Tag Archives: rape accusations

Alleging Sexual Assault When an Affair Ends

Have you noticed how many of the campus accusations of rape/sexual misconduct are reported after the 3rd, 4th, or 5th sexual encounter? It’s possible, of course that rape-minded males on campus like to let a relationship proceed a while before forcing themselves on a woman. Or it could be that something happens in the midst of a sexual relationship (or a series of hook-ups) that sours the female on a sexual partner. For instance, she may see him with another woman, or she may run into a female from the campus gender lobby and learn that all men are pigs and all disappointing sex can be counted as rape. After all, the famous Catharine MacKinnon said as much:

“Politically, I call it rape whenever a woman has sex and feels violated.” (Feminism Unmodified, 1987). Of course, she may feel violated by his rudeness, promiscuity or failure to call the next day. Whatever. It’s all rape. Or so says a leading voice in the feminist canon.

This meditation is prompted by a victory of sorts by one of the railroaded males. “John Doe,” a  student at James Madison University, was cleared of sexual misconduct,  but convicted on appeal and expelled under a blizzard of Kafkaesque procedures (no notice of the meeting, no names of judges provided, no copy of the new charges—though he was allowed to read it and take notes). Elizabeth K. Wilson, an Obama-appointed federal judge, ruled that Doe’s suit alleging lack of due process can proceed. Accounts of the case are provided by Robby Soave of Reason (“The accusation is among the more dubious ones I‘ve ever read about.”) and Ashe Schow of the Washington Examiner.

On appeal, the accuser was supported by statements from her residential advisor and her Title IX representative. Both say that the first of five sexual encounters between accuser and accused was not consensual. (The accuser’s roommate said it was consensual). The pair exchanged friendly messages after the first encounter, and she took the initiative in other sexual meetings. After the third, however, she showed up at his dorm carrying her pillow, but left when she saw another woman sitting on his bed. Hmmm. Could this have been a MacKinnonian violation?

Railroading the Innocent in Cincinnati

By KC Johnson

The University of Cincinnati has a fascinating response to a recent lawsuit filed by two students alleging serious misconduct by UC and several of its administrators in sexual assault proceedings: “Even accepting Plaintiffs’ allegations as true, they received constitutional due process protections.”

Since UC informed them of the charges, and gave them a hearing, courts can do nothing—no matter the extent of the hearings’ biases, and no matter how indifferent to the truth the university was. That such an argument could come from an institution of higher learning is appalling—but, by this point, not surprising.

The lawsuit, which you can read here, involves two separate cases—one filed by a former UC undergrad (who then transferred) and the second by a former UC law student (who has since graduated). The first case involved a claim that the male student sexually assaulted two female students (in the same room). In a relative rarity in campus proceedings, the accusers also filed a complaint with police—who promptly uncovered significant evidence that undercut their stories.

No Due Process, Thanks

One claimed, for example, that she didn’t know how the male student got into her dorm, but videotape showed her standing by as the second female student signed in the male student to the dorm. She claimed not to have used marijuana, only to later admit that she had. She claimed that the male student got into her bed without her knowledge even though she had previously told police that she had undressed in front of the male student, gotten into her bed, and then he quickly joined her in bed.

The other student alternatively claimed to have been passed out and not passed out during the alleged assault, and claimed to have been passed out at a time that the police uncovered her sending text messages. Explosively, one of the detectives investigating the case testified that his colleague believed that UC had “obstructed” the flow of the investigation, seemingly to minimize the accusers’ credibility problems, and that UC’s general counsel “was trying to impede our train of thought and our investigation.”

UC nonetheless found the accused student guilty of sexual assault. It did so after an almost comically biased procedure. A UC administrator informed the accused student, “Neither party has any burden of proof.” (This assertion misstated UC regulations; even the preponderance of evidence threshold, which UC uses, imposes a nominal burden of proof on the school.) The accused student went before a disciplinary panel trained with inflammatory, unsubstantiated allegations such as, “The average rapist rapes 14 people before he ever spends a night in jail,” or “1 in 4 women will survive rape and/or sexual assault during her time in college.” See citations to the discredited David Lisak’s work on undetected rapists and misstatements of UC policy (the training asserts that consent needs to be “verbal and “ongoing,” and that the female student must be “sober,” even though UC’s actual policy contains no such requirement).

