Nov 232014

New Jersey Looks at “Yes Means Yes” College Policy

November 23, 2014

Laura Dunn, executive director of the sexual assault survivors’ organization SurvJustice, said she was raped as an undergraduate at the University of Wisconsin in 2004, after a night of drinking at a party by two men and fellow members of the crew team. She agreed to be identified by The Associated Press.

Dunn believes such a standard could have helped her case during campus judicial proceedings, which failed to find wrongdoing. Her experience led her to become an advocate for sexual assault survivors, she said.

“Had they had an affirmative consent standard they would have realized I would never have consented,” she said.

But skeptics of the policy raise questions — many of which have yet to be settled because the standard is new and it is unclear how many cases have been subjected to the standard— about whether it offers enough protections to the accuser and accused alike.

Affirmative consent standards could unfairly shift the burden of proof to the accused, critics say, pointing out that any sexual contact could then be ruled inappropriate absent some proof of consent.

Some critics also say they could prove to be unfair to victims, who may themselves facing a heavier burden during campus tribunals under Title IX — widely known as the law governing the role of men and women in athletics, but which also aims to protect students from sexual discrimination — which currently defines the standard as “unwelcome and offensive touching.”

Yes means yes “sounds so darn good,” said Wendy Murphy, an adjunct professor at New England Law and an attorney handling sex assault cases. “(But) it doesn’t get better than ‘unwelcome and offensive.'”

Some students, though, express skepticism over the “unwelcome and offensive” standard, saying it fails to convey the seriousness of sexual assault. Student groups at Harvard started a petition last month to get their university to adopt affirmative consent language.

“We certainly agree with the university’s desire to address a wide range of behaviors through their policy,” said Jessica Fournier, a member of Our Harvard Can Do Better, one of the groups organizing the petition. “However, we believe referring to these acts simply as ‘unwelcome’ does not encapsulate the severity of these actions.”

Nationally, reports of forcible sexual offenses on campus rose from 3,443 in 2011 to 4,062, according to the Education Department. In New Jersey, the figure rose from 78 in 2011 to 83 in 2012, the most recent year available. That’s because of increased reporting of crimes due to a culture change and greater support for victims, said Paul Shelly of the New Jersey Association of State Colleges and Universities. Indeed, only 13 percent of forcible sexual assault victims reported the crime to police or campus authorities, according to a 2007 National Institute of Justice study.

What changed, experts said, are students’ attitudes.

“It’s great that it’s receiving this attention, but it’s not a new issue. I think what’s fueling it are student protests about how their institutions have mishandled cases,” said Sarah McMahon, the co-director of Rutgers’ Center on Violence Against Women and Children.

In New Jersey, state Sen. Jim Beach introduced legislation since the debate was making waves nationally. The bill that would withhold state funds from colleges and universities unless they adopt an affirmative consent standard is still waiting for its day in committee.

“We saw what happened in California, realized that it was a problem not only in California but in New Jersey and other campuses around the country,” Beach said. “So we thought that if we did that we would certainly accomplish raising awareness of the entire problem.”

Skeptical supporters said the policy needs to be coupled with education in order for it to succeed.

“The policy is not a magic bullet,” McMahon said.


Nov 232014

The Harvard 28 to the Rescue on Sexual Harassment

R. Emmett Tyrrell, Jr.
October 22, 2014

Mirabile dictu. Fully 28 professors and former professors from Harvard Law School have taken a stand for freedom and for the rule of law. They are on the side of the Constitution and simple fairness.

As Ivy Leaguers go, their stand took courage. No other Ivy League school has had the temerity to buck the bullying of the federal government’s Department of Education over its threat to punish universities that it adjudges as being lax on allegations of sexual assault or sexual harassment. That is right. The Department of Education says it will withhold funding if its ukase is not followed by suspect universities. Harvard is suspected of such laxity by the Department of Education, and so the university hopes to mollify the government bureaucrats by enforcing a draconian policy toward alleged sex offenders.

The Harvard 28 responds that this policy is unfair. Furthermore, the university has a vast enough endowment to go, if need be, its own way. What is an endowment for anyway, if not to ensure the independence of a university? Raise a toast to Harvard Law.

