Jul 252014
 
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Gender crazies make it official: the truth is ‘victim blaming’

July 25, 2014

In its continuing efforts to right gender inequities, the enlightened pundits of Cosmopolitan — whose previous work includes such hard-hitting pieces as “Guess the Olympic Bulge” — are taking on the most formidable monster they’ve ever battled: the truth. Cosmopolitan and other gender zealots are having a conniption over “offensive” posters at hospitals and colleges that carry the slogan “one in three reported rapes happens when the victim has been drinking.” Cosmo says these posters “go against” initiatives that battle “persistent myths” about rape, and that the posters are rightly condemned “for shifting the blame onto victims and clearly failing to point out that in fact, three in three rapes happen when a rapist decides to rape someone.”

First, the fact that at least a third, and likely a lot more, rape victims drink at the time they are assaulted is not a “persistent myth,” it is an indisputable fact, just as the sky is blue and water is wet, whether Cosmo likes it or not.

Second, the posters do not “blame” victims, excuse rapists, hate women, or, for that matter, advocate that the American League scrap the designated hitter. They provide useful information, and we do our daughters no favors hiding it. Dr. David Lisak’s research shows that the vast majority of campus rapists — 80.8% — report raping victims who were incapacitated because of drugs or alcohol. That is a staggering percentage, and our kids need to hear about it because (1) it’s a lot easier to spot and nab rapists when you know their modus operandi, and (2) our daughters ought to know they the are most vulnerable when they drink themselves to oblivion. But the PC police want to sweep it under the rug because they resent the fact that our daughters, but not our sons, are being told they need to be careful about doing a fun thing like drinking themselves to incapacity. (I, for one, am all in favor of telling our sons not to do it, too.) The gender zealots seem to detest any anti-rape efforts except the kind that tell “men” not to rape. Claims of rape advocates notwithstanding, Dr. Lisak also says that mild educational efforts telling men not to rape don’t stop the predators who commit the vast majority of rapes.

Third, are young women really so stupid that they need a poster to tell them that rape happens “when a rapist decides to rape someone”? Cosmo and like-minded advocates hold a pretty damn dim view of our daughters.

It is well to wonder if we will ever have a mature discussion about sexual assault when the public discourse is so terribly dominated by PC groupthink tainted with a radical feminist sensibility. We are stranded in an era where calling for due process in rape cases (see here, here and here) is considered “victim blaming.” So is calling for people to keep an open mind when it comes to rape accusations, and preaching safety, and failing to treat a false rape claim as if it were an actual rape, and calling for men and boys accused of sexual assault to be anonymous. They use the term “victim blaming” so loosely it means nothing at all. And the folks who scream “victim blaming” the loudest are often are at the forefront in rushing to judgment to assume the accused is guilty based on nothing more than an accusation. See here and here.

The lunacy at work here is self-evident. If feminists of good-will wonder why even Barbara Walters recently refused to embrace the “feminist” label, they ought to start condemning over-the-top efforts like this one. Telling a rape victim she “asked for it” is victim blaming; pointing out a fact that could spare countless young women from being raped is not. The vast majority of people who don’t spend big chunks of their day dissecting gender issues understand this. It’s time to weed out the loons who don’t get it before they do any more harm to our daughters.

Source: COTWA

Jul 242014
 

Title IX Profiteers

Fiddling Sociologist
June 22, 2014

Capitalism is like water. Just as water will always seek the tiniest nooks and crannies in which to seep, capitalists seek niches in which to earn profit. As anti-rape activists have seized on Title IX as a tool to dismantle college rape culture and to bring about safe and equitable campuses, some enterprising companies have discovered that helping universities resist change is profitable. I call them the Title IX profiteers.

The National Center for Higher Education Risk Management (NCHERM, http://www.ncherm.org/) is one of the Title IX profiteers. NCHERM is an umbrella law and consulting firm that has eight subsidiaries, several of which specialize in Title IX issues. Part of the new “risk management” industry targeting higher education, NCHERM and its subsidiaries have nearly single-handedly rewritten Title IX policies and procedures at universities through its expensive Title IX administrator training programs, policy-writing curricula, consultation services, and legal representation. They trained the new Title IX professionals into thinking about Title IX not as an issue of equity, as Title IX was designed to do, but as a risk to be managed. Through online workshops, on-site workshops, centralized workshops, and through individual consultation services and legal representation, NCHERM has revised the Title IX policies and practices of an untold number of schools and trained hundreds of administrators into thinking about Title IX the “NCHERM way.”

But the “NCHERM way” does not protect women or men from gender inequities, nor does it protect students from rape and sexual harassment as Title IX requires. In fact, the “NCHERM way,” as practiced at many schools, re-traumatizes victim-survivors and advocates who report sexual misconduct. And students and their advocates are resisting. Over the last several months, a virtual tidal wave of formal complaints have been filed against schools with the Department of Education’s Office of Civil Rights (OCR). In late May, 2014, OCR announced that it is investigating 61 colleges and universities for possible Title IX violations based on sexual assault and harassment. (They have released a separate list of schools and colleges that are being investigated for other possible Title IX violations, e.g. discriminatory athletics programs.) Although schools may minimize the pending investigation to claim that the investigation is merely “a compliance review,” as is the case at my university, correspondence from the Office of Civil Rights documents that the feds are investigating specific cases.

Of the 61 schools who are being investigated by OCR, 37 of them are NCHERM clients. That’s 60.6%, folks.

These facts make a rational person wonder why the 61 schools are throwing good money after bad. Presumably, if these schools hired NCHERM in the first place, then they followed NCHERM’s advice. They paid NCHERM to train their Title IX investigators the NCHERM way. Their Title IX coordinators joined ATIXA, one of the 8 subsidiaries, and attended Title IX how-to workshops. They paid NCHERM for model website text. They paid NCHERM to rewrite their Title IX policies the NCHERM way. They paid NCHERM to learn how to follow NCHERM’s “OCR-proof-your-school” practices. And yet they still got zinged by OCR. And now they’re paying NCHERM to represent them in the OCR investigation.

