The OCR’s “Dear Colleague” letter (2011) from the Obama Department of Education can be seen as a convenient starting point for the current war on campus due process for accused students—but a handful of elite schools actually made moves earlier.
1) Duke responded to the lacrosse case by revising its sexual assault policies to substantially broaden the definition of campus rape. (“The higher IQ, the more manipulative they are, the more cunning they are,” remarked the head of the Duke Women’s Center.
2) Stanford started training its disciplinary panel members to infer a logical defense by the accused student as a sign of guilt.
3) Yale, as part of an agreement with OCR, revised its procedures and promised biannual reports from Yale deputy provost Stephanie Spangler.
Over the past three years, these Spangler documents have provided a first-hand illustration of what passes for due process at one of the nation’s leading universities. From them, we learned that more than a half-dozen Yale students (including former quarterback Patrick Witt) had been found culpable for sexual assault under “informal complaint” procedures that provide no grounds for an accused student to present evidence of his innocence. The latest Spangler report has now been released. It suggests that due process still stands in short supply on the New Haven campus.
Informal Complaints
Last semester’s Spangler Report revealed that no sexual assault cases were handled through the “informal complaint” procedure. I speculated at the time that this development might have represented a response to outside criticism, which has focused on the guilt-presuming nature of Yale’s “informal” process, which allows the finding of culpability on the basis of an accuser’s “worry” and promises the accuser “considerable control . . . as the process unfolds.”
Related: Harvard Joins the Ivy League’s Race to the Bottom
My speculation, it turns out, was wrong. Seven cases this semester have gone through the “informal” process—which can best be seen as a kind of “Scarlet Letter” approach. That is: given the limitations on the accused student’s ability to present evidence, it’s almost impossible for an “informal complaint” to end without the accused student being branded a rapist. But beyond the branding, Yale allows only limited punishment through the informal procedure. Of the six students (one case remains pending) who faced charges of sexual assault through the “informal complaint” process, each received the same punishment—“counseling” and a prohibition on contacting the accuser.
Exoneration First, Punishment Later
For one student last spring, the allegation was just the beginning. Yale’s “formal complaint” procedure prevents the accused from having an attorney as part of the process; brands the accused a rapist based on a 50.01 percent finding from a panel specially trained panel; and denies the accused any right to cross-examine the accuser. Even under these guilt-tilting procedures, one accused student was found not culpable—meaning that Yale’s disciplinary panel concluded that it was more likely than not he was the subject of a false allegation.
The outcome of the case? The accused student was punished. He received a no-contact order with his accuser (there was no reciprocal order)—meaning that if the two happen to enroll in the same course, the accused student would need to drop the class; or if the two happened to be assigned to the same dorm, the accused student would have to move.
Related: More Grotesque Sex Hearings at Yale
Yale also referred the accused student for “sexual consent training.” (Yale’s website contains no description of what this “training” entails, but here’s a summary from a feminist blog.) Again: Yale concluded that it was more likely than not that the accused student was the victim of a false allegation. Yet even though Yale’s own accuser-friendly procedures concluded that it was more likely than not the accuser leveled a false allegation, the accused was punished, while the accuser received no punishment of any sort.
In the several years of Spangler reports, there never has been any indication that Yale has punished even one student for filing a false claim of sexual assault.
Does the Punishment Fit the Crime?
Given the one-sidedness of Yale’s procedures, it comes as little surprise that most of the students accused of sexual assault were found culpable. But two cases—reflecting differing ends of the spectrum regarding due process problems—particularly stood out.
In the first case, a student was accused of sexual assault, and found guilty by the UWC (the Yale body that handles sexual assault complaints). As punishment, he was suspended for a year, and received no-contact and sexual-consent training orders.
