Tag Archives: false rape charges

Due Process Wins a Battle Against a University’s Kangaroo Court

Though federal judges tend to uphold a lot of unjust campus decisions in sex-assault cases, Judge Elizabeth Dillon, an Obama appointee, proved on December 23 that some campus procedures are just too outrageous to survive judicial review.

The judge’s due process ruling came in a case out of James Madison University. (You can read her opinion here.) After troubling appellate rulings in California (which approved a process one judge had compared to a kangaroo court) and in the 6th Circuit (where one judge suggested that military court martials represented an appropriate model for campus sexual assault cases), the Dillon ruling is important.

The James Madison case also illustrates the effects of an often- overlooked effect of the 2011 Dear Colleague letter—the requirement that colleges introduce allow accusers to appeal not-guilty findings. As in comparable cases at George Mason and the University of Michigan, at James Madison, this double-jeopardy principle created an additional layer of injustice. Indeed, in all other types of disciplinary cases at JMU, an accusing student can’t appeal a not-guilty finding.

Even in an environment that often features shaky claims, the JMU one was unusually weak: the accuser filed her claim (that she was too intoxicated to have consented) only after learning that the student she’d accused had moved on to another woman; the accuser offered varying dates for the alleged attack; and the accuser’s own roommate, who the accuser had called as one of her own witnesses, told the hearing panel that on the night of the incident, the accuser was “completely fine” and didn’t seem to be drunk.

Despite a hearing that hardly passed as a paragon of due process (the accused student was forced to present his defense before the accuser’s version was offered to the panel), the accused student was found not guilty.

But—thanks to the Dear Colleague letter’s change—the case wasn’t over. The accuser exercised her right to appeal the not-guilty finding, sending the case to a three-professor panel. And the appeals occurred amidst a campus frenzy over the issue of sexual assault. A few months earlier, OCR had commenced a Title IX investigation of the university. A student named Sarah Butters generated national controversy by claiming JMU had insufficiently punished the students who had raped her.

The fall 2014 semester had begun with an editorial from the student newspaper proclaiming that the university’s alleged softness on sexual assault was the issue that “had been on everyone’s mind for these past few months,” and indicated that “we cannot tolerate a culture of sexual assault at our school.” The editors indicated that “our goal is to give our readers the information necessary to empower them to stand up against sexual assault.” The editorial, signed by all members of the paper’s editorial team, did not mention due process as an issue of any concern.

Amidst this atmosphere, the university allowed the accuser to introduce three new pieces of evidence (each of which had been available to her at the time of her complaint) to the appeals panel.

First, she offered a report from a social worker asserting that she was prone to excessive intoxication when drinking because of medication she was taking. (This report had been introduced into the case file before the original panel made its decision, but was never shown to the accused student.)

Second, she produced a statement from a suitemate claiming that the roommate who testified against her had admitted to lying.

Third, she turned over a voicemail from what she claimed was the night of the incident in which she had discussed her intoxication. Sent, she wrote, right after she left the accused student’s residence, the voicemail “emphasizes that I was drunk and unable to give consent to sex.”

Armed with this “evidence” and the audio of the original hearing—but hearing no testimony from the parties, granting the original panel’s credibility determination no deference, and (it appears) using a definition of consent that differed from that in JMU’s own policy—the appeals panel ordered the accused student suspended for five-and-a-half years.

An e-mail sent to a JMU administrator suggested that the voicemail was critical in the outcome; a subsequent email amended the claim to the new witness statements as the key. Oddly, the panel did not issue a written explanation of why it overturned the original panel’s decision; it did not even indicate that it had found the accused student guilty. Its form only indicated that it had “increased” his (previously nonexistent) punishment.

The flawed procedures in this case yielded particularly flawed results.