Is this not profiteering? And at whose expense? Who is carrying the costs to put profit into the hands of NCHERM and other higher education risk management consultants? And here I’m not just talking about costs in terms of money, but the costs to students and to the well-being of our university communities.

Below is a list of schools who are documented as being under OCR investigation as of 5-28-14 who are also listed on the NCHERM website as active clients. Also below is an email from a staff member at OCR that accompanied a list of all 61 schools that are being investigated.

Source: http://sineanahita.com/2014/06/22/title-ix-profiteers/

Jul 242014
 

Public Records and the Occidental Sexual Assault Controversy

By Robert Shibley
July 23, 2014

Last Friday afternoon, I received an email from Tyler Kingkade, an associate editor at The Huffington Post who has been covering the issue of sexual assault on college and university campuses. Kingkade was asking about FIRE’s case at Occidental College, where a student was found “responsible” for sexual assault despite the fact that the district attorney refused to charge him with any crime, and text message evidence indicates that both parties consented to having sex.

That student sued Occidental in February for what he feels is a wrongful guilty finding. Documents related to Occidental’s investigation of the student were entered as exhibits in his complaint back on February 13. Court filings are public records, accessible to anyone.

The names of the accusing and accused students were redacted by attorneys when the exhibits were filed in February. In May, the accused student’s attorney and the presiding judge agreed to further redactions at the request of the accusing student’s attorney. (This further redacted version is the version FIRE has posted.) In June, the judge denied an additional request by Occidental to seal and redact the court record further. The request was opposed by the Los Angeles Times, which has been covering the case.

When FIRE issued a press release highlighting the lawsuit and criticizing the finding of “responsibility,” we posted those court documents on our website, as they contain the evidence of Occidental’s wrongdoing. FIRE always posts primary sources when available. Doing so is necessary to provide proof to our readers, ensure the accuracy of our claims, and promote transparency.

Yesterday, Kingkade published a story on The Huffington Post insinuating that by posting the investigation report, FIRE had published a confidential document. That is incorrect. As a court filing, the document is part of the public record and has been accessible since February.

Kingkade claims that the document became public only after FIRE’s press release, writing that “after the FIRE’s involvement,” the report “has since been submitted to Los Angeles Superior Court.” Again, this is incorrect. As a court filing, the document has been publicly available to anyone since February, continued to be publicly available (with further redactions) at the time of FIRE’s press release, and is publicly available today.

Below, FIRE has reprinted for the record the original email from Kingkade and my reply. We will have more on the Occidental case here on FIRE’s website soon.

Kingkade’s email:

On Fri, Jul 18, 2014 at 2:07 PM, Tyler Kingkade wrote:

Hey guys,

I wanted to reach out about the Occidental case. I’m working on a story about some of the harassment the witnesses named in the investigator’s report are receiving following FIRE’s publishing of the document. I had a couple questions.

Was there a reason you elected to disclose all the witnesses who participated in the adjudication? Some of them are noting that because you’re identifying who was a roommate and where they lived, it provides enough clues to identify the alleged victim and the accused.

The witnesses and professor named in the documents say they started getting violent messages online after FIRE publishes the PDFs. One email to the professor said she should “nail her pussy shut.” Any comment there?

I also heard Occidental has tried to get you to remove the documents from the website, is that true?

Let me know if you’re able to respond via email or wish to hop on the phone.

Thanks,

Tyler

My response:

Tyler,

Thanks for writing.

As an initial matter, I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case. As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity.

To be clear: The court filings we posted are public records that are accessible to any member of the public. The names of the accused and the accuser were redacted by the attorneys in the case and, so far as I know, have not become public.

Occidental did attempt to return to court to seal one of the documents last month, but its motion was denied by the judge, who said, “I don’t understand why [it] is so pressing in June when it wasn’t so pressing in February.” Indeed, Occidental had four months to request further redaction of the documents or sealing of the documents. It did not do so.

Occidental’s motion was opposed both by the accused student and by the Los Angeles Times itself, which asserted the well-established interest of the public in transparency in judicial proceedings. FIRE agrees that the public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case. We therefore also declined, and continue to decline, to remove these public records from our website.

It is very telling that the investigation report has apparently become an issue only after Occidental’s inexcusable contempt for due process in this case came under fire in the media, and particularly only hours after the operator of the Occidental Sexual Assault Coalition’s Twitter account tweeted at a large number of people yesterday (including you) in an obvious attempt to pressure the Times and reporter Teresa Watanabe not to publish a follow-up story on the case.

I hope that in any report you publish on this situation, you will also explain the underlying case and the due process dispute that is at its heart. As far as I can tell, you have not so far chosen to report on this particular Occidental case. I confess this omission surprised me, as you generally do a thorough job of reporting on campus sexual assault cases. Given this will be your first reporting on the case, I am sure your readers would appreciate being brought up to speed on what is happening and why.

Robert

Source: FIRE

Jul 232014
 

Dear Friends,

RealClearPolitics is running an article by Carl M. Cannon entitled “America’s Long, Slow About-Face on Domestic Violence.”

Photo that accompanies the RCP article

Photo that accompanies the RCP article

The article is part of a series on Domestic Violence by RealClearPolitics.

While we appreciate the focus on domestic violence, we don’t appreciate the gender bias we found throughout this article.

See for yourself: http://bit.ly/1lxcxmS

Then voice your opinion by contacting RCP:

http://www.realclearpolitics.com/contact.html

Thank you,

teri

Teri Stoddard, Program Director
Stop Abusive and Violent Environments
www.saveservices.org

Can you help us grow? And please share this e-lert with a friend.

Jul 222014
 

At Swarthmore, “A Very Low Bar” to Deem Students a Rapist

By KC JOHNSON
JULY 21, 2014

Parents considering sending the child to Swarthmore College no longer can claim they weren’t warned.

