Tag Archives: sexual assault

Weaponizing Title IX at Middlebury

Last week came two more court decisions involving due process and campus sexual assault. The first, which involved a student at Case Western Reserve University, had Judge Christopher Boyko (a George W. Bush appointee) ruling that it was plausible the accused student was innocent and the CWRU had manufactured inculpatory evidence—but there was nothing he could do to remedy the problem. The second, which involved a student at Middlebury College, had Judge J. Garvan Murtha (a Clinton appointee) issuing a preliminary injunction preventing Middlebury from expelling the student. You can read Judge Murtha’s decision here.

The Middlebury case was factually and procedurally complicated. But it offers three issues of importance:

(1) Title IX can be weaponized, with the accuser using the threat of a complaint with the Office for Civil Rights (OCR) to effectively force a college to do her bidding.

(2) In what seems like a first, a college assumed jurisdiction over a sexual assault case that involved an allegation filed by a student from another school.

(3) The case provides a rare behind-the-scenes view of the extraordinarily one-sided training that “impartial” campus adjudicators receive.

The Incident

In fall 2014, a male junior applied to study abroad for the semester; Middlebury’s study abroad program is run not by the college but by an institution called School for International Training (SIT), which is based in Brattleboro, around two hours from the Middlebury campus. SIT is a U.S. university, subject to Title IX, and Middlebury’s guidelines make clear that students in the program will be subject to SIT rulings for honors code violations while they’re abroad. The guidelines are silent about student conduct issues.

The background to the allegation was rather tawdry. On November 7, 2014, after what appears to have been a night of considerable drinking, the male student came back to his room with two female students in the study abroad program, at least one of whom wasn’t from Middlebury. His roommate was away, and so the three of them decided to sleep together in his room, pushing the two beds together, with the male student sleeping between the female students. At some point in the evening, the male student became sexually active with one of the female students (who initiated this contact remains in dispute). The other student (a friend of the female student, and a former romantic partner of the male student) eventually saw what was going on—and got up, retiring to her own room.

The incident was, at the least, embarrassing; it threatened the social equilibrium between the female student and her friend. But the female student soon claimed that the intercourse was nonconsensual; she filed a sexual assault claim through SIT. (There’s no indication she went to the police.) SIT, in turn, informed Middlebury that it planned to investigate the allegations; it then would conduct a hearing according to its own policies (which conform to OCR guidelines). Middlebury made no attempt to assert jurisdiction over the case. SIT convened a hearing at which both parties, and the other student who was in the bed, testified. The hearing also considered contemporaneous text messages between the three. Both the transcript of that hearing, and the text messages, were not included in the public documents filed in the case, so it’s impossible to comment confidently about the merits of the allegation. But the SIT hearing found the male student not culpable for sexual assault. The accuser elected not to exercise her OCR-right to appeal the finding at SIT.

That decision, it would seem, should have ended things. An accused student had been charged. A hearing had been held, at which he was acquitted. The accuser did not appeal.

Middlebury Intervenes

But the accuser elected to pursue another path. She still didn’t go to the police. Instead, working through the Title IX coordinator at her own institution, she wrote to an administrator at Middlebury, with an ill-concealed threat: “I am pursuing,” said she, “a complaint with the office of [sic] civil rights.” And suddenly Middlebury, which heretofore had unquestioningly accepted SIT’s coordination of the case, decided that it would conduct a second investigation—even though the accuser wasn’t a Middlebury student. To the best of my knowledge, this is the only publicized case since issuance of the “Dear Colleague” letter in 2011 in which an institution has asserted jurisdiction over a claim that didn’t involve two students from the college. If established as a precedent, the expansion of the parallel justice system championed by the Obama administration would be dangerous, and massive.

In addition to her threat about filing a complaint with OCR, the accuser passed along information about the case that she said corroborated her view of events. She also claimed that SIT’s investigation had violated Title IX because SIT’s investigator hadn’t spoken to her academic advisor (why that would be relevant the accuser didn’t say) and hadn’t spoken to unspecified witnesses (what these witnesses might or might not have said the accuser didn’t tell Middlebury). Though OCR, not Middlebury College, has authority to decide whether SIT’s actions conformed to Title IX, Middlebury Dean Karen Guttentag had heard enough. The college would effectively set aside SIT’s finding, the dean later testified, based on the accuser’s “perceptions of SIT’s investigation and hearing process.” You can read the dean’s affidavit here.

This rationale was nothing short of extraordinary. The files contain no indication that Guttentag had asked anyone at SIT whether the accuser’s “perceptions” of SIT procedures were based in reality. But with a clear threat that if Middlebury didn’t go along, the accuser would add the college to her already-filed claim against SIT, the college leapt into action, more than two months after the allegations and well after SIT had already acquitted the student.

Guilt and Middlebury

Middlebury’s decision meant that the accused student would be subjected not only to a double-jeopardy scenario, but a very different procedure. Unlike SIT, Middlebury has adopted the Obama administration’s preferred approach of bypassing a hearing (lest it re-traumatize an accuser who, at that stage of the process, the college doesn’t know is telling the truth) and turning things over to a single investigator. The investigator submits a report to a college administrator, who then interviews the accused student, but in every case since 2012 in which the investigator had branded the accused student a rapist, the college has accepted the finding. Middlebury referred this case to an investigator named Nell Coogan, whose website indicates no background in criminal investigation or law enforcement.

Middlebury has clear ideas on how sexual assault investigations should be conducted; the firm Margolis Healy trains college officials on the matter. The firm’s guidelines, as based on a 2012 training session, seem designed to ensure that the college gives every conceivable benefit of the doubt to the accuser. You can see the guidelines here; note how heavily Margolis Healy relies on the now-discredited researcher David Lisak, who is mentioned eight times, to explain how colleges should respond to sexual assault allegations.