Male in Mattress Case Sues Columbia

An accompanying guide from the UC judicial office repeatedly labels accusers as “survivors” (“All reported sexual assaults will be taken seriously and every effort undertaken to assist survivors”)—even though, of course, at the time of the report, there’s an accuser and an accused, not a “survivor” and a perpetrator. Such sloppy use of language presumes a crime before any investigation occurs. It’s no wonder that since 2010, in every case for which a resolution is available, UC has found students accused of sexual misconduct guilty.

The accused student asked to record his disciplinary hearing; UC refused permission. UC policy prohibited him from directly cross-examining his accuser; questions that he submitted for asking went unexplored by the panel. The hearing panel refused to examine either the surveillance video of the students walking into the dorm or text messages from the accusers’ phones. The guilty finding seemed predetermined. He successfully appealed within the university, only to see the cases return to the same panel, which reaffirmed a guilty finding regarding one (but not, oddly, both) of the accusers.

Daniel Cummins, director of UC’s office of judicial affairs, informed the second student who was enrolled at UC’s law school that “a preponderance of the evidence burden of proof applies. Neither the complainant nor the respondent bears this burden of proof in an ARC hearing.” That UC’s chief disciplinary officer doesn’t understand what the preponderance of evidence requires speaks volumes as to the university’s unfairness.

Cummins handled the second case in other odd ways. Even though the alleged sexual assault occurred off campus, he insisted on having the UC disciplinary process hear it. Based solely on the filing of allegations, he informed the accuser’s thesis advisor that the student “has recently been the victim of behavior that violates our sexual harassment policy.” (This revelation suggested he had made up his mind before even speaking to the accused student.) The accused student also faced an interim punishment—including a prohibition on entering the library—based solely on these uninvestigated allegations.

More Extreme Procedures Coming?

During the hearing, one of the panelists scribbled a note that reflected the contemptuous approach often seen toward due process at the campus level: “Also ->this is NOT a court. We don’t have to do things like in law school.” The accused student was found guilty, and appealed. This appeal, too, was granted—and the case then remanded back to the same panel that had found him guilty in the first place. The second hearing featured the accuser attacking the accused student as a rapist and then storming out of the room before even UC’s permitted cross-examination could occur. The panel again returned a guilty finding.

UC retorted that none of this really matters—that the university only was obligated to hold a hearing and to inform both students of the charges against them, obligations that UC fulfilled. A fair process that might determine the truth, UC filings suggested, is beyond the legal obligations for any university. (Left unsaid was why a university wouldn’t want such a process.) UC purports to concede, citing relevant 6th Circuit precedent, that “a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing.”

But to justify its denial of basic fairness to the two students in these cases, the university relied on Jackson v. Dorrier, a 1970 case involving a high school policy prohibiting male students from having long hair. (“To hold that the relationship between parents, pupils and school officials,” the 6th Circuit ruled, “must be conducted in an adversary atmosphere and accordingly the procedural rules to which we are accustomed in a court of law would hardly best serve the interests of any of those involved.”)

It’s remarkable that UC could consider a grooming policy for high school students to be somehow relevant to whether a college student is entitled to fundamental due process when facing a life-altering sexual assault allegation. But perhaps not too surprising: UC also contends that even if its policy placed the burden of proof on the accused (which university briefs somewhat ineffectively denied), doing so “would not compel a finding that due process was violated.” Ponder that again: a public university has publicly affirmed that a policy that presumed students guilty of sexual assault would be constitutionally acceptable.

The university also justified its decision to impose interim punishments on students accused of sexual assault, on grounds that “federal regulations require the University to offer such [interim] accommodations or interim measures to victims of sexual assault” [emphasis added]. At the interim stage, of course, there is no victim—there’s an accuser and an accused. And Cincinnati’s filings also claimed that the Dear Colleague letter “directed” it to follow certain procedures, even though two high-ranking Education Department officials conceded last year that departmental guidance letters were just that—guidance, not obligations on universities.

UC seems to go out of its way to envision its undergraduates and even law students as the equivalent of high school students. For the proposition that it’s OK to deny students accused of sexual assault any right to cross-examine their accuser, the university cited a 2014 6th Circuit case involving a high school freshman. And for the proposition that it’s OK to deny students accused of sexual assault meaningful right to cross-examine their accuser by requiring questions to be funneled through a panel that might modify or simply ignore them, the university cited a Connecticut case involving a high school senior.

