Tag Archives: campus rape

Why ‘Yes Means Yes’ Rules Can’t Work

Despite criticism from all overthe politicalspectrum, so-called “yes means yes” sex rules are on the march. After California, New York Gov. Andrew Cuomo signed a law on July 7 requiring all of the state’s universities to adopt an affirmative consent policy for sexual assault cases. Similar rules are set to go into effect at the University of Minnesota, though their implementation has been delayed by civil liberties concerns; New Hampshire and New Jersey are considering legislation that would tie funding for colleges to the use of affirmative consent standards. Meanwhile, reports from the field—and even the words of the people who champion these policies—leave little reason to expect anything but disaster.

Maybe an App Will Help

Take, for instance, a recent piece by Amelia McDonnell-Parry on the feminist site The Frisky, vehemently objecting to several new smartphone apps targeted to college students that purport to facilitate affirmative consent—for instance, by allowing partners to record a 20-second video stating their mutual consent to sex. McDonnell-Parry agrees with Apple, which has barred one such app as “icky.”  (Of course, many feel that way about “affirmative consent” rules in general.) She is particularly irked that the app is intended to provide proof of consent—which, evidently, amounts to supporting the heresy that women may lie about rape and that men can legitimately worry about false charges. McDonnell-Parry also argues that a recorded “Yes” should not be treated as final: “After all, consent, once given, is NOT locked in stone, and pushing the idea that the ‘consent discussion’ is over once someone has said ‘Yes,’ is downright dangerous.”

Interestingly, McDonnell-Parry believes that, contrary to what campus policies and consent workshops typically teach these days, agreement to have sex can be expressed through “indisputably consenting body language” as well as words. It does not seem to occur to her that, even aside from deliberate lies, someone who regrets a sexual encounter could genuinely come to believe that she (or he) never gave consent. We are thus back to a central problem with affirmative consent policies, even aside from the intrusive regulation of how people conduct themselves in sexual situations: proving that active consent was obtained is virtually impossible. Some supporters of these policies openly admit that they have no idea what kind of proof a wrongly accused student could offer to clear himself (“Your guess is a good as mine,” California Assemblywoman Bonnie Lowenthal told the San Gabriel Valley Tribune last year). Others, such as McDonnell-Parry, openly say that there is no need for proof since false accusations are not an issue.

The Times Weighs in

Meanwhile, the New York Times, which has consistently supported the campus rape crusade, has a new report intended to show an affirmative consent success story focusing on the University at Albany, a part of SUNY. Author Sandy Keenan writes, evidently with a straight face, “The consent definition within [the new law], officials say, is not intended to micromanage students’ sex lives but to reorient them on how to approach sex and to put them on notice to take the issue seriously.”

Many students, Keenan acknowledges, are resistant to being “reoriented.” Carol Stenger, director of the university’s Advocacy Center for Sexual Violence, laments that “men and women think the situation is a wash when both are inebriated” and that it “drives [her] crazy.” (Stenger never explains why they are wrong.)  The male student at the center of Keenan’s article, junior Tyler Frahme, initially complains that affirmative consent policies are not “gender-neutral” and “cast men in a predatory light.” However, his friend Jill Santiago, who has organized sexual assault prevention training, tells him that “if guys realize they have to ask and get permission … this could wind up protecting everyone.” (That sounds suspiciously like the ultimate heresy: suggesting that men need to be protected from false accusations.)

A Little More Comfortable

At the end of the article, Keenan reports that when she called Frahme about a month later, he told her that, to his own surprise, the policy has changed his behavior and he is now “practicing consent almost religiously.” Specifically, he checks for consent—with questions like “You O.K. with this?” and “Do you still want to go ahead?”—“once or twice during sexual encounters with women he knows well, and four or five times during more casual or first-time hookups.” And how’s that working? Frahme tells Keenan that “it’s getting to be a little more comfortable,” which is hardly a ringing endorsement; however, he also reports that one first-time partner thought his questions were a devious way of manipulating her into bed. Assuming that Frahme wasn’t pulling Keenan’s leg—just how many women is he talking about over a one-month period?—this raises the disturbing possibility that questions intended to elicit consent could be construed as a form of sexual pressure.

Keenan’s article, which also includes interviews with several young women, does contain one genuinely disturbing account of campus sexual violence. One of her female interviewees, a senior, told Keenan that her only sexual encounter during her four years at the school turned disastrous when her male partner became too physically aggressive and domineering, ignored her request to stop and her attempt to push him away, and covered her mouth with his hand as he forced himself on her. Dealing with this kind of sexual assault, in which the evidence often comes down to her word against his, presents a difficult challenge. But “consent policies” will do nothing to help: a man who is willing to physically coerce a woman into a sexual act, ignoring her verbal and physical resistance, won’t hesitate to claim that she verbally consented.

The Story of Tim

The type of male student most likely to be ensnared in “affirmative consent” policies, and the type of incident likely to be reclassified as non-consensual, is illustrated by a revealing story on Cracked.com, a website oriented toward young adults that combines a hip style with leftist cultural politics, titled “5 Things I Learned Committing A Campus Sexual Assault.”

The article tells the tale of “Tim,” a student who approached the website to tell the story of how he committed a sexual assault (the details of which were apparently confirmed by his university). During the summer, between semesters, Tim and his college friend “Vicky” went out for a night of bar-hopping during which they had four or five drinks each, held hands and engaged in sexual banter, stopped briefly at a sex shop, and then went to Vicky’s place where they sat down on the couch to watch DVDs with Vicky’s head resting on Tim’s chest. At some point Tim began rubbing Vicky’s back, then moved his hand down underneath the waistband of her jeans, encountering no objection—indeed, he thought she felt her shift toward him—and proceeded to stroke her breasts over and then under her shirt. According to the article, “This all went on for an hour or so” before Tim hugged Vicky good-bye and went back to his own room.

The next day, Tim was shocked when a friend of Vicky’s confronted him and told him that “people had gone to jail for doing what he’d just done.” While Vicky never went to the police (and it’s extremely unlikely that the police would have taken such a case), she did file a complaint with the college. Tim was found responsible, and while his only punishment was a reprimand, his life on campus has been turned upside down by the requirement to stay 50 feet away from Vicky.

According to Vicky, the reason she didn’t rebuff Tim is that she had dozed off, woken up to find Tim touching her, and “froze in fear.” This claim seems extremely far-fetched, given the intimate situation and the lack of any indication that Tim might be violent. (Since Tim does not sound like a sociopath, it also seems extremely unlikely that he would not notice Vicky was frozen stiff.)  If grown women are so fragile and so terrified of men, that’s a rather depressing statement about prospects for gender equality.

It’s hard to tell what actually happened in this case, especially since Tim, who is racked by guilt, is extremely anxious to avoid anything that may smack of “victim-blaming.” It may be that Vicky didn’t quite know how to tell him to stop and the incident was a genuine misunderstanding. It may be that she was more willing than she admitted to herself; Tim’s narrative repeatedly stresses that she was a “good girl” who would never agree to sex. (Both of them are religious, and the convergence of “progressive” sexual politics with old-fashioned sexual guilt is one of the curious aspects of the piece.)

Cracked.com author Ryan Menezes stresses that even if Tim innocently misread the signals, it doesn’t mean his “victim” was any less traumatized. But people have plenty of traumatic experiences that aren’t criminal. Stipulating for the moment that Tim should have been more attentive to Vicky’s signals, there were many possibilities for a non-punitive resolution—including, perhaps, university-provided counseling and mediation.

Would affirmative consent have helped avoid such a situation? Doubtful. It is easy to imagine a similar scenario in which Tim asks Vicky if she’s okay with this and Vicky nods or even says yes—and then makes a complaint within the campus system, claiming, in all sincerity, that she felt too intimidated to say no.

“Yes means yes” will not stop sexual predators. It will turn more sensitive young men like Tim into victims of a college “judicial” system rigged so that the accused virtually cannot win.

Two Federal Judges Misrule in Campus Sex Cases

Since March of 2014, federal and state courts have produced a run of decisions favorable to due process in campus sex cases. But in recent months, this welcome development has been reversed—most spectacularly in the deeply troubling decision in the Vassar case, but also in two recent decisions involving cases at Columbia and Miami (Ohio). In both, federal judges dismissed Title IX complaints filed by male students who said they had been falsely accused. The decisions suggest indifference to judicial oversight of college disciplinary actions, and imply that Title IX can be used solely as a sword to eviscerate due-process rights, but not as a shield to protect the civil liberties of students on campus.