Says professor Janet Halley, one of the Harvard 28: “It’s a totally secret process, in which real genuine unfairness can happen, and it’s so airtight that no one would know” if it were to happen. According to an op-ed piece signed by Harvard’s heroic 28 and posted online in The Boston Globe, “Harvard has adopted procedures [in its recently adopted sexual-misconduct policy] for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required” by the Department of Education’s anti-discrimination law.

What are these processes? They are processes that would not be brought against a person accused of sexual misbehavior in a court of law anywhere in America. Possibly they would be applied to the accused in courts governed by Shariah law, but not in an American court governed by the protections of the Constitution. Here our Constitution assures the accused of the right to counsel, the right to confront a witness against him or her (though probably only him), and the right to cross-examine the witness, including the right to expose any biases or reason for lying. Yes, lying. A startlingly high percentage of sexual-misconduct cases have been thrown out of court because the alleged victim was caught in a lie. Yet the Harvard policy denies the accused any of these elemental rights.

In response to the Harvard 28’s op-ed piece, a Harvard sophomore bearing the geographically fetching name of Savannah Fritz sniffed that the profs’ piece was a “a step backward.” She elaborated, “It just seems like they’re defending those who are accused of sexual assault.” Yes, I think that is true, but are not adepts at the law supposed to protect the accused from a rush to judgment? Is not everyone presumed innocent until proven guilty? And have not all the aforementioned protections of the Constitution been adopted to ensure that the innocent go free and the guilty are punished? What makes a sex offense different from any other criminal offense?

Sexual disagreements have, over the years, particularly among students and within universities, defied satire. Another Harvard student, MaryRose (that is the correct spacing of her name) Mazzola, a member of something called “Harvard Students Demand Respect,” says that her group is insisting upon even more stringent measures against sexual misconduct. They have begun circulating a petition demanding that students sign a “consent decree” before embarking upon lovemaking. Presumably it would involve checking off a box for each stage in the march toward coital bliss. For instance, check off “Now we kiss disinterestedly” or “Now we kiss passionately.” Then “Now we take a break.” Later, Ms. Mazzola might authorize a check mark adjacent to “You may touch my breast,” being careful to specify “The one on the left” or “The one on the right.” And so it would go until the final tremulously scratched check: “Now, you idiot!”

May I suggest that all students possessed of a healthy libido avoid Harvard Yard, at least until the heroic Harvard 28 ensure their rights?


Nov 232014

Here’s Why Colleges Are Suddenly Demanding Students’ Sex Histories

Tess Barker
November 19, 2014

Their financial aid has been cleared, they’ve perhaps chosen a major, but — in order to register for classes this semester — students at Florida Atlantic University will have to jump through one more administrative hoop: surrendering detailed information about their sex lives.

Call it “TMI U.” The school is requiring students to complete an anonymized questionnaire that asks how often they’ve had sex (including oral sex) in the past three months, and how frequently they use a condom. FAU students are protesting that it’s an invasion of their privacy, as did Clemson University students earlier this year over the same mandate.

It’s no coincidence; it’s part of a two-hour course from CampusClarity called “Think About It,” intended to help reduce instances of sexual assault on campus. And the company’s chief instructional designer, Jeremy Beckman, tells MTV News that it’s currently being used at hundreds of U.S. schools.

Clemson rescinded its policy on mandatory enrollment in the course, but Beckman — who feels that certain media outlets have sensationalized the questionnaire — says such a “campus climate survey” is part of a new federal law. We asked him to explain why schools are asking for such personal details, whether the data could possibly be traced back to individuals or hacked, and the future of “Think About It” in response to all the criticism.

MTV News: How many schools are using the program? Which are some of the most well-known ones?
Jeremy Beckman: Over 200 schools are using the program, and that number is growing, especially now because we’ve rolled out a program that is for graduate students. … I can’t divulge [which schools], it does include a variety from small schools to large schools, private and state schools. Geographically, it’s very diverse — all over the United States.

MTV: What is the motivation behind the program?
Beckman: We developed the program in tandem with a couple schools as a way to address the upcoming need to provide training to their students as part of the Campus SaVE [Sexual Violence Elimination] Act regulations, coming out later this year, which will define what precisely they’ll need to cover in detail.