The Sunday Philadelphia Inquirer had a lengthy and quite well-done article examining the increasing lawsuits filed by students accused of sexual assault who were victimized by a lack of due process in campus disciplinary proceedings. Most of the cases the article covers (Swartmore, Xavier, St. Joe’s—whose case despite the article’s suggestion still remains alive in federal court) will be familiar to Minding the Campus readers. But reporters Jeremy Roebuck and Susan Snyder obtained a remarkable quote from retired Pennsylvania Supreme Court justice Jane Greenspan, who Swarthmore hired to preside over its sexual assault disciplinary system.

Greenspan wouldn’t tell the Inquirer whether she thought it was appropriate that students be branded rapists based on the preponderance of evidence threshold, but both she and Swarthmore made clear that she would use the standard. But she described it as “a very low bar.” Somehow I doubt Swarthmore will be including this (correct) admission in any of its promotional material.

The Inquirer piece also examined a case I haven’t covered, at Philadelphia University. There, an accused student named Anthony Villar declined to participate in the process, in part because his attorney was excluded. Huffed attorneys for the school, “Villar’s lawsuit suggests that during an internal administrative disciplinary process, he was entitled to the rights of a criminal defendant.”

Consider the impact of the school’s action. Having been deemed a rapist, many schools won’t (understand) accept Villar as a transfer student. Many professions (any, basically, that require a background check) will be foreclosed to him. And, per guidelines of the White House Task Force, if Villar had participated in the process, material the school gathered (if favorable to the accuser) could be shared with law enforcement. But to the school, there’s no problem with keeping his attorney out of the process.

Finally, another follow-up from the Finger Lakes Times, raising more questions about the New York Times exposé of Hobart and Smith. We’ve already learned that (a) while a key witness didn’t testify on behalf of “Anna,” the Times didn’t interview the witness to find out why; (b) for reasons unexplained, the Times appeared not to have tried to interview the accused students its article described as liars; and (c) contrary to the insinuation in the Times article, Anna’s attorney didn’t share key evidence with the police, citing a desire for civil litigation.

The Finger Lakes Times piece features a strong condemnation of the Times article from the local DA, Michael Tantillo, and an unequivocal assertion that there was insufficient evidence to file charges. Of course, it could be argued, he’s now simply covering himself. But the article contains a significant point of context that the Times didn’t mention.

The Times stressed that the students who allegedly attacked “Anna” were football players. The insinuation: Anna was victimized because her rapists played football. But, it turns out, just a few years ago, Tantillo’s office successfully prosecuted, for rape, a former HWS football player. So there’s little reason to accept a perception of a school and town eager to protect football players. Why didn’t the Times tell its readers?

Source: MTC

Jul 212014
 

Prominent Title IX complainant who says her college ignored her sexual assault supports the lawsuit of a male ex-classmate who claims the school denied him due process when it expelled him for sexual assault

July 21, 2014

When it comes to the way colleges handle sexual assault, this is how broken the system is: a woman who brought a highly publicized Title IX complaint against her college for ignoring her sexual assault is supporting the lawsuit of a male student who is suing the same college for depriving him of his due process rights after he was accused of sexual assault in an unrelated incident.

You read that right. At Swarthmore, Mia Ferguson was one of two students who filed a highly publicized Title IX complaint and publicly claimed that the school ignore her alleged sexual assault. In an unrelated incident, less than two weeks after Ferguson’s claim was publicized, Swarthmore administrators reopened an an old complaint it had previously investigated and closed that was filed against a male student in connection with two sexual encounters he had with a classmate in 2011. The young man was expelled.

Let’s look briefly at the young man’s case. According to the young man’s attorney, neither of the alleged sexual encounters that gave rise to the claim against him involved intercourse, and the two students later had sex, which the accuser admitted she initiated. She didn’t report the alleged assaults for 19 months. The school investigated for two months, interviewing both the accuser and the accused multiple times, before closing the case in January 2013 without filing disciplinary charges. Then Ferguson’s claim was publicized, and the young man’s attorney said the school was determined to make an example of him. That’s when the case was reopened. He was a “whipping boy” that Swarthmore needed to demonstrate its own zero tolerance standard, his attorney claims.

Sadly, there’s nothing unusual about young men being used as sacrificial lambs to appease the Department of Education. It’s happening at many places. What is unusual is this, according to the Philadelphia Inquirer: “. . . the man’s lawsuit has picked up some unlikely support – from Ferguson, whose Title IX complaint last year made her one of the campus’ most outspoken victim advocates. She said the school’s past policies offered decent grounds’ for the legal action, regardless of whether he is guilty of sexual assault. ‘The school handled it so poorly,’ she said. ‘At the end of the day, it’s on the school for letting this lawsuit happen.’”

The views of Ferguson — a Title IX complainant and a woman who claims she was sexually assaulted — stand in stark contrast to the views espoused, for example, by the angry feminist professor who mocked the young men who’ve sued their colleges alleging due process violations. “These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape.” It would difficult to concoct a more hateful, dismissive comment — and she actually teaches young men at her college.

This illustrates two indisputable points:

First, when it comes to protecting students from sexual assault and from unfairly being punished for sexual assault, it’s not an either/or proposition or a zero sum game. Everyone benefits when the school protects students by aggressively weeding out rapists — so long as it is done fairly. To ignore the due process rights of the accused undermines both fairness and the perception of fairness. When a school is perceived as being unfair, even when it acts properly in expelling a rapist, it’s decision is suspect and will lack public confidence. That’s not good for anyone. Balance is critical. That’s why we need voices who will maturely and reasonably address the issues, not gender zealots who refuse to entertain even the possibility that schools aren’t treating young men accused of sexual assault fairly.

Second, the system is broken. When will the Department of Education realize that? While we don’t know the specifics of the Title IX complaints, we’ve seen enough to conclude that there is something wrong with the way many colleges handle sexual assault complaints. We do know more about the due process complaints filed by the young men and can attest that many schools are not treating the accused fairly.