Columbia

The first decision came from Judge Jesse Furman, regarding a lawsuit pseudonymously filed against Columbia. I had previously summarized the case, which involved a member of the Columbia crew team who was accused of sexual assault five months after a brief hookup. The accuser didn’t go to police or claim to anyone that she had been assaulted; she texted the accused student worried that if word of their hookup got out, it could affect their social standing. Both had been drinking, and the accuser subsequently complained that she was too intoxicated to have given consent. (There was, obviously, no medical evidence to verify this assertion.)

Columbia’s investigation and adjudication was cursory even by the weak standards that apply to college proceedings: the university didn’t speak to witnesses the accused student suggested who had seen accused and accuser on the night in question, and didn’t even tell the accused he had a right to an “advocate.” (So: facing a charge of rape, he represented himself.) Found culpable and suspended for three terms, his name was then leaked to the campus newspaper (along with Paul Nungesser’s in the “Mattress girl” case).

In a burst of bad luck for the accused student, the case came before Judge Jesse Furman. Three years ago, the Senate’s foremost opponent of campus due process, Senator Kirsten Gillibrand (D-New York), informed her colleagues that Furman’s “commitment to upholding fairness within our legal system is well regarded and highly respected.” Unsurprisingly for a nominee who received Gillibrand’s enthusiastic endorsement, Furman’s basic message to the accused Columbia student was simple: courts can do nothing, at least when the issue involves students denied due process in sexual assault cases. You can read the opinion here.

Judge Furman, who scowled that that the case before him was part of “what appears to be a growing phenomenon” of due process lawsuits, conceded that “Columbia may well have treated [the accuser] more favorably than Plaintiff during the disciplinary process.” But he had no interest in second-guessing Columbia’s actions, since the Court’s task was not to decide whether Columbia treated Plaintiff fairly or unfairly,” and dismissed the case.

Furman and Title IX

Furman bent over backwards to point out that reasons other than gender—a fear of negative publicity, or a fear of an Office of Civil Rights investigation—might have accounted for Columbia’s approach to the case. But, of course, plausible non-gender reasons exist as to why schools might allegedly, in the distant past, not have taken sexual assault complaints seriously enough. Yet OCR has been clear that the gender discrimination component of Title IX justifies the agency’s assault on campus due process. Furman added that a Title IX allegation must fail because the accused student had not included “any allegations that female students ‘were treated more favorably in similar circumstances.’” But this reasoning suggests that OCR’s approach to Title IX enforcement is similarly off-base. After all, while the overwhelming majority of campus accusers will be women, a small percentage of the total will be men—and presumably they, too, were treated in ways that did not fit OCR’s desires. Accepting the logic of Furman’s argument would make it inappropriate to suggest that the treatment of accusers constitutes a gender discrimination issue.

Unsurprisingly, Furman approvingly cited the Vassar opinion of his colleague, fellow Obama appointee Ronnie Abrams (though his opinion lacked Abrams’ crusading pro-accuser zeal). Unlike Abrams, he at least acknowledged that other courts had stood up for the due process rights of accusers, though he dismissed the reasoning of those cases.  Also unlike Abrams, Furman seemed to concede that at some point, accused students might be able to use Title IX to file due process suits. Perhaps ten or fifteen years down the road, when a sufficient database of mistreated students could be compiled (thereby gathering “information concerning a control group or the like”), his reasoning might allow such a lawsuit to go forward.

Miami’s Compromised Investigation

In late May, Judge Susan Dlott (like Furman, a Democratic nominee) issued a ruling that similarly construed Title IX as solely a sword. (You can read Dlott’s opinion here.) The case involved Miami (Ohio) student Matthew Sahm, who attended a fraternity party at the school on August 31, 2013. There, he met a fellow student, Alexis Prenzler; both were underage, both consumed alcohol, and they had some sort of sexual contact. Sahm said that when Prenzler asked him to stop—because, she said, she had a boyfriend and worried about cheating on him—he did. She then left the party with some friends. A few days later, however, Prenzler filed a complaint with the university, and she also told the Oxford Police Department that she had been raped, by an unknown assailant.

The case seemed open and shut, at least to Miami, which investigated and tried Sahm in three weeks. Sahm represented himself before Miami’s disciplinary board, and later claimed that at the hearing it was unclear whether he or Pretzler had the burden of proof—the sort of problem that can occur when a student accused of a felony offense represents himself. (Miami’s policy forbade Sahm from having an attorney represent him at the hearing.)

Only after being deemed a rapist did Sahm hire an attorney, who used a private investigator to look into the case. The investigator discovered that, according to six people who saw her immediately after the party, Prenzler had expressed the most concern about having cheated on her boyfriend, and denied having been drunk. One of these witnesses claimed that Prenzler had coached sorority sisters about how they should respond to the investigator’s questions. More explosively, she revealed that Miami’s Title IX investigator, Susan Tobergte, had discouraged her from testifying at the hearing—telling her that she needed to Google information about campus sexual assault to “find that less than 2% of sexual assault cases were wrongful convictions.” The student not unreasonably concluded that Miami’s allegedly impartial investigator was actually “biased toward one side of the case.”

As she “investigated” the case, Tobergte was also serving as a member of the university’s task force on sexual assault, which had produced a report claiming, without any hard evidence, that “as many as eight to nine women per week may be victims of sexual assault.” (For comparison, according to FBI 2013 crime stats, around twelve women per week were victims of sexual assault in Detroit, the nation’s most dangerous city—this amidst a population around 37 times larger than Miami University’s.) A report signed by Tobergte also claimed that many “college date rapists . . . did not see themselves as ‘real criminals,’” and that “some men may purposely get drunk when they want to act sexually aggressive, knowing that intoxication will provide them with an excuse for their socially inappropriate behavior.” It’s certainly plausible that someone who held such views could have prejudged Sahm’s case, since it involved alcohol.

Three other witnesses filed affidavits on Sahm’s behalf. One recalled seeing a distraught Prenzler shortly after the incident—distraught not because of an assault but because, she said, “I can’t believe I cheated on my boyfriend.” Another (a sorority sister of Prenzler’s) came forward because, “as a woman and a woman in a sorority, I think that making false accusations and presenting oneself as weak and a victim is extremely insulting.” She recalled that Prenzler had told several friends that she had initiated the sexual contact with Sahm because she “wanted to make sure that [she] didn’t just want to be” with her boyfriend. Perhaps because of such evidence, the police never filed charges against Sahm.

Indifference to Fairness

Miami nonetheless upheld the tribunal’s judgment on grounds that any such evidence was “available to [Sahm] at the time of the original hearing.” The university subsequently denied that gender bias motivated Tobergte’s conduct, suggesting a “benign” explanation (“such as an appropriate intent to take allegations of sexual assault seriously”) or at worst an “inappropriate but not discriminatory” motivation (“such as lack of experience in handling such investigations”) for the school’s investigator discouraging a relevant witness from testifying. Sahm was expelled from Miami, and was subsequently denied admission to Allegheny College after the school requested an explanation for why he had left Miami.

Judge Dlott conceded that it was “troubling” that the university’s Title IX investigator discouraged a student from testifying, apparently on grounds that the witness would say things that undermined the accuser’s tale. But she maintained that the university’s procedures, as revealed in the Sahm case, did not “suggest a gender bias against males so much as against students accused of sexual assault.” But, of course, the overwhelming majority of students accused of sexual assault will be male—just as the overwhelming majority of students who allege sexual assault are female. The latter fact justified OCR’s implication that robust procedural protections for the accused constitute gender discrimination, and therefore fall under the purview of Title IX.

As with Judge Furman, then, Judge Dlott dismissed Title IX as a dead letter for defending due process, even while conceding— albeit very reluctantly—that the university had set up adjudication procedures that were biased against the accused.

Columbia was a case with virtually no evidence. Miami was a case in which several key witnesses, who saw the accuser right after the party, disputed her tale (or simply thought she was lying), even as the school’s investigator discouraged one of them from testifying.

For two federal judges, students subjected to such biased procedures are simply out of luck.

WAPO’s Faulty Rape Poll Muddies the Issue

Rape is a serious matter. That is why it is unfortunate that a Washington Post-Kaiser Family Foundation poll, using a small student sample that does not distinguish between unwanted touching and rape, has concluded that 25 percent of college women are sexually assaulted every year.

On Sunday the Washington Post devoted half its front page and three full inside pages to this poll and sexual assault on campuses.