Investigators, Margolis Healy instructed Middlebury officials, must not approach the case with “skepticism.” Indeed, they must “start by believing” the accuser. The discussion with the accuser must not involve the investigator interrogating her; “This is not the time for ‘just the facts.’” (If not then, when?) The investigator must avoid “victim blaming” questions, such as asking the accuser why she did something. “Use what we know” about campus sexual assault—that the “non-stranger sexual offender” says to himself, “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.” While the investigator must “start by believing” the accuser, the Middlebury official must begin by wondering if the accused is “who he said he is.” Margolis Healy counseled Middlebury investigators against using the term “accuser” (“victim” or “survivor” is preferred).

The report prepared by the investigator “should not include . . . consensual language” or anything indicating “mutual participation.” But what if the intercourse was consensual, or involved mutual participation? Nor should the investigator’s report include the following language: The “victim has inconsistencies with her story.” But what if she does? Nor should the report conclude that “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect.” But what if the accuser isn’t credible? According to Middlebury’s training, that outcome seems impossible.

With this background, and given the looming threat of a Title IX complaint if Middlebury didn’t do what the accuser wanted, the college returned a guilty finding, and recommended expulsion days before the accused student was to begin his final year at Middlebury. The accused student sued, noting that the college’s decision not only would end his Middlebury career, but also would rob him of a job offer that he had already lined up after graduation.

The Court Case

In filings before Judge Murtha, the two sides partially re-litigated the case. The accused student contended that SIT’s finding was correct, and that the accuser had substantially enhanced her allegations over the course of the inquiry. Middlebury countered that the accused had changed his story, and denied that kicking the accuser out of school and costing him his job would constitute irreparable harm for him. Middlebury administrators and its investigator also produced unintentionally comical affidavits claiming that the guilt-presuming training that Middlebury arranged for them to receive had no impact on how they investigated sexual assault allegations.

Judge Murtha understandably was skeptical about college officials’ newfound commitment to objectivity. His ruling was a preliminary one, but he noted that “Middlebury’s policies did not authorize a second investigation and de novo evaluation of the allegation of sexual assault after it had been decided in Plaintiff’s favor by SIT, the sponsor of the study abroad program during which the alleged misconduct occurred, to whose discipline Plaintiff was subject.”

The accused student thus can complete his senior year. But how will Judge Murtha rule on the merits of the case?

The Odd Sexual Accounting at Yale

Since 2011, as part of its settlement with the Department of Education’s  Office for Civil Rights, Yale has published biannual reports that provide brief summaries of each sexual assault allegation at the university. (Yale is the only university in the country to have such an obligation.) I’ve analyzed each of these reports, issued by the office of Deputy Provost Stephanie Spangler.

Previous reports have revealed such items as: the “resolution” of a complaint against a professor, whose chair then would “monitor” him, even though he was never even informed of the complaint; odd investigations based on anonymous complaints—and sometimes with anonymous targets; concerns that Yale was using Title IX to trump university members’ free speech rights; the punishment of a student that even Yale’s due process-unfriendly system had found not culpable for the allegations against him; and students charged under a vague standard that included “emotional or economic abuse” by “roommates.”

The newest Spangler Report, covering all incidents in the first six months of this year, has just been released. The report is unusually bare-bones, even by Yale’s standards, but it does provide insight on two broader statistical debates about sexual assault on campus.

The 1-in-5 Claim

Between January 1 and June 30, six Yale undergraduates, or 0.2 percent of the 2678 female undergraduates at the university, filed sexual assault complaints with the school. (Three graduate students did so, and there were three complaints filed by non-Yale affiliates.) Of these complaints, only three were reported to the Yale Police Department. (None appear to have been reported to the New Haven Police Department.) Three more were formally handled through Yale’s University-Wide Committee (UWC), a due process-unfriendly procedure that I’ve written about previously. In sharp contrast to past years, zero cases were handled through informal complaints, a process that doesn’t promise an accused student the right to present evidence of his innocence. (This is the process that ensnared former Yale quarterback Patrick Witt.) But the newest Spangler Report suggests that the informal complaint procedure has effectively been replaced by the Title IX coordinator, from whom seven of the thirteen overall cases proceeded.

To place that statistic in context: the majority of sexual assault cases in the first six months of 2015 were handled by a Yale administrator whose job depends in part on keeping the university in OCR’s good graces, and without any procedural protections, of any type, for an accused student. (Under Yale procedures, an accuser can still file a formal complaint after working through the Title IX office.)

What of the sexual assault cases filed by undergraduate students? One of the six, the Spangler Report reveals, was simply withdrawn. So the university actually considered five undergraduate sexual assault cases in the first six months of 2015.

Of these five, one undergraduate was found culpable of “nonconsensual sexual activity.” His punishment? Probation and received a written reprimand—making it hard to believe the allegations he faced resembled what most people consider to be sexual assault. A second case couldn’t be substantiated by even the Title IX coordinator. A third accuser made a complaint (of “sexual touching”), identified the alleged party, but then withdrew the complaint—after which point the accused student nonetheless received a minor punishment (having to undergo “training on sexual consent”). A fourth case is still pending. The fifth involved a case in which the person accused, who was arrested by the Yale Police Department, wasn’t a Yale student.

This list confirms Spangler’s caution that Yale defines sexual assault in a way that “encompass[es] broad ranges of behavior,” since the university “uses a more expansive definition of sexual assault” than does the federal government (or the New Haven Police Department). Indeed, of the five January-June cases in which a Yale undergraduate alleged that another Yale undergraduate sexually assaulted her, none would appear to constitute “sexual assault” as the term is commonly understood.

According to the university’s own figures, then, the 0.2 percent sexual assault percentage is, if anything, too high for the January-June period. The commonly cited 1-in-5 statistic, on the other hand, would suggest that there should have been at least 67 complaints of actual sexual assault—instead of, at most, (depending on what precisely was charged in the case involving the non-Yale accused party) one. As we all know, sexual assault is an under-reported crime. But it would seem there are few environments nationally as favorable to victims filing complaints than the Yale University bureaucracy—which, after all, dramatically expands the definition of what constitutes sexual assault and still can’t get anywhere close to what would be expected from the 1-in-5 figure.