What’s the solution? Many believe that rape claims ought to be handled by experts in law enforcement. But given the current cultural climate, it’s not remotely possible that the Department of Education would allow schools to turn all claims of sexual assault over to the police and then have nothing more to do with them. One compromise position seems to be gaining traction. Law professor John Banzhaf posits:

. . . one solution well worth trying, suggests Banzhaf, would be to have separate impartial bodies set up jointly by many colleges in a city or geographical area for the sole purpose of investigating and adjudicating date rape complaints. Unlike individual colleges, they would be able to employ full time trained investigators following established investigatory protocols to impartially get to the bottom of such claims.

Moreover, by using retired judges and others trained to evaluate evidence, they could better and more fairly – free from any possible biases – determine the truth much better than professors of computer science or geology who today often make up the disciplinary panels on many campuses.

Swarthmore is one of the schools headed in that direction, according to the Philadelphia Inquirer:

Under pressure for its handling of sexual-assault cases, Swarthmore College turned to an outsider to oversee them: a retired Pennsylvania Supreme Court justice.

The college last fall hired Jane Greenspan, who has decades of experience as a trial and appeals judge and who now works as a professional mediator and arbitrator.

“They wanted a neutral person, not connected to the college or the students,” Greenspan said. “I just listen to them and try to make the correct decision, as I would in any arbitration.”

Swarthmore previously used a panel of faculty, staff, and students to rule on the cases.

The Swarthmore job was Greenspan’s first appointment by a college to preside over sexual-misconduct hearings. Experts say such models are rare but likely to become more common as schools look to satisfy concerns that they mete out justice fairly.

“One way or another, schools are going to professionalize it,” said Brett Sokolow, president of the National Center for Higher Education Risk Management, based in Malvern. “They’ll either do it themselves or more and more, they’ll outsource it to firms like ours or to judges.”

Sokolow said he has recommended for years that colleges exclude students from judicial boards in sexual-misconduct cases. Inclusion of students deters some victims from coming forward, he said.

Nearly two-thirds of area colleges that responded to questions from The Inquirer said students have seats on their boards. But some schools, including Drexel, said they were reconsidering that policy.

At Rowan University, students are not included on boards hearing sexual-misconduct cases.

“That is primarily to protect the confidentiality of the victim and the accused,” said Melissa Wheatcroft, associate general counsel at Rowan.

To Swarthmore, Greenspan brings the in-depth knowledge of what standards, such as “preponderance” of evidence, mean. That’s the standard colleges must apply to find a student guilty. It simply means more than a 50 percent chance the crime occurred.

She declined to say whether she agrees with the standard, but noted, “It’s a very low bar.”

Greenspan presides over the cases and determines guilt or innocence, but she doesn’t impose the sanction – the school decides on that.

She declined to comment on Swarthmore’s system.

“I know Swarthmore has worked very hard to get it right . . . with everyone’s interest in mind, the rights of the accused and the victim,” she said.

She also declined to discuss any of the cases she has handled or even provide a number, except to say there were a few.

Swarthmore hasn’t committed to continuing to use an outside arbitrator. Its process, the college said, is under review.

“We continue to look closely at the array of best practices around the country for the fair, appropriate, and impartial adjudication of sexual assault and harassment cases,” said Alisa Giardinelli, Swarthmore spokeswoman.

Source: COTWA

Jul 212014
 

Domestic abuse shelters emerge from shadows

July 19, 2014

MILWAUKEE — Domestic abuse shelters, often tucked away in the protective privacy of an obscure neighborhood, have begun moving out of the shadows with more public profiles aimed at generating more community support and better access for victims.

Domestic Abuse Intervention Services in Madison is among the latest to make the move, opening a 56-bed shelter on July 30 in a commercial and high-density residential neighborhood on a bus line and close to health and job placement services used by its clients. The shelter has been in a nearly 100-year-old house in a low-profile neighborhood.

DAIS leaders said they consulted with nearly two dozen shelter programs around the country and visited several in Wisconsin before deciding to move. They learned that abusers were more likely to show up at hidden shelters, and workers and clients felt safer and received more community support in visible locations.

“When the community knows where the shelter is, they’re another set of eyes and ears to make sure people are safe,” said Shannon Barry, DAIS executive director.

Many shelters date to the 1970s, when the problem of domestic violence began to gain attention. Advocates sought to create refuges for victims who can face great risk when they separate from their abusers.

“The thinking at the time was really to create a safe space that an abusive partner couldn’t find,” said Patti A. Seger, executive director of End Domestic Abuse Wisconsin, a Madison-based advocacy organization for victims of domestic abuse. “This is a person who is fleeing danger.”

Many shelters started in houses that blended in with others in residential neighborhoods. They included Wisconsin’s first shelter, Woman and Children’s Horizons, which opened in Kenosha in 1976.

But advocates eventually realized the sense of security provided by a secret location was a bit of an illusion.

“Most shelters wrestle with the reality that over time the community comes to know they are there anyway,” Seger said. “There are many people who transport victims to the shelters — cab drivers, police officers or family members. Over time it often became fairly common knowledge as to the location of the confidential shelter.”

The original shelters were difficult to retrofit to meet accessibility requirements for state and federal funding, and as they aged, operators began looking for newer, larger spaces, advocates said. Greater visibility also seemed to result in more women seeking help and to foster public awareness.

The Harbor House, in Appleton, was one of the first in Wisconsin to make its shelter location known to the public in 1997.

“As we talked to women who were coming to use our service, when we were in a confidential location, they were challenged to find us,” said Beth Schnorr, executive director. With the move, “we got more volunteers, more donations. More people wanted to help,” she said.

The SafeHouse Center, in Ann Arbor, Michigan, made a decision to make its location public 10 years ago, putting up a big sign on its building and posting its address on its website. The shelter has high-level security, which its director declined to describe, and is a block from the local sheriff’s office.

“We believe that we’re a part of the community. The embarrassment lies with the assailant, not with the survivor,” said executive director Barbara A. Niess-May. “Survivors should be lifted up and recognized as part of the community.”