Yet if parents really thought that their daughters had a 25 percent chance of being assaulted when they went off to college, they would not place them in such danger.  Living at home during university years would be more prevalent and single-sex colleges such as Bryn Mawr or Smith would be more popular than Yale or Harvard.  Instead, women flock to coed universities, where they are awarded 58 percent of BA and MA degrees.

The Washington Post-Kaiser Family Foundation poll sampled 1,053 students aged between 17 and 26 at 500 colleges and universities across the country. This is a tiny fraction of the 21 million students enrolled in post-secondary education, not enough to be a representative sample.

As with a 2010 report by the Centers for Disease Control, which concluded that 18 percent of women have been raped at some time in their lives, the definition of sexual assault is overly broad and leads to misleading conclusions.  As well as traditional definitions of rape, it includes “forced touching of a sexual nature.”

Of course, this kind of behavior is unwanted and unpleasant, but defining it as sexual assault confuses the issue.

Perhaps the loose definition of sexual assault is why the Post stated that “students do not put sexual assault atop a list of possible concerns about their school” and “more than two-thirds gave their schools an A or a B in their handling of complaints.” According to the poll, only 37 percent of students thought that sexual assault was a serious issue on the campus.

In most of the cases described by the reporters, women are assaulted while under the influence of alcohol. They wake up not knowing whether they were raped or not. That’s probably why well over half the students polled thought that alcohol and drug abuse were problems.

The 2010 CDC survey whittled an original list of 201,881 phone numbers down to 16,507, only 8 percent of the original sample, and then asked ambiguous questions to gauge whether the respondents were victims of sexual assault.

For example, the survey asks, “When you were drunk, high, drugged, or passed out and unable to consent, how many people have had vaginal sex with you?” To a typical respondent, it is not clear whether the condition of “unable to consent” applies to “drunk, high, drugged,” or if “unable to consent” is a separate condition.

After the questions are answered, it was the surveyors, rather than the respondents, who determined whether the respondent had been raped.

Both the Washington Post-Kaiser Family Foundation and the CDC results clash with the Bureau of Justice Statistics data, which publishes an annual Criminal Victimization survey.  The latest data for 2013, released in September 2014, show rape/sexual assault rates of 1.1 per 1,000 people in 2013, down from 1.3 per 1,000 people in 2012, both reported and unreported rapes.

The popular view is that colleges are not doing an adequate job of protecting women on campus. The Office of Civil Rights of the Department of Education is requiring colleges to hire more administrators to investigate and stop sexual assault, adding to university bureaucracy and tuition costs. The Post calls for additional student training to encourage bystanders to step in when they perceive a problem.

In order to address the problem of rape it is important to have the right numbers. That’s why including unwanted touching and rape in the same category as sexual assault confuses the issue and prevents the development of real solutions.

The long Washington Post story included many interviews with women who had drunk too much and had sexual encounters that they regretted afterwards.  Some others who were not drunk were attacked by unknown men. These are different problems calling for different solutions.

It is clear that excessive drinking is contributing to cases of sexual assault.  The drinking age of 21 prevents open campus pubs or bars where students can drink together socially.  Instead, students binge in their rooms before parties. Binge drinking is more of a problem in the United States than in Europe, where the drinking age is lower. Perhaps the drinking age needs to be reconsidered so drinking can come out of the closet.

Traditional feminists used to say that women are strong and intelligent, that they can look after themselves, and that they can move into male-dominated professions and aim for the CEO’s corner office.  Curbing excessive drinking for both men and women is a good way to show strength and to avoid tragic occurrences.

The Washington Post and the Kaiser Family Foundation no doubt mean well with their survey.  But their alarming results clash with reality. Young American women are neither naive nor foolish nor merely passive victims. They do not go to college to face a 25 percent likelihood of being raped. Nor do their parents place them in such situations.

Far fewer but still all too many women actually are raped each year. Some are on college campuses. Many are not. Their trauma and suffering are trivialized by reporting that conflates unwanted touching with rape.  It is time the Washington Post and the Kaiser Family Foundation focused on the real victims of criminal rape.

Did ‘Mattress Girl’ Tell the Truth?  Not Very Likely

At least for now, Columbia’s mattress saga is over. Emma Sulkowicz, the student who spent her final year on campus toting a mattress to protest the school’s failure to punish her alleged rapist, graduated at the end of May; so did Paul Nungesser, the accused man who says he’s the real victim.

There was more drama at graduation: Sulkowicz toted her mattress onstage in defiance of school regulations and later accused Columbia president Lee Bollinger of snubbing her. In related news, posters branding Sulkowicz a liar cropped up near the campus; Nungesser was reported cleared on the last sexual assault complaint against him, this one from a male student; and, the next day, one of his two anonymous female accusers told her story on the feminist blog Jezebel.

An attempt at summing up this messy saga and its lessons comes from Emily Bazelon via Sunday’s New York Times Magazine. Bazelon admits that l’affaire Sulkowicz drama highlights major problems with the current system of Title IX-based campus “justice”—including “utter lack of transparency,” which is not a bug but a feature of the system: federal law stringently protects the privacy of students involved in disciplinary cases. As a result, in an alleged rape case that has attracted international attention and scrutiny, we are mostly left with he said/she said accounts not only of what happened between Nungesser and his accusers, but of how the complaints were handled by the university. The records exist, including transcripts and video recordings of the hearings; but they are off-limits and likely to remain so.

Dispensing with Due Process

Bazelon believes this fiasco is a result of the current system’s growing pains—of “a transitional period in the evolution of how universities handle sexual assault.” But it’s hard to see what reforms would fix the problem. Even if school staff are better trained to investigate sexual misconduct reports—assuming that “better training” actually means more effective fact-finding, not more faithful adherence to believe-the-survivor dogma—this would not address the underlying issue: that activists like Sulkowicz want to dispense with any semblance of due process and refuse to respect any result other than culpability and punishment.

(Incidentally, while Bazelon correctly notes that “rape is extremely difficult to prosecute both effectively and fairly,” the kind of violent attack that Sulkowicz alleges—an excruciatingly painful anal rape during which she was hit in the face, choked within an inch of her life, and pinned by the arms—would be quite easy to prove, at least if promptly reported to the police. The physical evidence would have been overwhelming.)

One lesson of this case Bazelon doesn’t mention is that if universities are going to have rules for the disposition of Title IX cases, they need, at least, to enforce those rules in a fair and meaningful way. As Nungesser’s lawsuit against Columbia points out, all the parties in sexual misconduct cases are urged to do what they can protect the confidentiality of the process and the privacy of all those involved. Sulkowicz has repeatedly violated that rule with impunity; the male accuser, known as “Adam,” talked to Jezebel about his complaint while it was still under investigation, apparently with no consequences.

On Fulsome Display

Columbia’s craven acquiescence to Sulkowicz’s activism was on fulsome display in the graduation dust-up. A university email sent the previous day had reminded students not to bring large objects into the ceremonial area. When Sulkowicz arrived toting her mattress, she was apparently asked to stow it away for the ceremony; she refused, and she and her helpers were finally allowed onstage anyway. The university’s official statement, emailed to me by director of communications Victoria Benitez, noted, “We were not going to physically block entry to graduates who are ultimately responsible for their own choices.” In other words, compliance with the rules is a personal choice.

Another lesson is that the media need to exercise due diligence and skepticism when it comes to “survivor” narratives: not to treat accusers as presumptive liars, of course, but to ask questions and do the fact-checking. (In other words, “trust but verify.”) That is something journalists egregiously failed to do for months, when Sulkowicz’s narrative went unchallenged amidst massive publicity. The mainstream coverage today is much more balanced; Bazelon clearly presents this as a story with two sides and mentions some of the exculpatory evidence, including Sulkowicz’s chatty Facebook messages to Nungesser after the alleged rape.

Yet even now, failure to verify remains a problem. No one, as far as I can tell, has followed up on Sulkowicz’s claim (made in the annotations to her Facebook messages for Jezebel last February but never mentioned before or since) that the day after she was allegedly raped by Nungesser, she talked about it to a female friend “who explain[ed] it was rape.” If such a corroborating witness exists, why did she not testify at the hearing or come forward to support Sulkowicz? Can Sulkowicz give this friend’s name to journalists, at least on the condition that she won’t be publicly identified?

To state the obvious, the truth in this story is ultimately unknowable. But here’s what we do know.