Since UC sees its students as glorified high schoolers, perhaps parents would be better off sending their children to another university.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.

Office For Civil Rights Goes After Michigan State

However harmful the effects of the “Dear Colleague” letter to colleges and universities from the Education Department’s Office of Civil Rights, the document is a floor, not a ceiling, to OCR’s efforts to weaken campus due process. Resolution letters between OCR and various universities have allowed the agency to go well beyond the “Dear Colleague” letter’s terms. The Yale letter approved the “informal” process that allowed the university to brand a student a rapist without the accused having an opportunity to present evidence of his innocence. SMU and SUNY letters authorized the re-opening of cases where the accused student had been found not guilty, and oozed contempt for the idea that trained law enforcement personnel, instead of campus Title IX bureaucrats, should investigate sexual assault allegations. (Hans Bader has analyzed other resolution agreements, such as that with Tufts.) And the Montana letter envisioned a “blueprint” to weaken free speech on campus.

OCR’s most recent target, Michigan State, opens up a new inroad in the assault on campus due process.

Student A

A student identified only as “Student A” reported her alleged assault to the police, but not to the university, which instead learned about her allegations through media reports. The allegations weren’t very credible, as the police never filed charges. Nonetheless, when OCR discovered the charges, it told MSU that it needed to independently investigate the allegations. The university’s own investigation reached the same conclusion as the police—the accuser’s claims were not credible.

MSU nonetheless punished the accused students. As its investigation proceeded, the university forbade the accused students from contacting the accuser, and moved them out of their rooms to a different dorm, apparently well away from the accuser’s area of campus—which addressed the main concern the accuser said she had. The accused students apparently didn’t try to re-enter their old dorm, and the dorm to which they were reassigned was (according to the OCR letter) far away from their dining hall and their classes.

The accuser nonetheless cited the move in a Title IX complaint to OCR, apparently operating from the premise that students accused of sexual assault should be kicked out of all dorms, whether or not the accused students were guilty, and before any investigation had occurred. The accuser also claimed that the accused students violated a no-contact order—because, she reported, she had entered a university building and peered into a private tutoring room (through a glass panel in the door), where she spied the accused students meeting with a tutor. For reasons unexplained, she then stood outside the closed door for 30 minutes. There’s no evidence the male students saw the accuser until they left the room, but she interpreted their encountering her—after, to reiterate, she waited 30 minutes in a hall directly outside a room in which they were studying—as a violation of the no-contact order.

Even OCR conceded that this episode—which was, after all, directly initiated by the accuser—could not be held against the accused. That such an episode formed a key element of the accuser’s Title IX complaint demonstrates why reporters should be very skeptical when OCR reveals there’s a Title IX inquiry against a school, but refuses to release the actual complaint so outsiders can see the specifics.

Despite the record, OCR concluded that MSU had violated Title IX in its handling of Student A’s case, because the university took too long to conclude that Student A’s allegations were unfounded. This delay in initiating an investigation (based on a complaint the accuser never filed with the school) violated Title IX. OCR also expressed concerns about the structure of MSU’s policies, which at the time “required that a disciplinary hearing be conducted by the student judicial body before any action could be taken against a student accused of sexual harassment.” But the agency didn’t find a Title IX violation here, since by the time of the resolution letter, the disciplinary hearing requirement (which should, in fact, be an obvious form of due process) had been eviscerated.

To reiterate: Student A’s allegations proved unfounded, and she never filed a complaint through the university process.

The Campus Climate

As described in the resolution letter, Michigan State is a university whose leadership is obsessed with sexual assault. (According to Clery Act figures, there were 27 reported sexual assaults in 2013 at MSU, from an enrollment of about 35,000 students.) In 2013, the university initiated what it called a “No Excuse for Sexual Assault” campaign, designed in part, according to the OCR letter, “to debunk common myths regarding sexual assault.” MSU “distributed posters with images and messages intended to dispel various myths regarding sexual assault”; handed out shirts, stickers, buttons, and brochures with the slogan at various university events; developed a “No Excuse” Facebook page; created a special help line for students who wanted to report a sexual assault; and translated all of these materials into different languages—including Korean, Arabic, and Chinese. Students interviewed by OCR recalled these initiatives, along with material from the two required training sessions on sexual assault directed at all incoming students. (Athletes receive additional training.)