While thinking on shelters and secrecy has changed, laws require safe houses in some states to remain hidden, said Liz Roberts, the chief program officer for Safe Horizon, in New York, one of the largest organizations in the U.S. aiding abuse and crime victims. All of its shelters, which serve 3,000 clients annually, operate in confidential locations, as required by New York State’s Office of Children and Family Services, which issues their licenses.

“One of the realities is that you can’t ever predict with confidence how the situation will develop. Even a case that looks relative low risk … can escalate very quickly,” she said.

Milwaukee’s Sojourner Truth House, which serves about 550 women and children annually at a house in an undisclosed neighborhood, plans to break ground in September on a new shelter at a major intersection near downtown Milwaukee. Executive Director Carmen Pitre said the new shelter will include space for partnering organizations, such as Children’s Hospital of Wisconsin, child welfare workers and Milwaukee police, and “stand as a beacon to other people to get involved in solving the issue” of domestic violence.

Source: wsj.com

Jul 212014
 

College backlash and a difficult balancing act on sex assault

By Jeremy Roebuck and Susan Snyder

He called it consensual. She called it rape.

Their college, Swarthmore, acted decisively.

He was expelled.

Those spare facts make up the little that the parties can agree upon in a lawsuit working its way through federal court in Philadelphia.

The young man at its center – an honors student and former high school class president identified in court filings only as John Doe – says he was wrongfully accused and found guilty of sexual misconduct by a school eager to quash criticism that it did not take assault allegations from female students seriously.

“To correct one wrong – its past unresponsiveness to female complaints – [Swarthmore] committed another wrong against John based on his gender,” his lawyer, Patricia M. Hamill, wrote in court filings. “He was a male accused of sexual misconduct at the wrong time and in the wrong place.”

With universities across the country under pressure from victim advocates, government regulators and even the White House to respond more aggressively to sexual assaults on their campuses, several, including Swarthmore, are also facing lawsuits from male students who say the pendulum has now swung too far in the opposite direction.

And in a new wrinkle, many of those suing – including former students at St. Joseph’s and Philadelphia Universities – are pursuing sex-discrimination claims under Title IX, the federal law better known for its role in protecting women’s rights on college campuses.

Experts say the legal tactic is too new for them to determine whether it will stand up in court.

A federal judge in Philadelphia recently dismissed one male student’s Title IX claims against St. Joseph’s University, saying the plaintiff had failed to show that gender bias drove his expulsion for sexual misconduct.

A judge in Ohio, however, allowed a similar claim to proceed, saying the student might be able to demonstrate that the process set up to hear misconduct cases at Xavier University was unfairly stacked against men.

But the proliferation of these legal fights has sparked further debate on what part academia should play in policing a crime shrouded in conflicting accounts, often with no witnesses.

“We’re constantly in a balancing act,” said Melissa Wheatcroft, associate general counsel at Rowan University, “making sure victims are taken seriously and protected, and at the same time, protecting the rights of those who are accused.”

Brett Sokolow, director of the Association of Title IX Administrators, bluntly warned in a newsletter this spring that some male students may have been improperly penalized.

“Some boards and panels still can’t tell the difference between drunk sex and a policy violation,” he wrote. “We are making Title IX plaintiffs out of these men.”

45 minutes

Consider the case of Anthony Villar, who was finishing his junior year at Philadelphia University when he was expelled.

He sued the school in May, three months after a disciplinary board composed of one faculty member, one student, and one administrator concluded he had assaulted his ex-girlfriend sexually.

By all accounts, Villar and his accuser had dated for two years before the night of the alleged assault. Hours after they had sex, the couple dined at her parents’ house and stayed to watch a movie. She invited him back the next day.

Only after Villar admitted to his girlfriend that he had cheated on her with another woman did she tell school authorities she had been raped, said his lawyer, William Spade.

The disciplinary board took less than 45 minutes to find Villar guilty of sexual misconduct and expel him.

Under school policy, Spade was barred from aiding Villar at the hearing. Acting on his lawyer’s advice, Villar chose not to participate.

“The accused can’t really participate meaningfully at a hearing like that if he’s under police investigation,” Spade said.

But if Villar’s suit seeks to make a stand on behalf of men accused of sexual assault on college campuses, his accuser’s lawyers have responded with equal breadth and force.

“Anthony Villar wants to set a precedent that any woman who comes forward and claims she is sexually assaulted can now be sued in federal court,” they said in court filings.

Lawyers for Philadelphia University contend Villar fundamentally misunderstands the issues.

“Villar’s lawsuit suggests that during an internal administrative disciplinary process, he was entitled to the rights of a criminal defendant,” wrote school lawyers James A. Keller and Joshua W.B. Richards.

The university’s very quarrel with that, Spade says, is exactly the problem.

Lack of access

Villar’s complaints against the university’s disciplinary process echo those voiced in several of the Title IX suits filed against schools such as Vassar, Duke, Columbia, and Delaware State.

All cite a lack of access to lawyers and, in some cases, the chance to cross-examine their accusers.

Others question the makeup of disciplinary boards, which are frequently composed of some combination of administrators, faculty, and students, who rarely have backgrounds in sexual assault, investigative technique, or the law.

Many of the suits take issue with a 2011 mandate from the U.S. Department of Education that campuses lower the standard of proof needed in sexual-misconduct hearings.

Colleges now use a “preponderance of the evidence” standard in sexual-misconduct cases, meaning that an assault was more likely to have occurred than not. In contrast, the criminal justice system requires proof beyond a reasonable doubt for a conviction.

But underlying the complaints common to each of the lawsuits, one question lingers: Given the potentially life-altering ramifications of a sexual-assault accusation, why have colleges taken on the responsibility of investigating in the first place?

“If universities are going to hear these cases and make conclusions about whether or not felony crimes occurred, they need to provide as much due process as possible,” said Robert Shibley of the Philadelphia-based Foundation for Individual Rights in Education.

Obama task force

Assault victims can – and often do – report campus rapes to police. But for many, notifying college administrators of their assaults offers an alternative to the laborious and not always successful process of the criminal justice system.