Kept up A Friendly Act

Sulkowicz’s account of her rape strains credulity to the extreme. Sulkowicz accuses Nungesser of an extremely brutal assault that should have left her visibly injured (with bruises not only on her face but on her neck and arms, unlikely to be covered by clothing in August and early September in New York) and in need of medical attention. Yet no one saw anything amiss after this attack, and both Nungesser and Sulkowicz went on to chat and banter on Facebook as if nothing happened. Sulkowicz’s claim that she kept up a friendly act hoping to confront him about the rape seems extremely dubious, given the near-psychotic violence she alleges and the lack of any sign of unease or tension in their online conversations. (When I reread these archives recently, I checked the timestamps to see if there were any awkward pauses; there weren’t, not even when Nungesser asks Sulkowicz to bring more girls to his party and she replies, “I’ll be dere w da females soon.”)

Is Sulkowicz a “false accuser”? We don’t know that. It’s possible that something ambiguous happened between her and Nungesser that night—something that she later came to see as coercive and embellished with violent details. But I would say the odds of her account being factually true are very low.

Sulkowicz has demonstrable credibility problems.A few examples:

  • As Nungesser’s lawsuit notes, at one point in spring 2014 Sulkowicz wrote that she lived in daily terror of encountering her rapist on campus—while another statement she made around the same time shows that she knew he was spending a semester in Europe.Prior to her claim that she spoke to a friend the morning after the alleged rape, Sulkowicz had sometimes asserted that she didn’t tell anyone for several months, sometimes that she told a few friends.Last fall, Sulkowicz told the Times’ Ariel Kaminer that after filing a police report, she had elected not to pursue criminal charges because the process would be “lengthy” and “too draining.” Now, she tells Bazelon that she stopped talking to investigators because “the police were visiting her apartment unexpectedly.”
  • The multiple charges in this instance do not make for a stronger case because they are demonstrably linked to each other; what’s more, there is evidence backing Nungesser’s claim that he was targeted for a vendetta based on the belief that he had raped Sulkowicz.
  • One of the other two female accusers, “Natalie”—Nungesser’s freshman-year girlfriend—filed a complaint after talking to Sulkowicz and (in Sulkowicz’s words) delving into their “shared trauma.” Her complaint was dismissed for lack of evidence after she stopped cooperating with investigators. Nungesser’s lawsuit says she claimed she felt obligated to have sex with him; Natalie herself told Bwog, the Columbia campus magazine, that he would often forcefully pin her arms back during sex and that she often cried when they were in bed. (She struggled with major depression during their relationship.)

Rape or Drunken Pass?

  • “Josie,” the accuser who authored the piece for Jezebel, admits that she filed her complaint with the encouragement of a “friend” who told her that Nungesser had been accused of raping another woman. As I have previously reported, that friend—to whom I have referred by the pseudonym “Leila”—was an officer in the Alpha Delta Phi coed fraternity to which Nungesser, Sulkowicz, and Josie all belonged. At the time, Leila was trying to get Nungesser ejected from the ADP residence because of Sulkowicz’s charges. (Josie also lived at the house; Sulkowicz did not.)Josie’s charge is the only one on which Nungesser was initially found culpable; that finding was later reversed on appeal, and a second hearing exonerated Nungesser after Josie declined to participate.Josie has given somewhat contradictory accounts of her decision to withdraw from the process. Among other things, she has repeatedly stressed that she had graduated from Columbia by then, without mentioning that the first hearing also took place months after her graduation in May 2013. (According to the timeline compiled by Nungesser’s parents, the original hearing was held September 26; the appeal was granted on October 28, and the second hearing was on December 13.)Even if Josie’s story is true, her complaint hardly corroborates Sulkowicz’s accusation. Sulkowicz is alleging a brutal rape; Josie is alleging a boorish drunken pass at a booze-soaked frat party. She says that Nungesser followed her upstairs after offering to help restock the bar, then tried to kiss her and pulled her toward him despite her protestations, until she pushed him off and left. Such behavior may meet the definition of sexual assault on the modern campus, but it is hardly the mark of a violent sexual predator. Josie herself says she did not think of it as “sexual assault” until she heard about the alleged attack on Sulkowicz.
  • The last and fourth charge from “Adam” has been all but definitively exposed as a fabrication, as I wrote on Reason.com last month after reviewing a leaked internal report by Columbia Title IX investigators. The report describes Adam as a highly “unreliable” complainant, partly because social media records contradicted his version of his interactions with Nungesser and backed Nungesser’s. Adam also made bizarrely paranoid claims that Nungesser “retaliated” for his complaint—before the complaint was filed—by sitting too close to him and his friends in class and complimenting a point he had made in a class discussion.The document also reveals that Adam first made his allegations to Leila while she was collecting accusations of sexual misconduct against Nungesser in the wake of Sulkowicz’s charge. Without explicitly confirming the existence of a vendetta, it notes that “at the time of the Complainant’s initial disclosure, at least several of his close friends … were [seeking] to evict the Respondent from the fraternity house.” Adam was a close friend of Natalie’s; Nungesser’s lawsuit also alleges he is a close friend of Sulkowicz’s.

Uncritical Reporters

While this is purely speculative, it is also interesting to note that the accusations against Nungesser first emerged in the immediate aftermath of the Steubenville, Ohio rape trial in February-March 2013, when the moral panic about “rape culture” reached fever pitch in the media and “sexual awareness” events proliferated on college campuses. Is it possible that this atmosphere of hypercharged rhetoric about the ubiquity of sexual violence and its tacit toleration by American society encouraged at least some of the complainants to reinterpret their own experiences as assaultive?

With Nungesser’s lawsuit still pending, the story is certain to be back in the news. Perhaps, by the time it reaches its next round in the news cycle, the journalists who cover this case will learn some of its lessons and ask the hard questions.

In the meantime, there is certainly enough evidence to grant Nungesser the benefit of reasonable doubt not only in legal disciplinary proceedings, but in the court of public opinion. That is something he has been denied by Sulkowicz’s campaign and its mostly uncritical media reception.

Male in ‘Mattress Case’ Sues Columbia

Male in ‘Mattress Case’ Sues Columbia

KC Johnson

Paul Nungesser—the Columbia student targeted by Emma Sulkowicz’s media campaign and described by Kristin Gillibrand as a “rapist” in a statement released by the New York senator’s office—has filed a Title IX lawsuit against Columbia University. The case was assigned to Judge Gregory Woods, an Obama appointee recommended by Charles Schumer. (This is the same district that includes the due process-unfriendly Ronnie Abrams, so the assignment could have been worse.) You can read the filing here.

Cathy Young has the best journalistic summary of Nungesser’s experience. Even though he was found not culpable in Columbia’s accuser-friendly adjudication process; and even though the NYPD declined to pursue Sulkowicz’s claims; and even though Nungesser’s advisor cast doubt on Sulkowicz’s portrayal of the Columbia disciplinary process; and even though flirtatious e-mails from Sulkowicz to Nungesser seemed irreconcilable with Sulkowicz’s claim that Nungesser violently attacked her—media portrayals offered up Sulkowicz as a “survivor.” The editor of the op-ed page at the Columbia Spectator subsequently admitted that “we, the members of the campus media, failed specifically with [Emma] Sulkowicz’s story by not being thorough and impartial. Instead, campus media’s goal to promote discussion about sexual assault and to support survivors became conflated with a fear of rigorous reporting. Personally, I felt that if I covered the existence of a different perspective—say, that due process should be respected—not only would I have been excoriated, but many would have said that I was harming survivors and the fight against sexual assault.”

A Non-Credible Accuser?

The complaint goes into considerable detail regarding the Nungesser-Sulkowicz relationship; using private Facebook messages, the complaint notes that the two frequently discussed intimate matters (including Sulkowicz’s claim that she had been raped in high school and her discussion of students on campus with whom she had intercourse). The messages contradict Sulkowicz’s subsequent assertions that she and Nungesser had never discussed certain types of intercourse before sleeping together.

The Facebook messages in the complaint—many of which Cathy Young previously had uncovered—reveal a relationship in which desire became increasingly imbalanced. Nungesser told Sulkowicz he had met someone else over the summer (“a summer fling”); messages from Sulkowicz over the summer responded, “I LOVE YOU – SO MUCH” – “I MISS YOU MORE THAN ANYTHING.”