The Reports and False Rape Claims

A robust debate (from which I’ve largely abstained) exists over the question of what percentage of college rape reports are false. But clearly some percentage are false; even the now-discredited David Lisak conceded the falsity of around 6 percent of rape claims. It’s plausible to infer that the percentage of false claims on college campuses would be higher than in the general public. A situation in which communities of 18- to 22-year-olds living together might provide motives for false claims that are less common elsewhere. (Consider the Amherst case: making an almost certainly false claim gave the accuser an excuse for seducing her roommate’s boyfriend to the friends she lost, and an opportunity to fit in in with her new circle of friends, who were extreme victims’ rights advocates.) In any case, there’s no reason to believe that false rape reports occur at a lower percentage on college campuses than elsewhere.

Since July 2011, according to the Spangler Reports, there have been at least 92 sexual assault claims filed by Yale students (undergraduate and graduate), along with 18 cases of “intimate partner violence,” which the reports started distinguishing from sexual assault claims beginning in July 2013. With around 100 claims, therefore, it stands to reason that at least a few Yale students would have been found to have filed false reports. Instead, since July 2011, there have been zero students disciplined for filing a false report. There have been zero students who even faced a hearing for filing a false report.

The current Spangler Report does, however, contain a first: the disposition of false report allegation. The outcome? “The UWC found no factual basis for the respondent’s complaint and therefore did not accept jurisdiction.” In other words, the student didn’t even have the opportunity to present his evidence in a hearing. This is one of only five sexual assault-related claims since 2011 in which the Yale UWC has refused to “accept jurisdiction.” The other four involved two cases where the accused student had already withdrawn from the university; one where the accuser hadn’t provided sufficient information in her complaint; and one where an accuser appears to have refiled a claim that the UWC already had adjudicated and rejected. The current rejection, therefore, is the only one for which the UWC declined to proceed because it wouldn’t consider the specific allegations made by the student.

This result isn’t in any way surprising. Enormously powerful incentives exist for universities not to adjudicate false report cases, ranging from the benign (a fear that doing so might discourage actual victims from reporting) to the less defensible (an administration’s fear of almost-certain protests from certain quarters of the faculty, campus activists, or their allies in the media). But Yale’s handling of this issue provides a reminder that in the university environment, there’s virtually no possibility that a student who files a false rape report will be punished. That the system, on the other end, provides insufficient procedural protections for a falsely accused student to defend himself dramatically increases the chances of campus tribunals rendering unjust results on this issue.

Finally, the current Spangler Report contains an item that illustrates the potential danger to all in an environment like the current one on college campuses. An administrator informed the Title IX coordinator of a “rumor” that a graduate student inappropriately “engaged in personal relationships with undergraduate students.” Again: a rumor. The Title IX officer investigated and concluded that she “could not substantiate the allegations.” But she nonetheless “referred the matter to the respondent’s supervisor for additional oversight.”

Maybe the student behaved inappropriately. But it’s possible that this was an allegation leveled with ill intent. Either way, Yale’s Title IX office took an action that at least risked damaging the relationship between a graduate student and his supervisor—a relationship that’s critical to the student’s future career prospects—based on what the Title IX coordinator herself conceded was an unsubstantiated rumor.

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.

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.

Wendy Murphy Comes to the University of Virginia

The Office of Civil Rights’ mandated procedures for
investigating sexual assault are tilted heavily against the accused party. The
institution can
hire “neutral fact-finders” who produce the equivalent of a
grand jury presentment, deny the accused an advisor of his choice, add
witnesses that the accused student does not request, forbid the students from
cross-examining his witnesses, and judge the student according to a 50.00001
percent preponderance of evidence standard, an approach that mocks even the
pretense of due process.

It is remarkable, then, that one such accused student at
the University of Virginia was exonerated of the charges brought against him.
Unfortunately, what happened next was unsurprising.

The accuser hired an outside attorney–none other than controversial
victims’ rights lawyer Wendy Murphy–and filed a complaint with the Office of
Civil Rights. Murphy’s argument, as expressed to c-ville.com, comes close to
saying that a failure to convict amounts to an OCR violation. “The preponderance standard is simple,”
she told the newspaper. “When her accusations are deemed credible, and his
denials are not described with the same glowing terminology, she wins.” But
under the UVA system, the investigators (serving as the equivalent of a grand
jury) have the authority to deem an accuser’s claims “credible.”
For the
OCR even to consider such an absurd claim would be highly problematic.

The second disturbing element of this story comes from
the article itself. Penned by Graelyn Brashear, the article often appears as
little more than a press release for Murphy. Even though the accuser publicly
reiterated her allegations through a posting on Murphy’s facebook page–which
Brashear notes, was “widely
circulated among students,” c-ville.com kept her identity secret.

Nor does Brashear
inform her readers about what the UVA procedure actually entails. Beyond
referencing the shift toward a preponderance of evidence standard (which the
reporter comes close to celebrating, describing universities lacking the
standard as “holdout schools,” even as she notes concerns from FIRE and the
AAUP), Brashear doesn’t reveal that accused students can’t have an attorney
cross-examining witnesses, that the university considers the equivalent of a
grand jury or the police as “neutral,” or that the university is willing to
abandon even a circumscribed right to cross examine regarding some witness
statements. Given that most people outside the academy (indeed, most academics)
have little knowledge about the details of campus due process, it seems likely
that readers of Brashear’s article came away with the belief that the campus
judicial system resembles not the Kafka-like system envisioned by the OCR but
instead the Law and Order rules that
most citizens at least somewhat understand.

Most troubling, here’s how
Brashear described Murphy: “Wendy Murphy, an adjunct professor at the New
England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand. ‘I’m an activist with my feet in the
courts,’ she said. Her battle cry is blunt: ‘The law is designed to facilitate
and perpetuate violence against women and children,’ she said.”