First, according to subsequent testimony from members of the appeals panel, they credited the claim that the key exculpatory witness (the accuser’s roommate) had lied without ever giving her a chance to respond. Even more incredibly, under JMU policies, the accused student couldn’t ask the roommate to file a rebuttal statement with the appeals panel—because (since she was a witness called by the accuser in the original hearing) he was forbidden from contacting her.

Second, and in violation of JMU rules, the accused student never saw, at any stage of the process, the social worker’s statement. So he never had the chance to hire an expert of his own to rebut it.

Finally, the so-called ‘smoking gun’ voicemail was actually from the night before the incident. Indeed, its introduction suggested that the accuser might have tried to mislead the appeals panel—which the accused student could have pointed out if JMU had given him more than 24 hours to respond to this new “evidence” (which it sent to him in the middle of winter break).

Since he didn’t see the “evidence” in time, he thought he had no chance to impeach it. One of the appellate panelists, Education professor Dana Haraway, later testified that she considered the voicemail significant in her decision. She didn’t learn about the date error until the accused student’s lawyer deposed her in the due process lawsuit against JMU. It’s hard to imagine a more cavalier approach to one of her own institution’s student’s life and reputation. Professor Haraway did not respond to a request for comment.

All of this was too much for Judge Dillon. “No reasonable jury,” she concluded, “could find [the accused student] was given fundamentally fair process. Instead, the undisputed facts show that JMU denied [him] a ‘meaningful hearing.’”

The case, however, will only lurch along. The accused student’s life has been on hold since January 2015; he filed his lawsuit in May 2015. For the next two months, the two sides will present briefs discussing whether JMU should hold a new hearing. At best, he’ll be eligible to re-enroll in the fall 2017 semester (spring 2018 if JMU requests an additional hearing before Judge Dillon)—so would serve at least a five-semester suspension for an offense that appears never to have occurred, because of procedures that were fundamentally unfair.

Judge Dillon’s ruling addressed one other significant point. In 2015, Judge T.S. Ellis (in a factually dicey case out of George Mason) issued one of the most perceptive comments in any due process ruling about the effects of a guilty finding on the accused student. He noted that a university deeming a student a rapist would have enormous consequences on his future educational and earning opportunities—since he’d have no choice, as part of applying to a new school or to any job that required a background check, to produce educational documents showing the university judgment.

JMU’s lawyer denounced this decision, which he termed the “800-pound gorilla or the elephant in the room,” as “wrong” and a “mistake.” (You can read the hearing transcript here.) In JMU’s world, any student who wanted to conceal a wrongful finding of sexual assault could simply not produce his educational records. Judge Dillon rejected this suggestion as the false choice it was.

What The Rolling Stone Affidavits Show

University of Virginia dean Nicole Eramo’s lawsuit against Rolling Stone has produced hundreds of pages of documents on how the botched article about University of Virginia came to be published—and how UVA employees handled sexual assault claims.

Rolling Stone Rape Charge
False rape charges

Last week, Rolling Stone filed affidavits and notes from the key people involved in the project. I’ve provided excerpts from the affidavits of reporter Sabrina Rubin Erdely, editor Sean Woods, and fact-checker Liz Garber-Paul. Robby Soave has an excellent article with five take-aways from the material; Ashe Schow offers commentary. I recommend both pieces. In addition, a few items:

Rolling Stone’s defense is based on two points, which appear in all three affidavits: (1) that everyone at the magazine believed the accuser, “Jackie,” and had reason to do so; and (2) key people involved in sexual assault adjudications at UVA believed Jackie as well.

There’s no doubt that Erdely, Woods, and Garber-Paul believed Jackie. There’s also no doubt that each of them were ideologically inclined to believe Jackie. (Erdely, for instance, opened her “reporting” by speaking with the biased experts Wendy Murphy and David Lisak, and all of her interview subjects appear to have been people who agreed with her on the existence of a campus “culture of rape.”) Rolling Stone’s groupthink meant that every inconsistency in Jackie’s story, or unusual behavior on her part, was explained away as “consistent with other victims of sexual assault.”