It appears that MSU’s training is creating some myths, rather than dispelling them. In a survey of all first-year and transfer students, 74.9 percent (incorrectly) said it was “false” that “someone can still give consent for sex if they are using alcohol or drugs.”

Yet to OCR, at Michigan State, a “sexually hostile environment existed for and affected numerous students,” while “the University’s failure to address complaints of sexual harassment, including sexual violence, in a prompt and equitable manner caused and may have contributed to a continuation of this sexually hostile environment.” The agency seemed troubled by findings (from campus surveys) that students would be more likely to report sexual assault to the police than to the university office that handles college investigations—as if, somehow, this is a bad thing. The resolution letter also went out of its way to include extraneous comments from random students: “OCR heard,” for instance, that a student had reported being raped at a fraternity shortly before the investigator came to campus. Well: Had she? Though this information presumably would have been very easy to ascertain, OCR investigators seemed uninterested in finding out. Another: “Many students referenced a walkway on campus near the river (the river trail) as being routinely referred to by students as the ‘rape trail.” This sounds ominous, until OCR informs us that this reputation dated from events in the 1970s or 1980s—that is, before 99.99 percent of MSU’s current undergrads were born.

Finally, OCR considered it a sign of a troubled campus culture that “only 7.4% of students were able to correctly identify the name of the University’s Title IX Coordinator,” while “71.5% of the students surveyed correctly identified the University’s head basketball coach.” That this churlish item made it into an official letter from a federal agency is astonishing. Given that miniscule percentages of students know the identities of even high-ranking academic bureaucrats, I wonder how many students know the name of the MSU provost, or the dean of the humanities (who are, after all, a far more appropriate comparison group for the Title IX coordinator). It’s remarkable, in fact, that according to the survey, around 2000 MSU students know the name of a mid-level bureaucrat at their university.

And what of the language that “71.5% of the students surveyed correctly identified the University’s head basketball coach”? Michigan State actually has two head basketball coaches: Tom Izzo, longtime coach of the men’s basketball team (including in 2000, when his team won the national title); and Suzy Merchant, who in her eighth year has emerged as one of the Big Ten’s best women’s basketball coaches. The 71.5 percent figure obviously refers to Izzo; by describing the university has having only one basketball coach, OCR—the agency devoted to gender nondiscrimination in athletics—chose to overlook the women’s basketball coach to make its political point.

Policy Abandoned

In early 2012, during the course of the investigation, MSU abandoned its previous policy (which required a hearing) that vexed OCR, and replaced it with a modified version of the single- investigator model. Student allegations of sexual assault are directed to the Office for Inclusion and Intercultural Initiatives (or “I3”). A I3 investigator speaks with the accuser, accused, and any other relevant witnesses, looks at any evidence the two sides present, and then produces a report deciding whether it’s more like than not that the accused is a rapist. The accused student has no opportunity to cross-examine his accuser—indeed, he doesn’t even see the evidence compiled against him until the investigator produces his report.

Once the I3 investigator produces his report, the accused student can appeal to a hearing—but under very circumscribed conditions. At the hearing, the OCR’s resolution letter noted, “neither side can ask questions of each other”’—and the accused student now has the burden of proof, a burden that goes well beyond the preponderance of evidence. He must “show that the I3 decision was arbitrary and capricious or had procedural problems.”

Such a one-sided procedure unsurprisingly has produced one-sided results. The OCR letter reported that MSU administrators indicated “that they have not yet had a case where the administrator or hearing board believed that the respondent met his or her burden of proof.”

In more than three years, then, MSU’s procedure has never resulted in an accused student being found not culpable once an investigator has decided otherwise.

OCR’s response? Michigan State procedures tilt too heavily—in favor of the accused. The agency found “that the University has not provided a prompt and equitable grievance procedure for the resolution of student and employee complaints alleging any actions prohibited by Title IX.” Investigations, OCR sniffed, take too long—at 90 days, with an additional 30 days to write.

OCR also faulted MSU’s policies for failing to unequivocally state that “the University will take steps to minimize the burden on the victim” regarding “interim measures while the investigation is pending.” But, of course, while “the investigation is pending,” there is no victim—the allegation is alleged, not established.

Unlike the SMU and SUNY letters, the Michigan State resolution letter doesn’t explicitly endorse any new, troubling policies. But it sends a most troubling message: even a university with MSU’s one-sided campus climate, and with MSU’s one-sided policies, will be found in violation of Title IX by the current OCR.