Virginia is a member of the ACC, and, of course, Murphy
has some experience with handling allegations of sexual assault at an ACC
school. In the Duke lacrosse case, the ubiquitous media commentator repeatedly
made false statements of fact about the case (nearly 20 of them in 2006 alone)
coupled with myriad unsubstantiated claims and bizarre interpretations of law.
These statements weren’t made in secret–and they received widespread attention,
including from the American Journalism
Review
.

Yet Brashear mentions none of this, and instead treats
Murphy as a wholly credible figure. Imagine, for instance, if the intro
paragraph had at least acknowledged that Murphy had a record of playing fast
and loose with the truth on claims of campus sexual assault: “Wendy Murphy, an adjunct professor at the
New England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand, although in at least one high-profile
campus matter, the Duke lacrosse case, she repeatedly misstated both factual
items and questions of law, always in such a way that favored the accuser in
that case.”

Such a portrayal, it seems,
isn’t what cville.com thinks its readers should receive.

Critics of Freeh Report Fire Blanks

Graham_Spanier_091305110347.jpg

Over the past several weeks, high-profile criticisms of the Freeh Report, which examined the Penn State administration’s failed response to a report of inappropriate sexual behavior by former defensive coordinator Jerry Sandusky, generated more heat than light. Nearly identical missives from a handful of renegade PSU trustees, the family of ex-coach Joe Paterno, and a handful of former Penn State football players all slammed the Freeh Report as biased and filled with factual errors–but were unable to identify even one specific way in which the report was biased, or point out even one factual error that made the critics’ case.

In the last few days, however, two new attacks–one explicit, one implied–on the report have emerged. An authorized biography of Paterno by sportswriter Joe Posnaski bent over backwards to present the late coach in a favorable light and imply that the Freeh Report’s claim that Paterno knowingly participated in a cover-up couldn’t be true. And Penn State’s disgraced ex-president, Graham Spanier, kicked off a public relations campaign with two interviews and a press conference by his attorney. Ironically, through their weaknesses, these ostensibly more substantial critiques of the Freeh Report wound up further confirming the report’s conclusions.

Continue reading Critics of Freeh Report Fire Blanks

After Awful Tragedies,
The Campus Bureaucracy Expands

paterno-and-sandusky.jpeg

The Boston Herald is a scrappy, politically conservative
tabloid that normally rants and rails against excessive regulations and good-for-nothing
government bureaucrats. Yet in an editorial on the Penn State child
molestations, titled “Keeping campuses safe,” the Herald called for a heavily expanded
bureaucratic response. It excoriated “the football program staff” of Penn State
who, quoting assertions in the Freeh Report, “had not been
trained in their Clery Act responsibilities and most had never heard of the
Clery Act,” a 1990 federal statute requiring colleges and universities to
report crimes that happen on or near their campuses. It is named for Jeanne
Clery, a Lehigh University freshman raped and murdered in her dorm in 1986.

Statutes named after victims of rare but spectacularly awful crimes are
especially likely to be overkill laws that cause unnecessary added bureaucracy and
dismal unforeseen consequences. Yet here was the Herald, which knows better, on the side of more regulation
when it came to universities. The army of advocates for increased
administration in higher education’s already bloated bureaucracies has landed
on the Penn State scandal with considerable gusto. Self-interest motivates many
of those who argue for more regulations and increased numbers of administrators
at Penn State, including the increased use of professionals who provide
“training” for campus student life administrators. 

Continue reading After Awful Tragedies,
The Campus Bureaucracy Expands

More Advice on Railroading Males in Sex Cases

Not one college or university that I know of has resisted
the notorious “Dear Colleague” letter’ urging a lowering of the burden of proof
in campus sexual assault cases. Reasons for this timidity include the fact that
powerful forces within the academy fully support the attack on due process by
the Department of Education’s Office of Civil Rights, the source of the letter.

A reminder of which way the campus winds are blowing
comes in an email from the Association of Title IX Administrators–yes, the  Title IX bureaucracy is bloated enough to
evolve an actual association like this. In its “Tip of the Week,” the
Association urges colleges and universities to modify their campus appeals
processes in such a way that would almost certainly render successful appeals
less likely. Specifically, the group wants to exclude from the appeals process
the college president–or, indeed, “any
high-ranking university official.” Why? Because “deciding appeals makes [top
administrators] a target personally for a lawsuit. Why serve that prize to the
plaintiff’s attorneys on a silver platter?”

Of course, if the goal is preventing lawsuits,
a better approach would be setting up a procedure that respects the rights of
all parties, including the accused student, recognizing that the truth is more
likely to emerge from a fair process in which all sides’ rights are respected.
But the Association has little interest in that sort of arrangement.

Continue reading More Advice on Railroading Males in Sex Cases

Duke Didn’t Come Clean, Penn State Did

In 2006,
the Duke lacrosse case featured an extraordinarily high-profile intersection of
college athletics, academic culture, and the criminal justice system. Six years later, the tragedy at Penn State far
surpassed events in Durham in the annals of campus scandal. There were clear
differences between the two cases (chiefly, of course, that at Penn State,
horrifying crimes occurred, while in the Duke lacrosse case the only criminals
were rogue DA Nifong, who spent a day in jail for contempt, and accuser Crystal
Mangum, currently awaiting trial on a murder charge). But both instances were
characterized by a massive administrative breakdown–in Penn State’s case, based
on an unhealthy degree of power held by the football program; in Duke’s case,
based on the administration’s apparent fear of alienating race/class/gender
faculty on campus.

Continue reading Duke Didn’t Come Clean, Penn State Did

The Hollow Nature of the “Dear Colleague” Threat

An interesting
article
by Sara Ganim noted that with the conclusion of the Jerry Sandusky
trial, attention will shift to civil suits against Penn State and criminal
actions against former and current Penn State employees. Probably the most
explosive recent report came from NBC, which revealed existence of e-mails
among former top university officials (including the former president) on whether
not reporting Sandusky to police would be the “humane” thing to do. Before
apologizing under pressure from an alumni group, one Penn State trustee
expressed concern that the e-mails could suggest a cover-up.

