Brett Sokolow has been a model of inconsistency in the campus “rape wars.” As president of the National Center for Higher Education Risk Management (NCHERM), he has carved out a reputation as a foe of due process, but he surprised almost everyone this past spring by suggesting that he had knowledge of between eight and thirteen cases in which a male student was brought up on sexual assault claims on the basis of weak or non-existent evidence. In “a lot of these cases,” a NCHERM document noted, “the campus is holding the male accountable in spite of the evidence—or lack thereof—because they think they are supposed to, and that doing so is what OCR wants.”
At the same time, Sokolow has proved almost wholly unconcerned with the relationship between these unjust outcomes and procedures that tilt heavily in the favor of the accuser. Even as he recognized a surge in dubious convictions, he praised the OCR’s due process-unfriendly “Dear Colleague” letter. And last week, he curiously attacked FIRE’s efforts to achieve procedural fairness in campus sexual assault cases. Sokolow charged that FIRE’s criticism of OCR’s mandate that colleges use a preponderance-of-evidence in sexual assault cases reflected a “one-sided role in the gender wars.” Why? Because using anything other than a 50.01 percent level of certainty “only [emphasis added] protects those who would sexually assault others.”
Tell that to Caleb Warner, the former University of North Dakota student. He was found culpable for sexual assault under a preponderance threshold—even as his accuser was charged by police with filing a false report. It’s hard to imagine UND would have falsely branded him a rapist if it had used a clear-and-convincing threshold. It’s also hard to imagine that someone who has conceded that students are being improperly found culpable, as Sokolow has, could similarly suggest that colleges having a threshold with a 75% certainty of guilt “only” protects rapists.
In the past week, Sokolow has been in the news less for his backward attitudes toward due process than for his transparent attempts to profit off the post-“Dear Colleague” letter landscape. The Chronicle of Higher Education reports that Sokolow has offered his firm’s services (for a fee, of course) to handle investigation and adjudication of sexual assault cases.
Meanwhile, BuzzFeed’s Katie Baker took time from her “rape culture” beat to publicize complaints from anti-due process activists against Sokolow. (How much of this outrage flows from a reaction to Sokolow’s off-message springtime comments about improper disciplinary actions remains unclear.) In the event, Baker obtains quotes from several legal figures criticizing Sokolow; Cornell law professor emeritus Charles Wolfram described Sokolow’s behavior as “pretty indefensible, kind of stupid, and could certainly get him in trouble” with the bar.
That said, the two central complaints raised in the Baker article said more about the unusual worldview of the anti-due process activists themselves than about Sokolow. The first involved “Anna,” the Hobart and Smith accuser portrayed in the recent New York Times article. Sokolow, who has been retained by HWS, sent “Anna” an e-mail asking for more information about her case and for a copy of her OCR complaint. (This was the alleged ethical violation highlighted by Baker, since Sokolow e-mailed “Anna” rather than her attorney.) Anna’s response, as relayed to Baker: the e-mail “disgusted me and dredged up all the trauma of the past year as I was trying to move on.” So, according to Baker’s portrayal, “Anna” gave a lengthy interview to the New York Times, filed a Title IX complaint, and has said that she returned to HWS to raise the profile of the issue—but an e-mail from a college contractor “dredged up all the trauma of the past year”?
The second area of focus revolved around Sokolow motives. Laura Dunn, of an organization called SurvJustice, fumed, “As a victim, I have watched Brett Sokolow profit from sexual violence.” The context of Dunn’s quote? Sokolow had asked her to speak at a conference, but had turned down her demand for a $650 payment.
But Dunn is outraged by those who seek to “profit from sexual violence.”