Tag Archives: University of Minnesota

Unfairness in the Minnesota Football Rape Case

We don’t normally think of college athletes as prominent defenders of due process. Yet perhaps the highest-profile protest against the post-Dear Colleague letter demise of campus due process came last week at the University of Minnesota. Its emergence, the reaction to it, and its quick collapse speaks volumes about the relationship between due process and policies toward sexual assault on the nation’s campuses.

In September, several members of the Minnesota football team were accused of a particularly ugly gang rape. The police investigated, but the prosecutor ultimately declined to pursue charges, largely because a contemporaneous video of the incident (taken by one of the players) showed the accuser (in the words of a police report) “certainly conscious and aware of what is going on”—“lucid” and “alert.”

The university, however, conducted its own investigation and found at least some of the players guilty of the same offense (sexual assault) for which the local prosecutor had concluded he lacked probable cause to indict. Armed with that finding, the university’s athletic department suspended the players—in the process publicly identifying them. This move prompted other members of the football team to threaten to boycott the Holiday Bowl game, only to abandon their move under heavy pressure from the university and the media.

The Limitations of Due Process Protests

The timeline of the Minnesota football team’s response resembles that of the Yale basketball team’s response to the Jack Montague case. In both instances, the team began with examples of high-profile protest. Each member of the Yale team wore Montague’s warm-up shirt before a game. Each member of the Minnesota football team stood behind a statement indicating that university procedures had denied their teammates’ “due process,” in part by finding them guilty of the same offense for which the police had chosen not to bring charges.

Within 48 hours, under what appeared to be heavy internal and external pressure, the teams backed down and issued statements effectively retracting their original protests. In both instances, these statements were radically different in tone and substance from the teams’ original actions and read as if written by a university administrator rather than by college students.

Contrast both the Minnesota and Yale outcomes to that at the University of Missouri. When the Mizzou football team threatened to boycott on behalf of student protesters alleging racial discrimination on campus, the president was fired. The backdowns in the Minnesota and Yale cases, by contrast, provides a reminder of where the power lies in universities on due process issues and sends a message to other students that standing up for due process in sexual assault adjudications will be futile.

The Minnesota case includes one element absent in the Yale matter. Local reports suggest that the players’ unity was in part eroded by the release of the university investigative report. Even construing the incident in the light most favorable to the accused players, this lengthy document revealed an ugly, troubling episode in which the accused players were almost caricatures of unfeeling misogynists. Little wonder the other players then folded. (One of the players has subsequently maintained that the boycott nonetheless will ensure that future accused students are treated fairly, but no signs exist that Minnesota will in any way change its policies.)

Ironically, however, the leaking of the report (to a local TV station) heightened the due process critique the team originally made. The report, of course, was supposed to be confidential. Given its conclusion, and its highly negative character portrayals, it’s inconceivable any of the accused players leaked it. That leaves someone from the accuser’s legal team, or a university official, as the likely source—figures willing to waive the confidentiality requirements when they thought it would be helpful to their side of the case. The report’s leaking, in this respect, casts further doubt on the integrity of the Minnesota adjudication process. Just as with Yale and the Patrick Witt case, however, I wouldn’t hold my breath waiting for an investigation to identify the leaker who violated university policies.

Blue State Laws

The last few years have featured a wave of blue states passing “affirmative consent” laws, which effectively require accused students to prove their innocence. Minnesota hasn’t enacted such a law (though the university does employ the “affirmative consent” standard, thereby defining sexual assault differently than state statutes). But the state did enact a first-in-the-nation law requiring “training” of all campus investigators and adjudicators of sexual assault cases.

The football players’ case was one of the first to be adjudicated under the new standards. This summer, I had asked Minnesota’s Title IX coordinator, Kimberly Hewitt, for a copy of the new training material; she declined to provide it, with a cc to the university public relations office. (I then obtained it through a state public records request.)