Continue reading The Hollow Nature of the “Dear Colleague” Threat

More on the Rape Accusation at Brown

Marcella (Beth) Dresdale was the former Brown student who accused a classmate of sexual harassment and then (a week later) changed the accusation to one of 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.

Continue reading More on the Rape Accusation at Brown

Star Chamber Hearings at Brown, Yale, and Cornell

brown students.jpgThe ugly episode at Brown–a botched hearing of an alleged rape case– is part of a disturbing pattern of how sexual assault procedures are handled at Ivy League schools. Typically, the schools impose a gross form of injustice, permanently damaging the reputation of the accused male, then congratulate themselves for acting so fairly and appropriately.

According to the definitive 3,279-word account published by the Brown Spectator, Richard Dresdale, a wealthy donor to Brown and father of the accusing student, Marcella Dresdale, secretly met with a key witness in the case, and agreed to help promote that witness’s career. Then the witness, student counselor Shane Reil, made a damning statement against the accused student, William McCormick. In a criminal case, this would obviously be witness tampering, and it looks like that here as well, but a Brown administrator said there was no violation of university procedures in the secret meeting and what appeared to be a bribe to a witness.

Continue reading Star Chamber Hearings at Brown, Yale, and Cornell

Student Editor Details the Corruption at Brown

As university after university follows the OCR’s mandate to lower the threshold for evaluating campus sexual assault claims–and thereby to increase the likelihood of convictions from false accusations–it’s worth keeping in mind cases in which even the pre-“Dear Colleague” procedure broke down. Caleb Warner’s is one such case; William McCormick’s is another.

Continue reading Student Editor Details the Corruption at Brown

The Kafka-like “Dear Colleague” Letter Wins at Cornell

Another day, another two-tier student disciplinary policy–this time at Cornell. The Cornell Daily Sun reports that the university has modified its sexual assault policy, in response to pressure from the Russlynn Ali-led Office of Civil Rights in the Department of Education. As the Obama administration demanded, the key change comes in a lowering of the burden of proof to a preponderance of the evidence (50.1 percent) when Cornell students allege sexual assault. For all other disciplinary matters, however, the university will continue to employ a standard of clear and convincing evidence, which, Cornell’s disciplinary guidelines helpfully inform students (p. 29),”is a higher standard than the civil law’s more-likely-than-not standard.” In a demonstration of cowardice, not one member of the University Assembly voted against the rule change.

Continue reading The Kafka-like “Dear Colleague” Letter Wins at Cornell

The Notorious “Dear Colleague” Letter in Action

Inside Higher Ed brings interesting news today about how the infamous “Dear Colleague” letter from the Obama education department–which requires all sexual assault and harassment cases to be judged by the lowest possible burden of proof, a preponderance of the evidence–has affected one university campus. In response to the letter’s mandate, the University of North Carolina has reconfigured its disciplinary procedures, in part due to a desperate hope to retain some semblance of due process for accused students.

Continue reading The Notorious “Dear Colleague” Letter in Action

What Yale and the Times Did to Patrick Witt

Remarks delivered at a Manhattan Institute luncheon, March 28, 2012 in New York City. Professor Johnson and attorney Harvey Silverglate, whose talk will be presented here tomorrow, spoke on “Kangaroo Courts: Yale, Duke and Student Rights.”

                                                                                       ***

Silverglate and Johnson.jpgBefore the Patrick Witt case, I had some experience writing about how the New York Times handles cases of sexual assault allegations against high-profile college athletes–the Duke lacrosse case. After all that damage had been done, and after more than a hundred articles had been published in the New York Times, two Times editors, including Bill Keller, issued some half-hearted apologies for how the paper had mishandled the case, and “mishandled” is a generous word for what the Times did.

I had always worked under the assumption that when an institution
apologizes, it also takes steps to ensure that it doesn’t commit the
same kinds of mistakes again. But the Times obviously has a different
standard of apology than I do. And in the Patrick Witt case, the same
sorts of mistakes were made in coverage — a presumption of guilt when
the allegation is sexual assault, and a decision to ignore critical
procedural issue — because they don’t fit the preconceived storylines.

Continue reading What Yale and the Times Did to Patrick Witt

The Times Doubles Down Against Patrick Witt

In a column posted Saturday, New York Times Public Editor Arthur Brisbane concluded that the paper
had gotten it wrong
when it went after Yale quarterback Patrick Witt.
Brisbane wrote “that reporting a claim of sexual assault based on anonymous
sourcing, without Mr. Witt’s and the woman’s side of it, was unfair to Mr.
Witt. The Times thought it was a
necessary part in its exposé of the feel-good sports story. But the impact of
the ‘sexual assault’ label on Mr. Witt is substantial and out of proportion for
a case that went uninvestigated and unadjudicated.”

But Brisbane’s intervention came much too late: the original
article by Richard Pérez-Peña cannot be undone; replete with extraneous information
about Witt’s “minor arrests” and framed in such a way that a fair-minded reader
would conclude that Witt’s probably a rapist, the Times savaged Witt’s reputation. A February 5 Google search for
“Patrick Witt” “sexual assault” yielded 37,800 results. And, as espn.com’s Jemele
Hill pointed out
, the Times’
publication of the article probably ended any chance that Witt had of being
drafted by the NFL.

Continue reading The Times Doubles Down Against Patrick Witt

Patrick Witt and Yale’s Disastrous Failure

Patrick Witt.jpg

Richard Perez-Pena’s New York Times article on Patrick Witt consisted of little more than dubious inferences and negative insinuations. But the story did, unequivocally, feature one revelation: someone (presumably either in the accuser’s entourage or a Yale administrator) violated Yale’s procedures by leaking existence of the “informal” complaint against Witt–with the motive of torpedoing his Rhodes candidacy. In combination with the Times‘ irresponsible reporting, this violation of procedures caused enormous damage to Witt’s reputation. Yet there’s no sign that Yale has undertaken an investigation as to whether a university employee violated Yale procedures and Witt’s due process rights, and an e-mail to Yale’s P.R. office asking if such an inquiry was planned went unanswered.