And so behavior that might have raised red flags—Jackie claiming that her attacker would retaliate against her if Erdely contacted him (while she didn’t worry about retaliation once the article appeared); Jackie discouraging Erdely from contacting friends who could corroborate her tale; Jackie changing the number of assaulters—was dismissed or excused.

The only problem, of course, is that Jackie was a fabulist. Rolling Stone’s argument that the behavior of an actual victim and the behavior of someone inventing a gang rape are identical should raise significant concerns about the always-believe-accusers mantra.

Second, the Rolling Stone affidavits make clear that campus activists, and every UVA employee dealing with sexual assault matters that Erdely encountered, also believed Jackie. Rolling Stone highlighted the point for legal reasons: if all of the UVA apparatus, including Eramo, believed Jackie, how can Eramo sue Rolling Stone for publishing an article based on Jackie’s fantasies?

From the standpoint of policy, however, this material is chilling: if the UVA sexual assault bureaucracy believed that someone like Jackie was a victim, how could the process of which they’re a part possibly be fair? Ironically, since Rolling Stone, UVA’s policy has only grown more unfair, as the recent FIRE lawsuit indicated.

In this respect, Erdely actually had a great story—how a campus atmosphere of moral panic was exploited by a fabulist. But she was too closed-minded to see it.

Third, it’s striking that even as their case collapsed, those who Jackie had fooled didn’t change their underlying assumptions. Erdely, for instance, stated in her affidavit that he she had any sense that Jackie might be lying, she simply would have used another vignette to prove her campus “rape culture” thesis—without even stopping to wonder whether her initial assumptions, which had led her to trust Jackie, were wrong. Sara Surface, a UVA activist, told Erdely that Jackie was no longer credible—but rationalized, “I think trauma has done something to the details.” A few days later, another UVA activist, Alex Pinkleton, reminded the Washington Post that “the majority of survivors who come forward are telling the truth.” Pinkleton didn’t explain how the minority—who, by her framing, were not telling the truth—could be “survivors.”

And, perhaps, my favorite item from the affidavits: Editor Sean Woods said, “I stand by the statement that we verified the perpetrator’s existence.” If the case goes to trial, perhaps Rolling Stone could summon Jackie’s invented attacker, “Haven Monahan,” as a witness?

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.

The Washington Post Joins the Rape Culture Crusade

Stuart Taylor and I have a jointly authored piece debunking the Washington Post series on campus sexual assault. The collection of articles, accompanied by a misleading poll, has also received searing, effective criticism from Ashe Schow in the Washington Examiner, Robby Soave in Reason, and David French in NRO. I recommend each piece.

The series included the work of four reporters, plus a lengthy, mostly cell-phone poll—so the Post clearly devoted an extraordinary amount of resources to this project. The framing of the articles makes clear that the Post has an intense ideological commitment to the administration’s “rape culture” narrative. Beyond the specific critiques mentioned above, four general comments about the Post’s effort.

Related: WAPO’s Faulty Rape Poll Muddies the Issue

(1) Mix and match. The Post’s apparent goal was to overwhelm readers with story after story of college students victimized by sexual assault. The series included a page in which 49 “sexual assault survivors tell their stories.” The page was framed with an explanation that “the Post’s policy is not to identify victims of alleged sex crimes.” The “alleged” here is rather odd, since if the crimes were only “alleged,” how did the Post reporters determine their subjects were “sexual assault survivors”?

Not an Attacker, Not a Student

Many of the Post’s stories—if even close to true—were sexual assaults. (That said: the Post almost never spoke to the alleged attacker.) But to get its large number, the Post included alleged assaults that occurred off-campus by non-student perpetrators. It led with a story that doesn’t appear to have been a sexual assault at all, and in which the alleged attacker wasn’t a student at the same college as the alleged victim.