Providing training to your students is going to be required [by the U.S. Department of Education]. … We’re trying to produce a program that provides students with vocabulary and awareness of the issues.

MTV: How does asking about students’ sexual histories help prevent sexual assault?
Beckman: The more information they have about the behaviors of their students, the more they can tailor to the needs of their particular campus. … To be absolutely clear, the data is de-identified; we as an organization, nor the schools, have the ability to see who responded to these questions in what way.

To be honest with you, asking these questions isn’t our idea. The Campus SaVE Act is also going to strongly suggest universities take a campus climate survey…so the types of questions we’re asking are right in line with what schools are going to ask anyway.

MTV: Do you feel students should have the ability to opt out of answering personal questions?
Beckman: Starting this coming year, we’re going to add an option to any of these questions where they can decline to state. It is going to be in 2015 — when, precisely, I can’t say. [Right now] if you don’t want to provide data, you could say “zero” in a lot of cases; that obviously skews our data, but if students didn’t want to provide this information, that’s the equivalent to do so.

We do think it’s something they should be able to opt out of, if they want — what’s more important is to provide programming. Our highest priority is them being able to have this vocabulary, this emphasis on the tools.

MTV: Are the survey results safe from hackers who could link the answers back to students?
Beckman: There are multiple levels of security, plus all of these answered data are not stored associated with the students. I can’t say it’s impossible, but…the data is stored in different places and the actual answer data is stored in aggregate form. It would be very difficult even for us to go in and re-identify answer data with individuals.

MTV: Do you feel the media has unfairly portrayed “Think About It” based on the questionnaire?
Beckman: They haven’t misrepresented facts so much as they have very conveniently — or possibly unfairly — chosen to narrow in and focus on one very small detail within a much larger program. So, especially when taken out of context, these questions feel very invasive. … A majority of the questions are really not that personal.

MTV: What do the other questions tend to ask?
Beckman: As an example, a lot of them are based on perspective or opinion. Associated with hooking up, there’s a question that asks, “If someone has been flirting with another person all night, they owe them something at the end of the night. Agree or disagree?” What we’re doing in this case is to provide the university with an understanding of the mindset of the students.


Nov 232014

UVA Suspends Fraternities Following Rolling Stone Report

November 22, 2014

Following Rolling Stone publishing Sabrina Rubin Erdely’s harrowing report “A Rape on Campus,” which detailed a pattern of sexual assault among the fraternities at the University of Virginia, many women who attended UVA emailed Rolling Stone sharing their own similar stories. After “A Rape on Campus” went viral, the school itself acknowledged the Rolling Stone article by promising to make changes to their student sexual misconduct policy. Now, the University is taking even more stern action.

President Teresa A. Sullivan announced in a letter to students and alumni that the school’s fraternities have been suspended effective immediately. The suspension will last until January 9, 2015, which marks the beginning of the spring semester. In that time, “we will assemble groups of students, faculty, alumni, and other concerned parties to discuss our next steps in preventing sexual assault and sexual violence on Grounds,” Sullivan writes.

“The wrongs described in Rolling Stone are appalling and have caused all of us to reexamine our responsibility to this community. Rape is an abhorrent crime that has no place in the world, let alone on the campuses and grounds of our nation’s colleges and universities,” Sullivan continues.

“As you are aware, I have asked the Charlottesville Police Department to investigate the 2012 assault that is described in Rolling Stone. There are individuals in our community who know what happened that night, and I am calling on them to come forward to the police to report the facts. Only you can shed light on the truth, and it is your responsibility to do so.”

Read the entirety of Sullivan’s letter below:

Dear members of the University Community,

Over the past week many of you have reached out to me directly to offer your opinions, reactions, and suggestions related to combatting sexual violence on Grounds. I want you to know that I have heard you, and that your words have enkindled this message.

At UVa we speak in idealistic terms: honor and tradition inform our thinking, and balance our daily actions. And it is easy here, where success is demanded as much as it is sought, to let our idealism outweigh our reality. Jefferson, as he always does, provides a compelling backdrop:

It is more honorable to repair a wrong than to persist in it.