Assume, for the sake of argument, that the student actually committed the allegations of which he was accused. (And, given the minimal protections Yale provides to accused students, that’s a big assumption.) Given the punishment he received (a one-year suspension, after which he can return and eventually receive a Yale degree) strongly suggests that his actual offense was not “sexual assault,” at least as the term is commonly understood outside of the typical campus. Yet because of Yale’s extraordinarily broad definition of the term, the student has been branded a rapist for life, and he likely will be foreclosed from any job that involves a background check that would access his college transcript.
In the second case, the accuser (after discussing matters with Yale’s Title IX coordinator) elected not to file a formal complaint against the accused student. But even in a case without an accuser, Yale went ahead, and charged the student with “sexual assault.” (To Yale, the Anglo-Saxon tradition of an accused being able to confront his accuser seems quaint and old-fashioned.) And in a case relying wholly on hearsay, words of an accuser who chose not to participate in the proceedings, Yale deemed the student a rapist and expelled him.
It’s clear from the disparate punishments that the alleged offense in the second case was much more serious than the first case, even though both students were deemed rapists by Yale.
The Title IX Twist
In her e-mail announcing the new report, Spangler announced that she was “encouraged” that in the past semester, Yale had more reports of sexual assault than in the past. (In any normal environment, news of an increase in violent crime would be horrifying.) Spangler’s encouragement comes despite a grand total of two cases actually being reported to police during the spring 2014 semester. In one of those cases, the accuser declined to press charges; in the second, a grad student said she was the victim of an attempted rape by an “unknown” male—who might or might not have been a Yale student.
Most the increase (eight cases) celebrated by Spangler came from a procedure beyond the formal and informal complaint process—the activities of the Title IX coordinator (whose job description, obviously, suggests its occupant won’t exactly be a civil libertarian on questions of sexual assault complaints). Spangler’s report helpfully notes that the Title IX coordinator does not “conduct formal hearings.” Yet the coordinator (without even the minimal protections for the accused provided by Yale’s hearings process) can investigate complaints, and can “achieve a resolution of the complaint, which may include sanctions” while installing “interim measures to support and protect the complainant during an investigation.”
One of the Title IX cases from the spring provides a sense of the Orwellian nature of the Title IX coordinator’s work. “A third party reported,” according to Spangler, “that more than one female [Yale] student, whom the reporter would not identify, [emphasis added] was sexually assaulted by a male Yale student.”
Or, in plain English, a Yale student is now being investigated as a serial rapist, with the possibility of sanctions—even though none of the females he allegedly raped have filed a complaint, or have even been identified. How any student could defend himself against such a charge is unclear.
Spangler’s report reveals that the “case is pending.”
OY! Mr. Johnson **really** needs to look into the way complaints are handled at his own institution. He would find that the same protocol exists at Brooklyn College and has for a very long time. The only difference is that the “Scarlet Letter” is worn by the person who brings a complaint (usually female) to the “Sexual Harassment Committee” – a committee which consists of one person, Miriam Deutch. Deutch, systematically reverses the direction of each and every complaint to embarrass, scold and institutionally humiliate the accuser by tossing any hope of maintaining confidentially through conducting department-wide interviews of “witnesses” – thereby embarrassing the accuser once the complaint is determined to be “Unsubstantiated.” The accused walks scott-free while at the same time receiving the sympathy of the members of the department who don’t want to have to deal with any of this in the first place. The accusers lot is shunning for the rest of their time on campus. Deutch ought to be hauled off the campus in handcuffs and Brooklyn College ought to stop licensing abusers to use its campus as their own personal brothel – with institutional blessing. Seriously, Johnson take a look at the more than 10+ year history of Deutch’s intentional botch jobs. BC is no elitists institution. Perhaps if it were, victims might have access to a 30 person committee instead of one incompetent librarian who serves as the “Sexual Harassment Committee” (though her title is “Sexual Harassment Coordinator” and she lacks any relevant credentials for either.)
More broadly, this overreach of justice points to something more sinister around easy accusation and prosecution of accused in any formal context: this overreach grossly unbalances power in favor of govt and accusers and against the accused.