Their friendship apparently resumed in fall 2012, and they slept together one time in September 2012. Sulkowcz’s messages to Nungesser afterwards contained no indication of any assault. Rather, she told him “I wanna see yoyououoyou” and “I love you Paul. Where are you?!?!?!?!”But Nungesser didn’t seem interested, and (as Young had noted in her article) the two didn’t meet. According to the complaint, “she continued pursuing him, reiterating that she loved him. However, when Paul did not reciprocate these intense feelings, and instead showed interest in dating other women, Emma became viciously angry.” Sulkowicz then filed a complaint of sexual assault with Columbia.

Despite Columbia’s low evidentiary standard (preponderance of evidence) and accuser-friendly procedures, Nungesser wasn’t found culpable—even though he wasn’t able to present clearly exculpatory evidence (the Facebook messages) and possibly exculpatory evidence (that Sulkowicz had previously claimed that another Columbia student had raped her). Sulkowicz’s lack of credibility was, it seems, more than enough for the Columbia panel.

The university instructed Nungesser that it would “make all reasonable efforts to maintain the confidentiality/privacy of the involved parties,” and that he “should use the utmost discretion and not discuss the evidence with others.” Sulkowicz, presumably, received the same guidance (otherwise Columbia violated Title IX by setting one procedure for the accused and another for the accuser). Columbia’s policy held that “breaches of confidentiality/privacy or the complainant, respondent, witnesses, or the investigators, may result in additional disciplinary action.”

The Columbia Response

Sulkowicz obviously has ignored that requirement, and responded to the not-culpable finding by going on a media spree, speaking to a wide variety of local, state, and national reporters—as well as, the complaint alleges, coverage in 35(!) other countries. No evidence exists that Columbia disciplined Sulkowicz for the breach of confidentiality. Instead, Columbia removed the promise of confidentiality in 2014, after Sulkowicz had begun her publicity effort.

Bollinger, meanwhile, responded to Sulkowicz’s crusade by announcing new procedures that further weakened the rights of the accused. While making no comment about Nungesser (who, again, Columbia’s own procedures found did nothing wrong), the president also expressed sympathy with Sulkowicz, since when a Columbia student “feels that she has been a victim of mistreatment, I am affected by that. This is all very painful.” Repeated Bollinger statements, including a New Republic article featuring a photo of Sulkowicz, seemed to side with Sulkowicz, while doing nothing to address the harassment of Nungesser or Sulkowicz’s myriad breaches of confidentiality. In fact, Columbia’s strategy—claiming that confidentiality forbade it from defending that fairness of the panel that evaluated Sulkowicz’s claim while simultaneously turning the other way to Sulkowicz’s violations of that same confidentiality—could only leave the impression that Columbia’s administration agreed with the accuser’s complaints.

This campaign, the complaint notes, featured Sulkowicz repeatedly claiming that she was afraid to leave her room, lest she encounter Nungesser on campus. Yet at the time (as Sulkowicz knew), Nungesser was studying abroad (in Prague), and therefore the accuser had no risk of encountering him. The complaint undermines the credibility of Sulkowicz’s public statements in other ways. For instance, the accuser has claimed that she went to the NYPD, but then dropped the case because the police officers didn’t treat her with sufficient sensitivity. In fact, Nungesser met with two Manhattan ADAs, who then informed him that they didn’t have reasonable suspicion to proceed with the case. Three weeks later came Sulkowicz’s seemingly false assertion that she pulled the plug on the case.

The Mattress Allegation

In addition to Columbia and Bollinger, there’s a third defendant in the case—Professor Jon Kessler, who supervised Sulkowicz’s “academic” project of carrying a mattress around campus to symbolize her suffering. The complaint cites Kessler’s public statements corroborating Sulkowicz’s unsubstantiated (at best) account as grounds for a defamation charge. For instance, Kessler told the Columbia Spectator, “Carrying around your university bed – which was also the site of your rape – is an amazingly significant and poignant and powerful symbol . . . with all this evidence coming up … it’s so clear the way uni feels about this issue.” Kessler did not explain what grounds he had for making this statement, nor did he speak to Nungesser to get his side of the story. By publicly targeting Nungesser, the complaint alleges, Columbia authorized gender-based harassment of one of its own students.

The academic/publicity campaign, the complaint alleges, has had its effect; after all, Sulkowicz made plain her goal of creating a situation making it“not safe for him to be on this campus.” Sulkowicz herself liked (on Facebook) one written threat to Nungesser, in a thread that featured one friend of the accuser[i] endorsing Nungesser as the victim of “mob justice“(link no longer active). It seems unlikely, under current conditions, that Nungesser will even be able to attend his graduation. The complaint alleges that Nungesser and his parents have filed repeated complaints with Columbia about Sulkowicz’s conduct, which all but certainly violates even the watered-down restrictions on accusers in the current Columbia policy.

Columbia, according to the complaint, has done nothing. Will a federal court follow suit?

BRANDEIS THE LATEST LAWSUIT TARGET

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.

‘Emergency Suspension’      

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.

 Withholding Information

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.

TEN CAMPUS RAPES—OR WERE THEY?

How Accusers Play the Drinking Game at Washington and Lee

As you’ll see from the this list of stories, the male students who have the resources to challenge the illegal bullying of their constitutional rights do so by filing a due process lawsuit, like the one facing Washington and Lee. The facts, by this point, are depressingly familiar.

Two students had a sexual encounter after attending a party, during which both consumed alcohol. The next morning, the accused student drove the accuser back to her dorm. The next day, the accuser told a friend that she had a good time the previous evening, and made no mention of any assault; and the accuser hooked up with the accused student a month later. Many months later, and after working over the summer at a women’s clinic, the accuser indicated that she’d had an “evolution” in how she felt about the incident, which she now concluded was a sexual assault.

Part of this evolution was seeing the name of the accused student—who she had also discovered now had a girlfriend—on the acceptance list for a college program in Nepal.
Originally posted January 26, 2015. Read more about the Washington and Lee case here.

Railroading at Vassar

Peter Yu
Peter Yu

Peter Yu and a fellow member of the crew team attended a party, had quite a bit to drink, and then returned to his room to have sexual relations. Yu’s roommate interrupted them, the accuser said she didn’t want to go any further, and she left—following this up with several Facebook messages, over many weeks, in which she expressed regret for how the evening had wound up. Then, on the last day allowed under Vassar procedures, Walker (whose father is a Vassar professor) filed a sexual assault complaint at the school; the timing precluded Yu’s filing a counter-claim…

Perhaps the most problematic aspect of the Yu case was the sense that the accuser—whose father, after all, is a Vassar professor—gamed the system. Her waiting until the very last moment to file charges robbed Yu of a chance to file counter-charges—that is, to claim that since both parties were drunk, the accuser was as guilty of sexual assault as was he. And her pushing the case to the IVP ensured that she would be judged solely by colleagues of her father, rather than by a mixture of students and faculty members.
Originally posted April 5, 2015. Read the entire story here.

After an Alleged Rape at Columbia, “I Love You Paul. Where Are You?”

Paul Nungesser
Paul Nungesser

Alleged victim Emma Sulkowicz continued to have chatty and playful Facebook exchanges with alleged rapist Paul Nungesser for weeks after she says he brutally violated her and choked her within an inch of her life. After the alleged rape On Oct. 3, Sulkowicz’s birthday, Nungesser sent her an effusive greeting; she responded the next morning with, “I love you Paul. Where are you?!?!?!?!”
Originally posted February 10, 2015. Read about Columbia’s “mattress girl” here.

How Drunk Can You Get at Cornell?

Two students had intimate relations after a night of drinking. Sixty-six days later, the accuser filed a complaint with Cornell, arguing that she was too drunk to have given consent. As at DePauw (see below), the university gave more weight to students who corroborated the accuser’s story than to apparently identically situated students who backed the accused’s version of events, seemingly to shoehorn a finding that would edge past the preponderance-of-evidence threshold. Apart from the accuser, Cornell’s main witness appears not to have been any of the students with whom the accused and accuser partied, but instead a close friend of the accuser with whom she breakfasted around 30 hours or so after the alleged encounter. Because Cornell now employs the single-investigator model, the accused student (and his representative) had no opportunity even to see the accuser testify, much less to cross-examine her.
Originally posted March 23, 2015. Read more about the lawsuit here.