I can see why Hewitt wasn’t eager for the material to become public. Minnesota has trained its sexual assault investigators by having them attend an event organized by the Minnesota Coalition Against Sexual Assault; sessions from the National Association of Colleges and Universities; participating in the “Minnesota Campus Sexual Violence Summit”; joining an AAU Survey of Sexual Assault and Sexual Misconduct Webinar; and completing a course organized by the ATIXA Institute, an organization associated with the anti-due process NCHERM.

Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”

Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”

The list of training, therefore, contains no defense lawyers. Nor does it feature a representative of a group devoted to campus civil liberties, like FIRE (or even the ACLU). So Minnesota trains its investigators and adjudicators exclusively from sources that are either neutral or who are ideologically inclined to believe the accuser (and therefore find guilt). Imagine the criminal justice context, of jurors in sexual assault trials (and only sexual assault trials) required to receive “training,” with the training material provided only by the prosecutor and not by the defense.

The effects of this training were apparent in the university investigator’s report. Both the accuser and the accused had inconsistencies in their stories. But the accuser’s inconsistencies enhanced her credibility—“we generally attribute the differences among [her] accounts over time to her gradual recollection of what she found to be a very traumatic experience,” the university report declared—while the accused students’ inconsistencies led the university investigator “to discount their credibility.”

Nothing in the one-sided nature of the training, of course, should obscure the ugliness of the undisputed conduct detailed in the report. (This was, in the light most favorable to the accused players, an episode of group sex amidst underage drinking, while the players were entertaining a high school recruit.) But despite the wording of a statement issued from the president’s office, Minnesota did not suspend several of the players because their behavior conflicted with university values; it suspended them because the university concluded they had engaged in behavior the state considers a felony—even as the prosecutor declined to seek indictments over the same behavior.

Media

Initial coverage of the players’ boycott statement was basically fair—at least in the local Minnesota media. That tone soon changed. It changed despite the fact, as Robby Soave has observed, this was a protest (from students of all races) alleging that authorities had denied due process rights to accused black males.

In the current national environment, in virtually any other context, this message –that young men of color had been mistreated by agents of the government who were investigating conduct that state law deemed to be criminal—would have been greeted with enthusiastic support from the mainstream media.

Yet (unsurprisingly, given the general media attitude regarding due process and campus sexual assault), the editorial and commentary response was overwhelmingly negative. This Sally Jenkins piece in the Washington Post is a representative sample; this Dave Zirin piece is a typically extreme manifestation of the attitude. In its editorial condemning the players who threatened to boycott, the Star-Tribune conceded that “there can be discussion over whether [preponderance of evidence is the correct standard and over the high level of secrecy involved in the disciplinary process at the University” and noted that there “has been pushback in other high-profile incidents across the country over the current system and the way standards are applied.”

In other words: the editors conceded that the due process concerns presented by the students had merit. After making the point, the editors nonetheless charged that, through their protest, the players threatened to “further damage the university’s reputation.” Is there any other context in which a left-of-center editorial page would advance such a claim about students advocating for other students’ civil liberties?

Beyond the choice of framing, both the Times (in a straight news story) and the Star-Tribune (in its op-ed) erroneously asserted that the University of Minnesota was required by “law”—even Obama administration officials (albeit very reluctantly, under prodding from Senators Lamar Alexander and James Lankford) have conceded that the Dear Colleague letter doesn’t carry the force of law. The Times quietly eliminated its error.

After the issue was pointed out on Twitter, the Times replaced, without acknowledgment, the claim that Minnesota had to use a lower standard of proof by law with the following passage: “Burdens of proof used in such investigations are frequently lower than the criminal justice system’s.” The false claim in the Star-Tribune editorial remains. The errors reflect the generally poor approach the media has featured in covering campus procedural issues.

The Minnesota football coach has said that his public support for the protest threatened his job. Given the current atmosphere on campus, he’s probably right.

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.