Schools are not required to report rape accusations to police against a victim’s wishes. But they must include any reports they receive to the federal government in annual crime statistics.

Department of Education guidelines and a series of U.S. Supreme Court decisions over the last 30 years cemented colleges’ responsibility to investigate all reports they receive by casting failure to do so as a form of sex discrimination.

Within that framework, school administrators say they are doing their best in what has recently become an increasingly pressured environment.

In recent months, Stanford, Harvard, Columbia, and Dartmouth Universities have all faced student protests and federal complaints that they failed to adequately investigate or assist sexual-assault victims.

Earlier this year, President Obama commissioned a task force to investigate the problem and last month proposed new rules to “ensure that disciplinary proceedings . . . are prompt, fair, and impartial.”

In April, the Department of Education announced it was investigating 55 colleges including Swarthmore, Temple, and Pennsylvania State University.

Few colleges have grappled as publicly with the issue as Swarthmore.

A highly selective college of 1,500-plus students in Delaware County, it became a flash point last year for anxiety surrounding the handling of sexual assaults on its campus.

The college’s student newspaper published a series of articles featuring women who said they felt revictimized by the college’s failure to take their complaints seriously.

Students scrawled complaints about sexual assault in chalk around campus. And when those protests disappeared, activists accused administrators of attempting to hide the problem from prospective students and their families.

A formal Title IX complaint filed that spring by Hope Brinn and Mia Ferguson, two students who said they had been sexually assaulted and then ignored, only stoked the outrage. They alleged that the college’s inaction amounted to a form of discrimination against women.

It was in that environment that the student known in court filings as John Doe says he became a scapegoat.

Though his identity is known to the court, the man filed his suit against Swarthmore in January under a pseudonym.

His lawyer, Hamill, declined to identify her client or make him available for an interview, saying he hoped to avoid any further damage to his reputation. Hamill also declined to comment on the case.

Court filings, however, make clear the man’s belief that Swarthmore’s concern over its reputation ultimately led to his expulsion.

‘Clear inference’

Less than two weeks after Brinn and Ferguson’s highly publicized Title IX complaint went public, Swarthmore administrators informed the man, an aspiring law student from Durham, N.C., that they had reopened a complaint filed against him nearly a year earlier.

It centered on two sexual encounters he had with a classmate in 2011. While neither involved intercourse, the two later had sex, which the woman said she had initiated.

When she reported him to Swarthmore’s administrators 19 months later, she said that the two earlier sexual encounters had been coerced.

The first time around, the school investigated for two months – interviewing both the accuser and the accused multiple times – before closing the case in January 2013 without filing disciplinary charges.

When the school reopened the case that May – six months after the woman came forward and two years after the alleged assaults occurred – administrators seemed determined to make an example of him, Hamill contends in the suit.

At his disciplinary hearing, members of the board were overcome with emotion as the woman testified, Hamill said.

When it was her client’s turn to address them, one member interrupted his presentation to ask about the alleged victim’s welfare, according to the suit.

Doe’s accuser declined, through an intermediary, to comment for this story.

Hamill contends that in handling the case, Swarthmore departed from its stated disciplinary policies.

“The clear inference to be drawn from the panel’s extraordinary conduct . . . is that the panel had predetermined that [she] was the victim and John was the victimizer,” Hamill wrote. “John was the whipping boy that Swarthmore needed to demonstrate its own zero tolerance standard.”

Swarthmore has denied those allegations and maintains that its disciplinary process complies with federal guidelines.

The college continues to examine its policies to ensure fairness to all involved, said Nancy Nicely, Swarthmore’s vice president for communications.

In the last 15 months, the school has done away with the setup that led to Doe’s expulsion.

Instead, a retired state Supreme Court justice hired by the school now hears all sexual-misconduct cases, rather than a disciplinary board. The college determines punishments for those found guilty.

“Swarthmore has worked tirelessly to . . . turn this college into a model of proactivity in preventing, addressing, responding to, and adjudicating sexual assault and harassment,” Nicely said.

Still, the man’s lawsuit has picked up some unlikely support – from Ferguson, whose Title IX complaint last year made her one of the campus’ most outspoken victim advocates.

She said the school’s past policies offered “decent grounds” for the legal action, regardless of whether he is guilty of sexual assault.

“The school handled it so poorly,” she said. “At the end of the day, it’s on the school for letting this lawsuit happen.”

Who should judge campus cases?

Under pressure for its handling of sexual-assault cases, Swarthmore College turned to an outsider to oversee them: a retired Pennsylvania Supreme Court justice.

The college last fall hired Jane Greenspan, who has decades of experience as a trial and appeals judge and who now works as a professional mediator and arbitrator.

“They wanted a neutral person, not connected to the college or the students,” Greenspan said. “I just listen to them and try to make the correct decision, as I would in any arbitration.”

Swarthmore previously used a panel of faculty, staff, and students to rule on the cases.

The Swarthmore job was Greenspan’s first appointment by a college to preside over sexual-misconduct hearings. Experts say such models are rare but likely to become more common as schools look to satisfy concerns that they mete out justice fairly.

“One way or another, schools are going to professionalize it,” said Brett Sokolow, president of the National Center for Higher Education Risk Management, based in Malvern. “They’ll either do it themselves or more and more, they’ll outsource it to firms like ours or to judges.”

Sokolow said he has recommended for years that colleges exclude students from judicial boards in sexual-misconduct cases. Inclusion of students deters some victims from coming forward, he said.

Nearly two-thirds of area colleges that responded to questions from The Inquirer said students have seats on their boards. But some schools, including Drexel, said they were reconsidering that policy.

At Rowan University, students are not included on boards hearing sexual-misconduct cases.

“That is primarily to protect the confidentiality of the victim and the accused,” said Melissa Wheatcroft, associate general counsel at Rowan.

To Swarthmore, Greenspan brings the in-depth knowledge of what standards, such as “preponderance” of evidence, mean. That’s the standard colleges must apply to find a student guilty. It simply means more than a 50 percent chance the crime occurred.