Basketball Star Accused at Xavier

After what he claimed was an incident of consensual sexual intercourse, Xavier basketball star Dez Wells was accused of sexual assault. In a mere 27 days from accusation to judgment,

Dez Wells
Dez Wells, Baltimore Sun

the university concluded that Wells was “responsible for rape” after a process in which Wells couldn’t cross-examine his accuser and was deemed a rapist based on a preponderance-of-evidence threshold. All this occurred while Cincinnati authorities determined that there was no basis to pursue criminal charges; prosecutor Joseph Deters deemed the Xavier process “fundamentally unfair.”

In the Wells case, “justice” was swift–and unjust. So Wells filed a federal lawsuit, claiming gender discrimination and libel, and urging the court to overturn the result of Xavier’s disciplinary tribunal, called the UCB. On Wells’ Title IX claims, the order held that Wells’ allegations plausibly showed that Xavier was “reacting against him as a male to demonstrate to the OCR that [university officials] would take action, as they had failed to in the past, against males accused of sexual assault.” The judge noted that the university, which ignored warnings from the prosecutor that the sexual assault claim was unfounded, deemed Wells a rapist anyway.
Originally posted March 13, 2014. Read more about this case here.

Why ‘Yes’ Means No at Occidental

Occidental is the California college whose rules allow branding a male student a rapist even if his female partner says “yes” to sexual intercourse. Moreover, the school includes what seems to be a disproportionate number of anti-due process “activists,” professors inclined toward delusional claims against their administration even as they suggest that outsiders should trust their credibility that the campus is awash in rape. The Occidental case is, if anything, more extreme than the typical due process case because of the involvement of an anti-due process member of the Occidental faculty, Danielle Dirks.

Dirks counseled the accuser to file a sexual assault claim against a male student, according to a confidential report prepared by Occidental and obtained by FIRE, because the accused student “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’” (Imagine the howling from the Occidental faculty if the school more generally used profiling on criminal matters.) Moreover, the accuser went to police, who, along with prosecutors, concluded that both parties had too much to drink, but no rape occurred, since both were “willing participants.”

Yet Occidental branded the accused student a rapist anyway.
Originally posted June 6, 2014. Read more about Occidental here.

Yale and The NY Times Smear a Quarterback

Patrick Witt was a quarterback, and a very good one, at Yale. He was also a finalist for the Rhodes scholarship. It turned out that his interview for the Rhodes coincided with the day of the Harvard-Yale game. After some thought, he decided to withdraw his Rhodes candidacy and play in the game on November 13, 2011, which, alas, Yale lost. Two months later, a New York Times’  reporter, Richard Perez-Pena, swooped in with a nearly 2,000-word article splashed over the front page of The Times sports section announcing that the Rhodes Trust had suspended Witt’s candidacy, because it had learned that he had faced an allegation of sexual assault.

Patrick Witt
Patrick Witt

The story left everything else to insinuation, but any reader would have come away with the following conclusions: One, that Yale and Witt had conspired together to present a false explanation of why he had chosen to withdraw. Second, that Witt was something of a habitual criminal. And third, that he likely had done it. Nearly one-tenth of the article was devoted to two extraneous and minor alcohol-related arrests of Witt, the inclusion of which in the piece seemed to have the sole purpose of smearing his character.

This story received a good deal of public criticism, including from me. In response, The Times sort of doubled down on the story–exactly what they did in the Duke lacrosse case. They did not reassign Perez-Pena, as they had not reassigned Duff Wilson, their lead reporter in the lacrosse case. But they did authorize the public editor, Arthur Brisbane, to do his own reporting. This is a very odd journalistic strategy: a public editor reporting what the paper’s own reporter had chosen not to do.

The public editor conceded, in paragraph 24 of a 26-paragraph piece, that the original article never should have been published. The best reporting on the case was actually done not by The Times but by the Yale Daily News. And the best analysis of the case was done not by The Times, but by the sports website, Deadspin. Both showed that Witt likely withdrew for the exact reasons that he said, that he wanted to play in The Game, and he felt an obligation to his team.

How did an accusation of rape with no evidence, no legal recourse for the accused come to pass at a school renowned for its law school? Yale, in late 2010, decided that its sexual assault procedures were not sufficiently tilted in favor of the accuser. And so they set up a separate, informal complaint procedure for sexual assault. And it is this procedure to which Witt was subjected. Under this procedure, an accuser can file an allegation of sexual assault against a fellow classmate if he or she determines that that classmate has caused him or her to worry.

Generally, worrying does not rise to the level of sexual assault. Once this procedure is initiated, and this is a direct quote from the Yale guidelines, “the goal is to achieve a resolution that is desired by the [accuser].” In blunt language, this means that the accused student, Witt in this case, does not have the right within the Yale procedure to cross-examine his accuser. He does not even have the right to present evidence of his innocence. The accusation is accepted at face value, and the purpose of the process is to resolve it in a way that the accusing student feels comfortable.

It is on the basis of this sort of complaint, filed under this procedure, that the Rhodes Trust decided that it needed to suspend Witt’s candidacy. That’s nothing short of extraordinary.
Originally posted on April 2, 2012.

J’Accuse at DePauw

By now, the specifics of the DePauw case will sound familiar. Last December, Ben King attended a party with around 30 students; most (including the accuser and the accused) appeared to have had a lot to drink. The two went back to King’s room, where some type of sexual contact (but not intercourse) occurred. King says he asked the accuser if she consented to sexual activity, and she said yes. (The accuser says that she doesn’t remember one way or the other.) Two days later, the accuser spoke to DePauw’s Title IX coordinator, claiming the sexual contact was non-voluntary. The coordinator interviewed King. After no action, nearly five weeks later the accuser said she wanted to pursue charges.

The university’s “investigation” consisted of interviews with the accuser and party witnesses recommended by the accuser (several of her sorority sisters). Reflecting what it termed its “even-handed approach” to campus claims of sexual assault, DePauw defended its decision to confine its inquiry in this manner, since interviewing all the people at the party, including neutral students, would not have been “an efficient use of limited resources.”’

The hearing occurred 12 days after the investigation ended. At the hearing, consistent with DePauw’s policies, King was denied the right to an attorney—so as to avoid “undue judicialization” of university affairs. Meanwhile, the accuser’s hearing “advocate” was married to the school’s Title IX coordinator—a figure who supplied a supposedly neutral summary of the case at the hearing, but instead appears to have impeached King. DePauw deemed the relationship between the accuser’s advocate and a supposedly neutral key factual witness “immaterial” to the outcome of the case.

In an unintentional commentary on why academics should not conduct criminal investigations, the hearing appears to have consisted mostly of DePauw’s panel asking witnesses how drunk they were (on a scale of 1 to 10) and how drunk the accuser was (on a scale of 1 to 10). Three of the four key witnesses were consistent with their written testimony, but the fourth (the accuser’s roommate who had said she sounded “fine” and “did not sound too drunk”) now rated the accuser as an 8-level of intoxication. “But,” she added, “Because I was intoxicated as well, I might have not known for sure.” The record gives no indication of the hearing panel questioning this student on why her panel testimony differed from her written statement.

King did testify during the hearing. Demonstrating the impossibility of proving “affirmative consent,” he said that the accuser verbally consented—repeatedly—to having sexual contact. He nonetheless was found guilty and expelled on grounds that the accuser was intoxicated and could not have given consent. On appeal, the university reduced the penalty to a two-semester suspension with possible re-admission, provided King demonstrated an “understanding of the issues raised by his interaction with” the accuser.

King then sued. Incredibly, DePauw cited “academic freedom” as justification for both its actions and as a reason for the court not to make an “unwarranted imposition” into university affairs. Pointing to the White House task force report, the university also argued that it was appropriate to give the accuser “some control” over the investigation (ostensibly for privacy reasons). The judge rejected King’s Title IX claim, arguing that DePauw didn’t discriminate against King on basis of his gender, but nonetheless granted a preliminary injunction, arguing that DePauw violated its contract with King.
Originally posted Dec. 17, 2014.

The Donor Influence at Brown

Brown University
Brown University

Marcella (Beth) Dresdale was the former Brown student who accused a classmate of sexual harassment and then  changed the accusation to rape. The classmate, William McCormick quickly left Brown but eventually sued both Dresdale and her father, Richard Dresdale, a wealthy Brown donor. Before the Dresdales agreed to an out-of-court settlement (reportedly after McCormick had been offered $1.05 million), the lawsuit brought to light Richard Dresdale’s aggressive involvement in the Brown procedure that minimally investigated his daughter’s claims.