In a thoughtful essay, espn.com’s Jemele Hill examined the fallout: “Real due process in this case was destroyed by whomever shared the story to the Rhodes Trust and The New York Times,” and as a result “Witt’s reputation has been irreparably damaged.” Hill, one of a handful of reporters or columnists to issue a genuine, public apology for having rushed to judgment about the Duke lacrosse case, condemned both Rhodes and Yale for “hiding behind confidentiality and an unwillingness to comment,” leaving Witt with no avenue for regaining his reputation. Hill concluded that “with so much confusion between the reported timeline and Witt’s version, either the Rhodes Trust or Yale is obligated to clear up whether Witt’s scholarship campaign ended at his request or theirs.”

Hill’s hope that the Rhodes Trust will bring transparency to what happened (which would include revealing the improper leaker’s identity) seems far-fetched. But Yale’s silence is harder to excuse. Even if (as is likely, given campus politics) the Yale administration is afraid to be perceived as caring about Patrick Witt, the university’s silence about such a flagrant violation of the school’s sexual harassment and assault policy stands in stark contrast to the administration’s loquaciousness about the policy in general. Ironically, on Tuesday, Yale president Richard Levin penned a university-wide e-mail hailing Deputy Provost Stephanie Spangler for producing a “comprehensive, semi-annual report of complaints of sexual misconduct and related remedial actions.”

Politics, Procedures, Pretenses, But No Due Process?

Levin noted that the Yale administration “thought it was important to provide greater transparency about the entire array of concerns–including verbal harassment and sexual assault–to motivate the Yale community to improve our campus climate.” After some standard boilerplate (“let us join together unified in a common commitment to proper behavior and mutual respect”; “there is no place for any form of sexual misconduct on our campus”), Levin got to the heart of the matter: “The new procedures and services we have put in place are necessary, but they are not sufficient.”

The Witt affair, of course, exposed to the world the shortcomings of those procedures even as they currently exist. Yale’s “informal complaint” procedure ensures limited or no investigation and allows the process to begin on the basis of an accuser’s “worry.” The university’s formal complaint procedure, meanwhile, promises the accuser “considerable control . . . as the process unfolds,” culminating in judgment by an unfair, preponderance-of-evidence standard.

Yet according to Levin, these procedures, wildly tilted in favor of the accuser, are “not sufficient.”

In her report, Spangler spoke much more bluntly about the “informal” complaint process from which the improper leak sprung. The deputy provost dropped any pretense that Yale seeks to provide due process or find the truth. Instead, she affirmed that the informal complaint procedure’s “goal is to achieve a resolution that is desired by the [accuser],” so that accusers can “regain their sense of wellbeing,” even though the process provides no mechanism for determining whether the accuser is telling the truth. In fact, the process seems all but designed to ensure that the truth won’t be discovered, especially if the accuser is less than truthful. According to Spangler, Yale wants the informal complaint procedure to give the accuser “choice of and control over the process.” This goal is incompatible with providing due process to the accused.

Sexual Assault Statistics

Spangler’s report details thirteen allegations of sexual assault by Yale undergraduates from 1 July through 31 December 2011. Since Yale currently enrolls 5322 undergraduates, the report suggests that 0.24 percent of Yale students reported a sexual assault over this six-month period.

The FBI crime statistics for the last six months of 2011 aren’t currently available. But during the period from 1 January through 30 June 2011, New Haven, with a population of around 130,000, experienced 25 reports of sexual assault. That means 0.02 percent of New Haven residents reported a sexual assault over this six-month period. Making the not unreasonable assumption that instances of sexual assault in New Haven were about the same in the second half of 2011, per capita reports of sexual assault on the Yale campus were 10-12 times greater than those in New Haven.

How, possibly, could Yale have a rate of sexual assault many times greater than the city the FBI has billed the fourth most dangerous city in the country? Spangler provides an answer, buried in a footnote on the last page of her document: “This report uses a more expansive definition of sexual assault” than required under federal law (or that any police department anywhere in the country employs). Moreover, none of the 13 Yale students who alleged sexual assault even filed a formal complaint at Yale–much less reported the alleged crime to police. As a result, no medical or criminal investigations of their cases ever occurred. When the allegations remained confidential, this didn’t pose much of a problem for the accused. For Witt, obviously, the outcome was much different.

Tricky Terminology in the Times

When Times readers learned from Richard Perez-Pena that “a fellow student had accused Witt of sexual assault,” how many of them realized that Yale was actually using an “expansive definition” of this otherwise commonly-understood term? How many readers further realized that Yale had designed the procedure about which Perez-Pena wrote so as to give Witt’s accuser “control over the process,” including limited or no investigation? And how many readers could have dreamed that the procedures guiding the allegation against Witt have produced the extraordinary claim that sexual assault is far, far more common on this Ivy League campus than in the fourth most dangerous city in the country? And since the Times went to print without ever speaking to Witt or (it seems) anyone sympathetic to him in the Athletic Department, didn’t the paper at the very least have an obligation to provide the context that would explain the highly unusual procedures and definitions that Yale features?

While President Levin and Deputy Provost Spangler are cowards on the issue of due process, there’s no reason to believe that they share the indifference of a figure like the Times‘ Perez-Pena or the malevolence of someone like Poynter source/seminar instructor Wendy Murphy. Rather, they appear to have embraced a thesis common among both the professoriate and “victims’ rights” groups: that the way to persuade more real victims of sexual assault to report the crime is to jerry-rig procedures to make it more likely that those who do file reports will prevail, whether in court or before campus “judicial” tribunals. This mindset, however well-intentioned, contradicts any reasonable definition of due process and presumption of innocence. That President Levin seems prepared to further abandon these bedrock American principles, as he implied he will do in his campus-wide e-mail, is a sad commentary on the state of higher education.