Then there are stories like one from a former student at the University of Nebraska, Omaha. She lived with a man (who she had started dating in high school) for several years. “He would continue to berate me until I gave in,” she recalled. “It was never taught to me, that that was an option, to really say no and mean it.” Post reporters paraphrase her perspective in the following way: “She said she and her boyfriend grew up believing that in a relationship, it is the woman’s job to meet the needs of the man. She believed that if she withheld sex, it would physically harm her boyfriend.”

Related: Amherst’s Version of Kafka’s ‘The Trial’

The Post doesn’t say what percentage of female college students live in off-campus houses with long-term boyfriends, but I would imagine the number is very small. Yet casual readers of the Post series who simply looked at the paper’s display and didn’t individually click each of the 49 stories doubtless would not have expected the UNO former student’s story, and it’s hard to see what possible public policy ramifications of this story could have.

(2) Indifference to prevention. As Robby Soave observed, the Post-Kaiser poll indicated that students considered excessive alcohol use a more serious problem on campus than sexual assault. The vast majority of cases that have attracted public attention since 2011 have involved one or both parties drinking lots of alcohol. Soave has suggested that the best way to deal with this problem is to lower the drinking age to eighteen. (I agree.) Another approach would be for schools to take a BYU-style approach and simply make use of alcohol a disciplinary offense.

No Interest in Rape Prevention

Either way, however, the goal here would be to prevent assault, something to which most activists on this issue appear indifferent. Rather, the goal is to (a) dramatically expand the definition of what constitutes sexual assault, but just for college students; and (b) make it all but impossible for an accused student to defend himself in campus tribunals.

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

Ironically, the Post series coincided with publication of a study in the New England Journal of Medicine, which showed how training female undergraduates to resist assault had been “successful in decreasing the occurrence of rape, attempted rape, and other forms of victimization among first-year university women.”

This sounds like excellent news—but instead it has been met with outcry by victims’ rights advocates. Here’s Dana Bolger, an Amherst graduate who was a colleague of Amherst accuser AS in the campus victims’ rights movement, dismissing the significance of the study: “As a friend of mine once said, ‘If you’re pushing a woman to change her behavior to ‘prevent’ rape, rather than telling a perpetrator to change his, you’re really saying, ‘Make sure he rapes the other girl.’ There will always be another girl at the bar.”

Prevention, it seems, is not a legitimate goal.

The Most Troubling Finding

(3) Burying the lede. The quartet of Post reporters hyped the dubious 20 percent claim, without providing any context (that is: if 20 percent of college students are sexually assaulted, then colleges have a much higher violent crime rate than the most dangerous cities in the country, something virtually no one actually believes). But the reporters basically ignored the most troubling finding from the poll: whether students found it more unfair that a guilty student got away or an innocent student was falsely punished. By a 49-42 margin, today’s college students—tomorrow’s legislators—found it more unfair that the guilty went free. (This could be called the reverse-Blackstone effect.) Among college women, the margin was 56-36.

The question, actually, was a good one, since there is, at least in a crude way, a connection between enhancing procedural protections for the accused and running the risk that more guilty will go free. In an important editorial from the legal publication XX, which called for the administration to withdraw the “Dear Colleague” letter, the editors noted, “We can all agree that people who commit crimes should be brought to justice. At the same time, most of us share a profound commitment to affording those accused of a crime with certain rights—to know the accusation, to confront the accuser, to cross-examine witnesses and to due process. We know that each of these rights means that an accusation is less likely to result in a conviction. Yet no serious person proposes doing away with those basic rights, solely for the sake of increasing the conviction rate. If a mere accusation is sufficient to mete out punishment, we know how this story ends.”

No serious person might want to do away with these rights, but lots of people on campus do. To the extent that even students believe the principal problem is a need to punish the guilty, expect little interest among undergraduates in protecting due process. And this concern, again, comes amidst a process that already is deeply unfair to accused students.