The lawsuit documents and subsequent press coverage also focused on the role in the case played by Dresdale’s and McCormick’s residential counselor, Shane Reil. (Reil at the time was a Brown undergraduate; he’s now a student at BC Law School.) A few days after Dresdale filed her claim of sexual harassment, but before she alleged she was raped, Reil dined privately with the Dresdales at the home of another wealthy Brown donor.

Following the dinner, Richard Dresdale said he’d be willing to mentor Reil, who was attending Brown on a need-based scholarship. A few days later, Reil filed his report on the case, which offered a negative portrayal of McCormick. If the case had gone forward, Reil would have been an important witness, given both his position in the dorm and the apparent lack of any physical evidence to corroborate Beth Dresdale’s allegation of sexual assault.

The statements of at least two student witnesses–Julie Siwicki and Spencer Brody–evolved from slightly negative remarks about McCormick to damning portrayals. (In Siwicki’s instance, the evolution was transparent, since she inserted a highly negative paragraph into a previously-submitted, and basically neutral, e-mail.) The evolution in the two students’ statements occurred at about the same time Richard Dresdale was offering career assistance to Reil. Did similar offers to Siwicki and Brody help explain their “evolution,” or did Dresdale encourage deans to reach out to the two students for amplification? There’s no way to know.

Knowing that Richard Dresdale had made a mentorship offer to Reil would have opened up avenues for McCormick’s advocate to question Brody and especially Siwicki, to see if any improper contact had occurred between Dresdale and these witnesses. Yet according to Brown, the university’s procedure is set up so that no witness must divulge an offer of career assistance from an accuser’s wealthy father. This Catch-22 approach all but insures that improper contact between an accuser’s family and witnesses will remain secret.

Even if it was wholly innocent, the Dresdale-Reil contact illuminates yet again the limited due process protections available to accused students in campus tribunals. If McCormick had been criminally charged, the discovery process doubtless would have turned up the Dresdale e-mails, and Dresdale could have been cross-examined on the witness stand as to whether he was seeking to influence potential witnesses.
Originally posted  June 12, 2012. Read more about the Brown case here.

Wesleyan and Swarthmore

There are two certainties from the current crusade against due process for students accused of sexual assault. First, in coming years, there will be a higher percentage of convictions, since colleges must use the preponderance-of-evidence and are strongly discouraged from allowing accused students from cross-examining their accusers. Second, because so few due process protections exist in campus tribunals, more of these convictions will involve innocent students—who in turn will pursue legal actions to redeem their reputations and salvage hopes of a post-college career. Several recent developments illustrate both points. First: as FIRE reported, Swarthmore has reached a settlement with an anonymous student who sued the school, alleging due process violations in his case. (I wrote about the lawsuit earlier; Swarthmore’s new special master on sexual assault cases conceded that the school uses a “very low bar” to deem its students rapists.) Most of the settlement terms were confidential, but one item was public. Swarthmore has now agreed that unspecified “new information raises sufficient questions about the fairness of the hearing to warrant vacating the Panel’s finding and sanction.”

Swarthmore has admitted that it falsely branded a student a rapist, and the reason it did so was the weakness of the school’s procedures, which prevented the student from presenting evidence of his innocence. Also, a new lawsuit against Wesleyan has prompted even the biased Katie Baker to notice the due process problem on campus. The lawsuit, filed by an anonymous student who the school contended committed sexual assault for what the filing terms “non-consensual kissing,” portrays a college facing enormous pressure—both from the OCR, which wants colleges to more aggressively prosecute sexual assault cases; and from on-campus activists demanding the end to single-sex fraternities as a way to end “rape culture” at the college. (The accused student was a frat member who had opposed the policy change.)
Originally posted November 23, 2014.

All ten accounts here are excerpted from original stories by KC Johnson and Cathy Young.

It Could Have Been True, So Why Not Print It?

The long-awaited Columbia Journalism Review report of Rolling sabrina-rubin-erdelyStone’s UVA article, which ostensibly takes the magazine to task for falsely reporting a rape that never happened, sparked a new outcry from both the media and students on America’s college campuses.

They’re horrified that the report could have a chilling effect on students reporting sexual assaults.  No concern over the unnamed rapist, who students at UVA were quick to identify regardless. No concern that a decades-old fraternity was forced to close its doors and is now suing Rolling Stone for defamation. And no concern over accusations that may have ruined a young man’s chances in life, simply because he was “accused” without due process.

The report runs around 12,000 words, but this passage captures its strengths and weaknesses: “The problem of confirmation bias – the tendency of people to be trapped by pre-existing assumptions and to select facts that support their own views while overlooking contradictory ones – is a well-established finding of social science. It seems to have been a factor here. [Reporter Sabrina Rubin] Erdely believed the university was obstructing justice. She felt she had been blocked. Like many other universities, UVA had a flawed record of managing sexual assault cases. Jackie’s experience seemed to confirm this larger pattern. Her story seemed well established on campus, repeated and accepted.”

There was a confirmation bias here, but not the one CJR detected. The “confirmation bias”—one sadly far too common to the mainstream media, and one that CJR appears to share—involves the manner of covering sexual assault on campus. It’s a “scourge,” Geneva Overholser informed CNN’s Reliable Sources. She cited no evidence to sustain the point, and Bureau of Justice Statistics figures show that rape for non-college women is higher than for women who attend college, at comparable age groups.

The CJR quotes the story editor, Sean Woods, continuing to describe Jackie as a “rape victim,” and incredibly fails to press him on how he could render such a description. Rolling Stone editor Will Dana is quoted expressing dismay at how events developed—if the magazine only had realized that Jackie was a fabulist, inventing a tale of gang rape in pursuit of an on-campus relationship or as a crutch to rescue her when her academic standing was threatened. If so, Dana observed, Erdely could have simply summarized Jackie’s (false) tale “in a paragraph deep in the story.” The thesis of the article, however, seemingly would have been the same, according to Dana, since “there were plenty of other stories we could have told in this piece.”

These “stories” all came from Erdely’s reporting, as funneled through Woods’ editing. Why should anyone believe that these “stories” had any more credibility than Jackie’s, given that Rolling Stone appears to employ only true believers on the issue of campus sexual assault? Neither Rolling Stone—which isn’t firing anyone over the affair, and doesn’t seem intent on even making any noticeable editorial changes as a result of the hoax—nor CJR appeared interested in exploring the question. This is the same Rolling Stone, as Richard Bradley has noted, that recently offered a glowing, wholly non-skeptical review to the movie “The Hunting Ground,” which operates from a premise very similar to that which motivated Erdely.

Perhaps the most dispiriting item of the CJR report came in its concluding section, when authors Sheila Coronel, dean of academic affairs at the Graduate School of Journalism at Columbia University, Steve Coll, dean of the school, and Derek Kravitz offered three lessons for journalists from the affair. The third, entitled “holding institutions to account,” is the most off-putting. “Given the difficulties, journalists are rarely in a position to prove guilt or innocence in rape . . . .  [Analyzing how universities handle the accusation] can also make it easier to persuade both victims and perpetrators to talk.” So, having declared that journalists aren’t usually in a position to prove guilt or innocence, CJR did exactly that—there are “victims and perpetrators.” Two sentences later, the report’s authors use the word “accused,” as if “accused” and “perpetrator” are interchangeable.

CJR also recommends that reporters “gain a deep understanding of the tangle of rules and guidelines on campus sexual assault.” I couldn’t agree more. The first step in this would feature a reporter actually describing for readers what the university’s procedures are since many readers doubtless assume, incorrectly, that actual due process exists when schools consider a felony accusation. Yet CJR doesn’t recommend that reporters take this obvious step. Instead, they urge looking at “Title IX, the Clery Act, and the Violence Against Women Act . . .  directives from the Office of Civil Rights and recommendations from the White House.” In other words, all sources that accept as a given that a rape epidemic exists on college campuses. Notably absent from this list—defense attorneys or civil liberties organizations.

The CJR report faithfully exposes the journalistic errors committed by Rolling Stone. But because its authors appear to share the preconceived notions of journalists like Dana, Woods, and Erdely, it seems likely that anyone following the report’s advice would risk the same group think problem that destroyed Rolling Stone.

The Railroading of Peter Yu

One of the most important elements of a senator’s Peter Yupower comes in the tradition of recommending district court judicial nominations in the senator’s home state. And so it perhaps should come as little surprise that the Senate’s most ardent opponent of campus due process, Kirsten Gillibrand (D-New York), would have recommended the author of the most aggressively anti-campus due process opinion to come from the federal courts. In a 58-page opinion, Judge Ronnie Abrams granted summary judgment to Vassar College in a case filed by Peter Yu.