 

Media “Watchdogs” Foul Up the Mess at Yale

In an ideal world, Richard Perez-Pena and the New York Times would have been subjected
to widespread condemnation, even shame, for the character-assassination frame
the paper gave to the Patrick Witt story. Kathleen Parker, most prominently, has
spoken with moral clarity
on the issue, translating the Times argument as, “We don’t know
anything, but we’re smearing this guy anyway.” But far more common have been
defenses of the Times–or even claims
that the Times should have done more
to portray Witt in a negative light.

Continue reading Media “Watchdogs” Foul Up the Mess at Yale

Second Thoughts About Joe Paterno

Joe Paterno.jpg

Some Penn State alumni, outraged over the Board of Trustees peremptory firing of Coach Joe Paterno, are organizing a campaign to elect three new trustees.  The objective of Penn Staters for Responsible Stewardship is, ultimately, to oust the current Board.  The Board fired Paterno, two University officials and the University President for not responding forcefully to accusations of child sexual abuse in the football-team shower room.  Many alumni, including hundreds who met with the new President at hotels in the Pittsburgh, New York City, and Philadelphia areas recently, were outraged that the Board had not verified the accusations before acting.

According to indignant alumni, the Penn State Board of Trustees confused two separate, unequal cases.  One case was possible perjury before a grand jury by Tim Curley, the Athletic Director, and Gary Schultz, the senior vice-president in charge of the Penn State Police.  The second case was the charge against Jerry Sandusky that he possibly sexually molested a young boy in the Penn State football-team shower room.

Curley and Schultz were suspected of lying to conceal discreditable behavior damaging to the reputation of the Penn State football program.  Guilty or innocent, they face enormous legal costs to mount a defense against the perjury charge.  If convicted, they will probably go to prison.  But the evidence for the indictment for perjury is weak.  It rests entirely on the grand jury testimony of assistant football coach Mike McQueary in the fall of 2011 about what he saw nine years earlier when he was in his early twenties.  McQueary remembered being shocked when he accidentally observed in the shower room of the Penn State football team what appeared to be a former coach sexually molesting a pre-adolescent boy.  Here is how the Washington Post described McQueary’s account of the 2002 incident when called as a witness in a District Court hearing last December 16:

In his testimony at the preliminary hearing for Tim Curley and Gary Schultz, McQueary said he believes he saw Sandusky sexually molesting a boy in the shower but was not 100 percent sure it was intercourse.

McQueary said he peeked into the shower several times and saw Sandusky with his hands wrapped around the waist of a boy he estimated to be 10 or 12 years old. He said both were naked, the boy was facing the wall, and that the last time he looked in, Sandusky and the boy had separated.

“I know they saw me,” McQueary said. “They looked directly in my eye, both of them.”

Tim Curley and Gary Schultz have both insisted publicly that, when McQueary told them in 2002 what had disturbed him, he did not mention anal rape, as some newspaper accounts reported.  McQueary had told his story first to Coach Paterno in 2002, and Coach Paterno’s recollection of their meeting characterized McQueary’s report similarly.  Here is what Joe Paterno said on November 6, 2011, about their 2002 meeting:

As my grand jury testimony stated, I was informed in 2002 by an assistant coach that he had witnessed an incident in the shower of our locker room facility. It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the Grand Jury report. Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As Coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators.

The grand jury accepted McQueary’s graphic report as a faithful account of what happened and what he told about it to Paterno, to the Athletic Director, Tim Curley, and to Gary Schultz, the senior vice-president.  Curley, Schultz, and Paterno remembered the conversations with McCreary differently.  According to all three of them, McQueary said nothing about anal rape, only that Sandusky and a preadolescent boy were showering together in the shower room and “horsing around.”  Because the grand jury believed that McQueary was telling the truth and that Curley and Schultz were lying to minimize disreputable behavior at the University, it indicted Curley and Schultz for perjury.  Whether or not they committed perjury has nothing to do with whatever Sandusky did or did not do to a boy in the shower room.  (The grand jury did not explain why it did not also indict Coach Joe Paterno for perjury; his report of his conversation with McQueary was identical to the accounts given by Curley and Schultz.)

Questionable Indictments

The Board of Trustees apparently considered the indictments of Sandusky, Curley, and Schultz evidence of guilt.  On the evening of November 9, the Vice-Chairman of the Board, John Surma Jr., made a vague public statement explaining why the Board fired Joe Paterno, the Athletic Director to whom he reported, the vice-president to whom the Penn State Police force reported, and the president of Penn State University itself.

We thought that because of the difficulties that engulfed our university, and they are grave, that it is necessary to make a change in the leadership to set a course for a new direction.

A jury would have to believe – despite an absence of corroborating evidence — that Coach Paterno and the two administrators lied independently to a grand jury about what McQueary told them in 2002 or conspired with one another to lie in order to protect the University from bad publicity.  The jury would also have to believe that reputable University officials chose to cover up the rape of a ten-year-old boy.  More plausible is faulty memories rather than lies.  McQueary stumbled on what seemed to him improper and upsetting sexual behavior between a coach and a pre-adolescent boy, but he did not remember exactly what went on nine years earlier.  Surely the defense attorneys will raise questions about how McQueary reacted to what he saw and what he heard during the 2002 incident.  He did not claim to have heard the boy cry out, “Help!” although he said that the boy saw him. He did not claim to have himself shouted, “What’s going on here?”  All he did was peek into the shower room three times and then go home and telephone his father.  Paterno, Curley, and Schultz all deny receiving explicit information about an anal rape.

The perjury indictments have little to do with football at Penn State, only with the accusation that two reputable University administrators lied to a grand jury (for which they are potentially liable to be given long prison terms).  The collateral damage of the perjury indictments – inflicted by the Board of Trustees — was the firing of Coach Paterno and of Penn State President Graham Spanier. Perhaps a prudent Board of Trustees should not have rushed to administer punishments.  As one of my former students, now a senior executive of an organization in the professional sports field commented about the uproar at Penn State in an email:

Where is the adult in the room who says, “Hold on. We have a legal process and we need to follow it in the most routine cases and even for the most hideous ones. This case is no exception.”