To maintain a society with substantial liberty and freedom from tyranny (of government, or here, “student govt” or “univ admin govt”) – i.e., a society that enables people to decide and choose for themselves, free from fear of govt or other citizens bent on damaging or destroying them – it is necessary to have solid due process, high standards of proof, foundational rules such as the Bill of Rights (i.e., restraints on bad govt and its corrupt processes), and finally, RARE prosecution, saved for those who are the 5% doing the 95% of damage throughout society.
And, I believe this “campus sexual aggression” overreach is a sop thrown out by the current US Admin to court votes of women and help to swing the 2014 election back their way.
So what if it advances tyranny “just a little bit”, it’s worth it to get re-elected right?
Same claims apply to the NSA’s overreach, the “National Suspicious Activities” databases, and a host of other gross Constitutional violations advanced by the current administration (and set in motion by the prior).
If we don’t reverse this kind of erosion of Liberty we will lose THE key foundation of this nation, what makes it unique and much more livable than most other countries.
Remember Ben Franklin’s saying: “He who gives up Liberty for a little (temporary) Safety will have neither (and deserves neither).” Liberty is not free and requires us to fight for it daily.
On the face of it, this trend seems like a serious miscarriage of justice. But it’s important to understand the context in which such incredible disparities could arise.
Feminists and sexual innovators insisted on removing standards and taboos, including simple codes of conduct designed to protect women from liberties and men from false accusations.
These codes have been ridiculed for at least two generations now. Mention single-sex dorms or parietals and note the lack of discussion — all you will get are sneers.
All this, although the work of feminists, were found by men to serve their own interests.
Men can remedy this “Orwellian” situation they now face very simply. Impose upon themselves a standard of conduct — with the help of wiser heads. Specifically, if a man takes care to keep company with a woman only in the company of others, if he treats women with respect, and if he makes the resolution to obey the 6th Commandment, he will find that his susceptibility to these kinds of accusations is greatly minimized. He may also respect himself more.
The fact that these thoughts will seem completely untenable to most people is the surest sign that the astonishing imbalance of reason described by this article will continue and probably worsen. But then, I’d say, men did it, and continue to do it, to themselves. It’s hard to pity them.
What I find amazing about your reply is while you demand a better level of behavior for men, that you seem to imply that women’s behavior should NOT be called into question at any time for any reason. Kinda sleazy in its own right, if you ask me.
Indeed it will fall to people to live in such a way as to sidestep this trap of the temptation of sex without consequence. They will need to avoid temptation and choose with great care who they give their time and body to. Oddly enough, in some cases it will be up to men to live as they once seemed to define a desirable woman worthy of marriage. They will need to resist temptation and exert self-discipline and have a long view of the future. Doing so will not only prevent them from being unduly charged with sexual assault but will also be a start towards freeing people from family courts, and other life-long fees for poorly considered behavior as well as the reduction in the number of broken families.
Men and women need to learn to see themselves as valuable and consider that there are long reaching effects to sexual encounters that aren’t merely physical (e.g. pregnancy or disease), aren’t immediately obvious, nor are they necessarily preventable; there’s no contraceptive for regret or the emotional pain of the person you finally marry or commit to. Perhaps, instead, try to imagine being faithful to the love of your life that you may or may not have met yet.
I might disagree with as much as 2/3 of this article but we are brothers in christ and can both work towards furthering gods kingdom. That is the on of the best things about chtntriaiisy is that christians can disagree and still be kind to each other and work in pursuit of a common goal.
What do they use as an investigative manual, Malleus Malefacarum?
I hope the railroaded students sue the universities into paupery.
i hope none of my children ever attend Yale. As an employer, I would never hire a female Yale graduate, as they might be false accusers who destroyed someone’s life when no crime occurred.
I wonder what happens when one of the faculty is accused by one of these Jane Does. What happens when one of the investigators is accused.
Can we all say it together? “That’s different.”
Sue the basta**s ! There are too many young lawyers. Here is some work for them.