The Abrams decision was particularly disturbing because Vassar’s handling of the case was particularly egregious. To review: Yu and a fellow member of the crew team attended a party, had quite a bit to drink, and then returned to his room to have sexual relations. Yu’s roommate interrupted them, the accuser said she didn’t want to go any further, and she left—following this up with several Facebook messages, over many weeks, in which she expressed regret for how the evening had wound up. Then, on the last day allowed under Vassar procedures, Walker (whose father is a Vassar professor) filed a sexual assault complaint at the school; the timing precluded Yu’s filing a counter-claim. She further requested that the matter be handled for Vassar’s opaque Interpersonal Violence Panel (whose procedures aren’t public), on which three of her father’s colleagues would serve. (Vassar denied Yu’s request that the panel include a student.) The entire process—from filing of charges to the “investigation” to the adjudication to Yu’s expulsion—took less than three weeks.

Process

Yu raised several concerns with the Interpersonal Violence Panel process; Abrams dismissed them all. He noted, for instance, the extraordinary speed of what passed for Vassar’s “investigation” and adjudication. In response, Abrams—a federal judge, remember—found no reason to believe “that eight days between the notice of charges and the verdict, or three days between the presentation of evidence and the hearing, is inherently inadequate.” Again: that passage came from a federal judge, describing the investigation and adjudication of a sexual assault claim.

Nor was Abrams concerned with how Vassar approached the right to counsel. Yu had to represent himself during the proceedings, and his attorney wasn’t even allowed to be present at the IVP hearing, much less participate in it. This provision was no problem, Abrams reasoned, because Vassar’s policy explicitly stated that the student could hire a lawyer, at his own expense. Once hired, of course, the lawyer then could have no role in the process determining whether or not his client will be branded a rapist, a structure that a federal judge doesn’t find problematic. The “right,” as defined by Abrams, is illusory.

Nor was Abrams troubled by the fact that “no one is placed under oath” when they testify before the IVP. She noted (correctly) that Title IX doesn’t require witnesses to testify under oath. But she also suggested that she had no problem with Vassar’s approach on a theoretical level. “Particularly,” she noted, “since Yu was able to ask the witnesses questions through [IVP chairman] Inoa, the admission of unsworn testimony at the hearing does not mark the proceedings as flawed.” That line of argument doesn’t even make sense: how does the fact that Vassar allows the accused student (outside the presence of his counsel) to ask questions through a committee chair (which the chair can decline to present to the witness) in any way relate to the college taking no testimony in rape cases under oath? Judge Abrams doesn’t say.

Perhaps the most problematic aspect of the Yu case was the sense that the accuser—whose father, after all, is a Vassar professor—gamed the system. Her waiting until the very last moment to file charges robbed Yu of a chance to file counter-charges—that is, to claim that since both parties were drunk, the accuser was as guilty of sexual assault as was he. And her pushing the case to the IVP ensured that she would be judged solely by colleagues of her father, rather than by a mixture of students and faculty members.

Abrams saw no problems here, either. Citing depositions, she conceded that hearing panelists acknowledged knowing the accuser’s father, but said they hadn’t realized his daughter attended Vassar. No conflict of interest, she reasoned, thus existed. IVP chair Luis Inoa, however, understood that the process over which he presided involved his colleague’s daughter. The chair further admitted that he might have needed to have recused himself if he had a vote on Yu’s guilt. But under IVP’s (non-public) procedures, the chair doesn’t vote, and therefore Inoa maintained his position on the panel. He controlled the proceedings and—critically—decided which of Yu’s questions would be presented to the accuser, and in which form. (Yu had contended that Inoa’s role denied him a full chance to cross-examine the accuser.) So the person who screened all questions admitted that despite an apparent conflict of interest, he declined to recuse himself.

Facts

Vassar’s “evidence” against Yu came in the form of one-year-after-the-fact testimony from two of the accuser’s friends, who described her as “very drunk” on the evening. By contrast, the IVP declined to hear from Yu’s roommate, on grounds that he couldn’t comment on the accuser’s level of intoxication. The panel doesn’t appear to have pressed the two friends on what they regarded as “very drunk,” or whether the duo considered the accuser or the accused more intoxicated—and, of course, no medical evidence existed to corroborate the accuser’s (or the accused’s) intoxication level.

Judge Abrams has no problem with Vassar’s handling of this issue, citing to a 2002 decision (from a DUI case) in which a Maryland federal court had held that an arresting officer could offer his lay opinion about whether a driver was drunk. It should go without saying that two college students attempting to describe another student’s level of intoxication one year after the event aren’t in the same position as a police officer making a contemporaneous judgment. In any event, driving drunk is against the law; once the police officer in the Maryland case concluded the driver was drunk, the violation had occurred. For sexual assault at Vassar, on the other hand, the standard is “incapacitation”; simply because a student might have been drunk doesn’t imply incapacitation—as the wording of Vassar’s own policy (“the question of incapacitation is determined on a case-by-case basis”) implies. Was Abrams really suggesting that intoxication (the Maryland case) and incapacitation (the supposed Vassar standard) are equivalent?

Against the intoxication testimony of the accuser and two friends, Yu seemed to have a strong rebuttal—numerous Facebook messages from the accuser in which she apologized for withdrawing consent (thereby seeming to concede that Yu had respected her decision) or in which she seemed to be on good terms with Yu. Even Judge Abrams conceded that the messages “could be deemed to contain exculpatory information.”

In depositions, one member of the IVP offered a fascinating explanation on why the panel downplayed the messages: “The Facebook messages appeared after the incident. And we as panelists are tasked with working through the incident and what led up to the incident.” So, to be clear as to how Vassar’s IVP evaluates evidence: near-contemporaneous written documents discussing the incident aren’t important, because those documents appeared “after the incident.” But one-year-later, unsworn, oral testimony is perfectly acceptable.

This bizarre explanation was too much even for Abrams, who instead essentially provided Vassar’s defense for the college. In arguing that the Facebook messages didn’t require presenting this case to a jury, she stressed the accuser’s psychological state to dismiss their relevance. The judge credited the accuser’s (one-year) after-the-fact assertion that the messages did not “reflect any truth of how I felt that day because I was just trying to cope.”

There’s no sign that the IVP ever considered anything related to accuser’s psychological state, or that any medical or otherwise objective evidence existed to sustain the accuser’s convenient theory of the messages’ inaccuracy. Imagine applying the Abrams standard to a fraud case, in which e-mails of a high-ranking employee contained damaging inferences about the substance of oral remarks he made months later, and in which the employee asked a judge to ignore these contemporaneous e-mails because (without citing any medical evidence) the messages didn’t reflect the truth of how he actually felt at the time, when he was under great pressure and just trying to cope. Such a defense would be laughed out of court.

Judge Abrams’ decision brought to a close a streak of judicial victories for students who filed due process lawsuits against their college or university. The normal pattern in such suits (Duke is an exception) featured the school losing the motion to dismiss—before judges appointed by Democrats and Republicans—and then quickly settling, lest discovery allow the accused student access to the sort of embarrassing revelations about the campus disciplinary process that was exposed in the Yu case. One of these decisions even occurred in a district court located in the Second Circuit, involving Vermont’s Marlboro College.

Yet Abrams’ opinion mentioned none of these other decisions. Indeed, though she referenced a “thriving public debate” over the topic, readers of her opinion would never know that this debate has extended to the federal judiciary. Nor would they know that, in recent months, her point of view has been on the losing side time after time. Based on the point of view manifested in her opinion, Judge Abrams pretty clearly would have decided the Xavier, or Swarthmore, or St. Joe’s, or Marlboro, or DePauw, or Duke cases the other way. Her choice not to engage with any these opinions, however, is puzzling.

While Abrams couldn’t find time to discuss seemingly relevant decisions by her colleagues on the federal bench, she rushed to embrace the “Dear Colleague” letter, giving it the same weight as settled precedent. Abrams even justified Vassar’s denial of a right to cross-examine by citing to the Dear Colleague letter—which “strongly” discouraged, but did not prohibit, the practice. In this respect, as FIRE’s Samantha Harris noted, the “opinion should remind due process advocates of why continued pushback against the federal government’s overreach into the operation of university judicial systems is necessary.”

Yu’s attorney, Andrew Miltenberg, told the Examiner’s Ashe Schow that he plans to appeal. Advocates of due process on campus can only hope that Judge Abrams will not be the last word on the subject.