to the millions of Americans who are at a higher risk for sexual assault and who cannot afford college, many of them poor, minority women.

This elitist view was confirmed by Connecticut State Sen. Mae Flexer, D-Killingly, who plans to re-introduce an extreme campus sexual assault bill (which had previously failed) in the legislature. Flexer defended the separate justice system against accusations that laws were being created that treated college students differently than the general population.

“Flexer countered that colleges and universities are privileged environments that demand a higher set of standards,” the Connecticut Mirror reported. “She said state law is integral to protecting students on campus, and encourages colleges and universities to create better policy.”

Privileged people getting privileged justice — how progressive.

And let me be clear about what’s meant by “justice” in this context. It’s not the “justice” of having an allegedly violent person put on trial then, if found guilty, put in jail and removed from society so that he can’t rape or sexually assault other women. (Most of these accusations are made by women against men, though there has been at least one between two women and another between two men.) No, this is the “justice” that comes from accusers who regret a sexual encounter or past relationship and don’t want to see the guy again, so they lodge sexual assault accusations against him to get him expelled.

Not all accusations fit this narrative, to be sure. Sexual assault does happen, but the movement has been co-opted by grievance culture, where regretted encounters and innocent everyday behavior is elevated to the level of criminal activity if the wrong person is involved.

And the beneficiaries of this grievance culture tend to be white, wealthier women. Poor minority women must contend with an allegedly “violent criminal justice system.” What makes the criminal justice system “violent” (defined as “using or involving physical force intended to hurt, damage or kill someone or something”), is not explained. If “violent” means using facts and evidence to investigate a crime and not ruining someone’s life based on a shaky accusation, then yeah, I guess the criminal justice system is “violent.”

Feigning empathy for minority women, a writer for Know Your IX — a group dedicated to ensuring colleges continue using kangaroo courts to adjudicate felonies — explained that sexual assault accusers don’t want to go to the police. She wrote that for minority women especially, going to the police is troublesome.

“For others who are undocumented, gender nonconforming, or of color, going to the police often means risking suffering more violence, like deportation, police brutality, or criminalization themselves,” she wrote.

K.C. Johnson, co-author of a book about the Duke Lacrosse rape hoax, explained to the Washington Examiner how such a claim, coupled with the creation of campus kangaroo courts, hurts the women most likely to be sexually assaulted.

“To the extent they really believe this; and given the [Bureau of Justice Statistics numbers] that show women 18-24 who aren’t college students experience higher rates of sexual assault, shouldn’t redeeming the criminal justice system be the focus?” Johnson asked. “Instead, the message seems to be: Survivors who aren’t able to afford or otherwise attend college are out of luck.”

And if minority, non-student victims are “out of luck” because they don’t have access to the kinder, gentler justice system that allows them to get rid of the accused student with just a say-so, minority men are at a disadvantage whether they’re in the privileged world of college or not.

“But nothing so malign need be at work when black men show up in the dock: Morning-after remorse can make sex that seemed like a good idea at the time look really alarming in retrospect; and the general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them,” wrote Harvard professor Janet Halley. “Similar dynamics affect gay men, lesbians, and trans individuals: Being attracted to them can so shock some people that the easiest way back to equanimity is to attack them.” (Emphasis original.)

Halley also described her time as a campus adjudicator and how Title IX — the law used to dumb down sexual assault from a crime to a “gender equity” problem — does not ensure racial equity.

“Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents, but the institution cannot ‘know’ this because it has not been thought important enough to monitor for racial bias,” Halley wrote.

The campus sexual assault debate amounts to privileged people wanting to play by different rules — rules that do not require facts or evidence. Activists claim that the kangaroo courts were created in part because the actual courts don’t find enough people guilty (it’s tough to make a case without evidence, but on college campuses, that becomes a feature, not a bug) and are hostile to accusers.

If that is indeed the case, then the criminal justice system needs to be reformed. The answer is not to throw our hands up and create a whole new “justice” system. Ironically, activists claim that the problems with campus courts should be fixed while maintaining those campus courts, instead of disbanding them and returning to the actual courts.

But fixing the “problems” with criminal and civil courts would require an evisceration of constitutional due process rights — something that has been allowed in campus courts but would be impossible to do in actual courts.

And thus, activists want to continue to use a justice system that bends to their will, rather than accept the fact that they’re not all victims.

This commentary was published originally on October 15 in the Washington Examiner and is reprinted with permission.