She declined to say whether she agrees with the standard, but noted, “It’s a very low bar.”

Greenspan presides over the cases and determines guilt or innocence, but she doesn’t impose the sanction – the school decides on that.

She declined to comment on Swarthmore’s system.

“I know Swarthmore has worked very hard to get it right . . . with everyone’s interest in mind, the rights of the accused and the victim,” she said.

She also declined to discuss any of the cases she has handled or even provide a number, except to say there were a few.

Swarthmore hasn’t committed to continuing to use an outside arbitrator. Its process, the college said, is under review.

“We continue to look closely at the array of best practices around the country for the fair, appropriate, and impartial adjudication of sexual assault and harassment cases,” said Alisa Giardinelli, Swarthmore spokeswoman.

Source: philly.com

Jul 192014
 

The “Affirmative Consent” Trap

California lawmakers take on “rape culture” at the expense of rights

18 July 2014
By Ben Boychuk

An epidemic of sexual assault is supposedly raging on college campuses. Surveys and studies repeat the same frightening statistics: either one-in-four or one-in-five college women have been the victims of a sexual assault. Yet at a June hearing of the California State Assembly Higher Education and Joint Legislative Audit committees, chairman Das Williams couldn’t understand why the number of students disciplined for sexual misconduct was so low. A University of California at Berkeley administrator, for example, reported just 10 suspensions or expulsions out of 43 cases involving non-consensual sex over the last six years. How could that possibly be?

Williams, a Santa Barbara Democrat, concluded that the number of suspensions and expulsions of these alleged perpetrators of sexual violence had to increase. The consequences for student assailants are “not significant enough to act as a deterrent,” he warned—failing to consider that perhaps the problem of campus sexual violence isn’t as widespread as he’d been led to believe. In any event, Williams’s point was unmistakable: California’s universities had better start punishing more alleged offenders, or there will be consequences for the universities. And if administrators need a lower standard of proof to boost punishments, he and his colleagues would be more than happy to give it to them.

Williams is promising a slate of bills early next year that would mandate training for all university employees to respond to, and intervene to prevent, sexual assault, and, more significantly, to beef up punishments for alleged assailants. “Rape is a very difficult thing to prosecute,” he told the Sacramento Bee. Because most college disciplinary boards already use the lower “preponderance of evidence” standard—as opposed to the more rigorous “reasonable doubt” standard that criminal courts apply—“there is a real role that schools can play that law enforcement can’t.”

The reigning assumption in Sacramento—and Washington, D.C., for that matter—is that universities aren’t taking the problem of campus sexual assault seriously enough. A state audit released in June drew precisely that conclusion, and recommended that California’s state universities “do more to appropriately educate students on sexual harassment and sexual violence.” Every campus has a rape crisis center of some kind, with counselors on call 24 hours a day, seven days a week. Every campus police department offers rape defense programs. “Take Back the Night” programs are ubiquitous. Is more training and “education”—meaning more bureaucracy—really the answer?

Neither the legislature nor the state auditor seems to challenge the claim, unchanged and virtually unquestioned for nearly 30 years, that either one-in-four or one-in-five college students is a victim of sexual assault. As Heather Mac Donald has pointed out, if that figure is correct, “campus rape represents a crime wave of unprecedented proportions.” But it’s almost certainly not accurate. “No crime, much less one as serious as rape, has a victimization rate remotely approaching 20 or 25 percent, even over many years,” Mac Donald observes. Consider the one-in-four or one-in-five figure in light of the number of sexual assaults reported in the nation’s most crime-ridden cities. Mac Donald notes, for example, that the rape rate in New Orleans was .0234 percent in 2012.

The legislature wouldn’t be so keen to do something—anything—about the so-called campus “rape culture” if the federal government wasn’t demanding action and threatening to withhold precious education funding if states don’t show results. At the June hearing, Williams cited the Clery Act, which requires any college or university that participates in federal student financial aid programs to disclose crimes on and around campus, and makes specific provisions for victims of sexual assault. More worrisome, however, are the threats from the U.S. Department of Education to crack down on campus sexual assaults using Title IX of the 1964 Civil Rights Act.

At a conference on campus sexual assault at Dartmouth College earlier this week, Assistant Secretary of Education for Civil Rights Catharine Lhamon said she wouldn’t hesitate to deny a school’s federal funding if administrators didn’t toe the line. “Do not think it’s an empty threat,” Lhamon said Monday. “It’s one I’ve made four times in the 10 months I’ve been in office. So it’s one that’s very much in use.” Two weeks ago, the department’s Office of Civil Rights announced it was adding a dozen schools to the list of 55 colleges and universities already under investigation for violating Title IX. A handful of California campuses, including UC Berkeley, are now under federal scrutiny. Thirty-one Berkeley students filed two federal complaints against the university in February. They claim university officials violated federal law by failing to protect them against sexual assault.

And Congress appears prepared to go even further. Last week, Senator Claire McCaskill, D-Missouri, released a study alleging widespread failure among U.S. colleges and universities to arrest this widely reported epidemic of sexual assaults. Among her report’s harrowing details: More than 40 percent of 300 schools surveyed had not investigated a sexual violence claim on campus in the past five years. “Which means,” the senator said, “they’re saying that there have been zero incidents of sexual assault on their campuses in the last five years. That is hard to believe.”

Legislation is almost always a blunt instrument. State Senator Kevin de Leon’s SB 967 seems blunter than most. If passed, the Los Angeles Democrat’s law would require state college and university students to obtain “ongoing” “affirmative consent” throughout “a sexual activity.” Just imagine the complications. De Leon’s bill says: “Lack of protest or resistance does not mean consent, nor does silence mean consent.” Fine, but it’s hard to see how such a law could possibly work. As written, SB 967 offers an unsettlingly vague definition of “affirmative consent.” Such consent, the bill’s language states, “means affirmative, conscious, and voluntary agreement to engage in sexual activity.” De Leon insisted when he introduced the bill in February, “there’s nothing that’s vague, there’s nothing that’s ambiguous to this equation right here.” But cut to its essentials, his bill relies on a tautology: “Affirmative consent means . . . affirmative . . . agreement.”