The American system of criminal justice does not usually imitate the Queen in Alice in Wonderland, who enunciated the principle of “Sentence first, verdict afterwards.”  Maybe current members of the Board never read that criminological classic or understood that Lewis Carroll was ridiculing arbitrary punishments.  Maybe Penn Staters for Responsible Stewardship should distribute copies of Alice in Wonderland to all members of the Board of Trustees as well as to the new members they succeed in electing.

Will The NY Times Apologize to Patrick Witt?

The denouement of the Times’
coverage of Duke lacrosse came when then-sports editor Tom
Jolly apologized
for the paper’s guilt-presuming, error-ridden articles on
the case. Will the paper ever get around to giving former Yale quarterback
Patrick Witt an apology? With a few days perspective, it’s become clear that
the Times‘ mishandling of the Witt story
was, in two specific ways, even worse than originally believed.

Continue reading Will The NY Times Apologize to Patrick Witt?

The Times Vilifies Another Athlete, Presenting No Evidence

Over the past year, FIRE has led a campaign of civil liberties
organizations against the Obama administration’s infamous “Dear Colleague”
letter, which ordered colleges and universities to lower the burden of proof in
their on-campus judicial proceedings. The letter demanded that all universities
receiving federal funds employ a “preponderance of the evidence” standard (in
other words, a 50.1 percent degree of certainty) to determine guilt on
allegations of sexual assault.

Given that campus judicial procedures already are tilted,
often wildly so, in favor of sexual-complaint accusers, the letter has produced
a guilty-unless-proven-innocent standard for accused students. In at least one
case, that of Caleb Warner at
the University of North Dakota
, the standard (before FIRE’s involvement)
amounted to guilty even when proved innocent by the local police.

Continue reading The Times Vilifies Another Athlete, Presenting No Evidence

A Black Eye for Brown In a Controversial Rape Case

I’ve written before of the peculiar case of Brown and
Marcella Dresdale
. In 2006, Dresdale accused another Brown freshman, William
McCormick, of sexual assault. But she didn’t go the local police, and she never
filed charges. Instead, she went to the Brown administration–over which, it
turned out, her father Richard, a major Brown donor, exercised considerable
influence. After a prosecution-friendly process in which McCormick’s only
advocate was an assistant wrestling coach, McCormick accepted what amounted to
a plea bargain, and agreed to leave Brown. The university never formally
investigated Dresdale’s charges.

There matters might have ended, but McCormick and his family
decided to file a federal suit against both Dresdales and Brown. Their basic
claim: that Brown had railroaded McCormick to accommodate the demands not of
justice but of a major donor.

The case meandered its way through various courts and judges
until this summer, but recently a district court had upheld McCormick’s
discovery demands–related to what sort of communication between the Dresdales
and Brown administrators about the case. It seems that the Dresdales really
didn’t want McCormick and his attorneys to get access to this material. On Wednesday,
the Dresdales and the McCormicks announced that they had reached an
out-of-court settlement.

As is customary in such matters, terms weren’t released,
though the fact that the development came so close on the heels of the
discovery order gives a good sense of which side prevailed. The settlement
also, ironically, proved the McCormicks’ claims that Brown effectively acted
not as an institution of higher learning but as an agent of the Dresdales. The
settlement’s terms preclude the McCormicks not only from suing the Dresdales
but also from suing Brown–even though Brown wasn’t officially a party to the
settlement negotiations. It appears that Richard Dresdale was willing to offer
more money to shield the school from the sunlight of discovery. Brown’s spokesperson,
however, issued an Orwellian statement about how, regardless of the apparent
cover-up and Brown’s fierce attempts to prevent the McCormicks from getting
access to data about the school’s decisionmaking process, “the university stood ready at all times during this
litigation to prove in court that it had acted appropriately and in accordance
with applicable laws, policies and procedures.”

A final point, on coverage of the case. Kudos to Bloomberg
News
, whose article on the settlement references the Dresdales by name.
Contrast that approach with the Laura Crimaldi of the Associated Press, whose
article never uses the Dresdales’ name
and instead explains that a settlement
was reached between McCormick, his family, and “his
accuser and her father
.” (This shielding policy even prevents the AP
from referencing the name of the case, McCormick
v. Dresdale.
) Again: Marcella Dresdale never filed charges. She appears
never to have gone to a hospital for a rape examination. Her father paid out an
undisclosed sum of money to prevent documents regarding Brown’s handling of the
case from coming to light. And yet the AP believes that she’s still entitled to
the cloak of anonymity?

Brown Shows How to Skew a Case and Skewer the Accused

Tuesday’s Brown Daily Herald brings an interesting column on one of Brown University’s best known–and most questionable–disciplinary proceedings: the expulsion of a student, William McCormick, after an allegation of rape by the daughter of a major donor.

I’ve written about McCormick’s case before–in what resembled a coerced plea bargain, he was dismissed from Brown after another Brown student, Marcella Dresdale, accused him of sexually assaulting her. (Dresdale never filed a report with police; McCormick always maintained his innocence and is suing the university.) The affair at the very least has raised the appearance that McCormick left Brown not because he had done anything wrong but because the university bowed to the demands of Dresdale’s father, who has funded both the Dresdale Family Medical Scholarship and a medical conference room.

Continue reading Brown Shows How to Skew a Case and Skewer the Accused

Here Comes the Anti-Bullying Bureaucracy

The overwrought anti-bullying crusade has come in for heavy and very specific criticism from Hans Bader, the lawyer and writer who played a key role in keeping out a dangerous provision of a proposed federal law on how colleges must deal with campus sexual assault.

Though Washington officials call bullying a “pandemic,” in reality, Bader writes, incidents have been declining. Like the badly overstated AAUW report on sexual harassment discussed here last week, the unwelcome good news is…

Continue reading Here Comes the Anti-Bullying Bureaucracy