The fish is truly rotting from the head isn’t it?
Yale.. the other schools mentioned. They used to be important and significant for all the right reasons.
Now they becoming part of a dystopian sub-culture where right is wrong, guilt is presumed for the wrong kinds of animals…
And it’s all sanctioned by “government”. Aren’t we supposed to be a nation of free human beings who value rightful liberty, freedom and human rights?
You couldn’t tell it by these schools.
The only possible solutrion to this is to sue the institution and personally sue everyone involved down to the students on the board in civil court. the only thing that institutions understand is steep financial losses. the only thing that individuals understand is personal pain. Unfortunate, but there is a lot of money to be made and I would think that lawers would be beating the bushes for clients.
It won’t happen for all the reasons I listed above and more.
Now as to criminal liability — the real fear that folk may GO TO JAIL — that does work if it is a realistic fear.
If you reward bad behavior, you get more of it.
These folks give kangaroo courts a bad name.
Google “Behavioral Intervention Team” and just read the various things that you find. And then notice how some of the “experts” in that field are also Title IX “experts” — interesting, isn’t it?
Forget “Kangaroo Court” and start thinking “Star Chamber.”
This is only the portion of the iceberg that is above water — what is below the surface and out of public view is what really scares me.
No wonder online courses are becoming more popular among males.
Hard to be accused of rape that way.
“She turned me into a newt!”
“A newt?”
“I got better.”
At least the witch got to face her accuser…
Civil suits with big, and publicly revealed, awards are the only things that will get the attention of these universities. Lawfare on behalf of the innocent. And of course, awarding lawyers fees to the accused’s defense team.
I’m afraid this won’t do any good — the awards will neither be big nor publicly revealed, and in most cases, there won’t be a suit at all. No matter how egregious the university’s actions, administrators know that it is so incredibly difficult for a student to sue them that it really isn’t worth the student’s effort to try — I learned that myself, it is why I decided to write a book about Planet UMass rather than trying to sue it.
First, there is not the potential of the massive jury award the way there are in other lawsuits. Sovereign Immunity limits the legal exposure of a public university, and often state laws protecting “private charities” do likewise for private ones as well. Administrators almost inevitably have liability insurance not to mention indemnification clauses in their contracts — regardless of what happens, they won’t have to pay anything.
Second, these are complicated lawsuits, higher education is a foreign world to most lawyers, and outside the “boilerplate” of a “slip & fall” or other commonly filed tort actions. Universities are Byzantine in nature, and “what you know” and “what you can prove” are at least three different things, often more. It is almost impossible to figure out who made what decision, let alone why, and remember that these Title IX Coordinators are acting independently (at least in theory) of all the other administrators with the authority to sanction students, so there are overlapping procedures as well, some of which may still be in process.
Third, Higher Education has largely adopted the old Soviet perspective of mental health — as all the administrators hold the same cultural and social values, anyone who doesn’t is inherently insane. The traditional heterosexual male is viewed as inherently insane, dangerously so, with assorted mental health diagnoses gratuitously stapled to the student.
It matters neither that these labels are completely unfounded nor that the people who stapled them on weren’t qualified to do so — it matters no more than the fact that the student didn’t rape anyone either. It matters even less in that denying you are mentally ill is considered additional evidence that you are, and he quite likely is told that refusing to admit to having committed offenses he hadn’t committed would be viewed as a worsening of his mental illness(es) and grounds for involuntary psych commitment.
The student knows (and is told just in case he doesn’t) that absolutely everything negative the university saying about him will become public if he files a lawsuit. If he can even find a lawyer to file it in the first place.
Hence most of the suits that ought to be filed never will be — and of the few that are, the institution will immediately offer a settlement with a mandatory nondisclosure agreement. His lawyer is going to want to accept it — even if the agreement with his lawyer doesn’t *force* him to do so, the lawyer isn’t going to pursue the matter further if he doesn’t.
And the nondisclosure agreement means that the settlement isn’t public — that no one knows about it.