Even feminist supporters of affirmative consent laws perceive the trouble. “On a societal level, we have a lot of work to do on how we view sexuality and gender before we make a dent in our rape problem,” wrote Martha Kempner, a consultant and “sexual health expert” who blogs at RH (Reproductive Health) Reality Check. “I also recognize that these laws may be impossible to enforce and may not, in the end, make it any easier to punish rapists; there will no doubt still be he said-she said battles over who said ‘yes’ and when.” Still, despite these misgivings, Kempner finds herself “hopeful at the thought of this law passing in California.” At Slate, meanwhile, Amanda Hess waxes enthusiastic about de Leon’s legislation, as long as the bill is “broad enough to include nonverbal cues.” It isn’t.

In our postmodern age, sexual assault has come to mean practically any unwanted, unexpected, or regretted sexual encounter—to the point that the term encompasses everything and nothing. But faced with the possibility of federal lawsuits or worse, it’s no surprise that nervous lawmakers respond with a bill like SB 967, which would employ vague terminology to empower university administrators to indict, prosecute, and convict students for what are by definition criminal offenses. If a student has committed rape, it should be a law enforcement matter first, and disciplinary issue second. Instead, the legislature would risk further running roughshod over due process and dismantling the constitutional right of the accused to confront his accusers. Victims of sexual assault, Williams said at the June hearing, “don’t just want support, they want justice.” But legislators and bureaucrats don’t want justice—they want punishment. And they’ll mete it out anyway they can.

Source: city-journal.org

Jul 182014
 

Wells v. Xavier University: Investigating Campus Sexual Assaults and The Perils of Predetermination Under Title IX

By Michael McKeon
7/15/2014

The recent wave of Title IX complaints filed with the United States Department of Education’s Office for Civil Rights [“OCR”], claiming that colleges and universities were either ignoring or mishandling reports of sexual assaults has underscored the importance of implementing effective student sexual harassment policies and procedures. At the same time, the recent case of Wells v. Xavier University serves as a cautionary note that in responding to claims of sexual assault, educational institutions must ensure that their procedures are applied equitably and that predetermination does not supplant proper investigation.

In Wells, the plaintiff was accused of rape in July 2012, following what he alleged was consensual sexual relations with his dormitory’s resident advisor. Multiple witnesses who saw the resident advisor shortly after the sexual encounter indicated that her demeanor was completely normal, and a subsequent medical examination showed no trauma. Based upon his investigation, the county prosecutor developed reservations about the female student’s veracity, but despite the prosecutor’s recommendation to Xavier’s president that the school drop the matter, Xavier’s University Conduct Board [“UCB”] convened a hearing and found that Mr. Wells had committed a “serious violation” of the school’s code of conduct, which resulted in his expulsion.

Mr. Wells ascribed Xavier’s actions to the fact that a few months earlier — in both January and February 2012 — OCR had initiated investigations into the school’s handling of student sexual assaults, including one in which a male student accused of assaulting two women had allegedly been permitted to remain on campus. Xavier ultimately entered into a resolution agreement with OCR, and Mr. Wells claimed that the university and its president were intent on making him “a scapegoat so as to demonstrate [to OCR] a better response to sexual assault.” In his federal court complaint, Mr. Wells alleged two violations of Title IX as well as a number of common law claims, including libel, infliction of emotional distress, negligence and breach of contract.

On March 12, 2014, a federal judge in the Southern District of Ohio denied Xavier’s Motion to Dismiss Mr. Wells’ Title IX and common law claims. It is important to note that a dismissal motion such as Xavier’s is designed to test the legal sufficiency of the particular cause of action to which it is directed, and in adjudicating the motion, the court cannot consider extrinsic evidence but is instead limited to the allegations in the complaint, which must be construed in favor of the party opposing the motion. Consequently, in denying Xavier’s Motion to Dismiss, the court was not saying that the plaintiff had proven his case but simply that he had adequately alleged one. In fact, despite denying Xavier’s motion as it pertained to one of Mr. Well’s Title IX claims, the court noted: “Whether Plaintiff can unearth adequate evidence to support such claim against further challenge remains to be seen.” Nonetheless, approximately one month following the court’s decision, Xavier settled the lawsuit, a development which at the very least invites further consideration of Mr. Well’s claims, particularly as to Title IX.

Mr. Wells alleged two violations of Title IX, first claiming that both the process and the substance of the disciplinary proceedings were skewed against him due to his gender. Specifically, the plaintiff claimed that Xavier had “rushed to judgment,” had failed to train the UCB members, had ignored the county prosecutor, had denied the plaintiff legal representation, the right to cross-examine, and the right to character witnesses although the female student was afforded that right. He asserted that Xavier subjected him to this disparate treatment simply because he was male — a violation of Title IX — and because the university wanted to show OCR that it was taking sexual assault accusations seriously. Referencing these same actions, as well as the university president’s awareness of them, Mr. Wells alleged in his second Title IX claim that the president – and, by extension, Xavier – had been deliberately indifferent to this discriminatory treatment.

Significance of the Wells case

Even in its truncated form, the court’s decision in Wells serves to remind educational institutions that when sexual assault or harassment is alleged, guilt should not be a foregone conclusion, for as is true with denials, accusations are not, in and of themselves, dispositive. To the contrary, while schools must respond to such accusations in a prompt and meaningful manner, they are also obligated to ensure that investigations are approached — and subsequent disciplinary proceedings conducted — in a fair, balanced and open-minded manner, regardless of the genders of the respective parties. Thus, those individuals and bodies vested with the responsibility for investigating claims and issuing disciplinary consequences must, as OCR itself requires, have adequate training on both the substance of Title IX and the hearing procedures that the school has adopted in accordance with Title IX.

Source: jdsupra.com