The wrongs described in Rolling Stone are appalling and have caused all of us to reexamine our responsibility to this community. Rape is an abhorrent crime that has no place in the world, let alone on the campuses and grounds of our nation’s colleges and universities. We know, and have felt very powerfully this week, that we are better than we have been described, and that we have a responsibility to live our tradition of honor every day, and as importantly every night.

As you are aware, I have asked the Charlottesville Police Department to investigate the 2012 assault that is described in Rolling Stone. There are individuals in our community who know what happened that night, and I am calling on them to come forward to the police to report the facts. Only you can shed light on the truth, and it is your responsibility to do so. Alongside this investigation, we as a community must also do a systematic evaluation of our culture to ensure that one of our founding principles– the pursuit of truth – remains a pillar on which we can stand. There is no greater threat to honor than secrecy and indifference.

I write you today in solidarity. I write you in great sorrow, great rage, but most importantly, with great determination. Meaningful change is necessary, and we can lead that change for all universities. We can demand that incidents like those described in Rolling Stone never happen and that if they do, the responsible are held accountable to the law. This will require institutional change, cultural change, and legislative change, and it will not be easy. We are making those changes.

This morning the Inter-Fraternity Council announced that all University fraternities have voluntarily suspended social activities this weekend. This is an important first step, but our challenges will extend beyond this weekend. Beginning immediately, I am suspending all fraternal organizations and associated social activities until January 9th, ahead of the beginning of our spring semester. In the intervening period we will assemble groups of students, faculty, alumni, and other concerned parties to discuss our next steps in preventing sexual assault and sexual violence on Grounds. On Tuesday, the Board of Visitors will meet to discuss the University’s policies and procedures regarding sexual assault as well as the specific, recent allegations.

In the words of one student who wrote to me this week, “Policy is needed, but people make change.” We need the collective strength of the members of our community to ensure that we have the best policies. So as you prepare for what I hope is a restful Thanksgiving holiday, I hope that you will take time to review and respond to the recently posted Student Sexual Misconduct Policy, which is currently open for public comment. You may find that policy at this link. Providing candid feedback to this policy is a practical step that you can take to help and I hope that you will.

To our fourth-year students: as you prepare to celebrate your last home football game today, I hope that you will embrace your role as leaders and demonstrate a renewed sense of responsibility to our community, and a renewed commitment to make that community better. It starts today.

Finally, I want to express my grief at hearing the news of the death of second-year student Peter D’Agostino, whose passing adds overwhelming emotion to what has been a difficult semester for all of us.

We are united in our compassion, resolve, and determination: Compassion for survivors of assault; resolve to make our community better; determination to begin to solve this problem here and now. I hope that you will join me.

Teresa A. Sullivan


Nov 232014

Campus Rapes and Kangaroo Courts

Megan McArdle
November 21, 2014

I was disturbed by something that one of Andrew Sullivan’s commenters wrote to him about the increasing trend toward using campus disciplinary systems as a substitute for rape trials.

“Due process” does not mean “maximal procedural protections in every case.” Rather, it means that a party to a dispute should receive the procedural protection (“process”) that is “due” given the circumstances.

Civil defendants, for example, do not have the same trial rights as criminal defendants, because if she loses, the civil defendant won’t be going to jail. To borrow a term from my favorite law professor, “due process” is an “error deflection” principle. The law understands that mistakes happen. Procedural safeguards work by “deflecting” the risk of those mistakes away from the protected party.

When you talk about campus rape, then, you need to remember the stakes, and assess the due process problem accordingly. In a college disciplinary proceeding, does the accused student risk being thrown in jail? Fined? His criminal history broadcast to the world through a public trial?

No, no, and no. He’s just going to be expelled from college, to re-enroll somewhere else. His risk of error is low, relative to a criminal case. By comparison, the risk of error borne by the accuser is about the same relative to a criminal case, if not higher. Following acquittal, the victim can’t avoid a wrongly-acquitted rapist. She must go to class with him, socialize with him, and live (in most cases) within a mile of him. She’s trapped, basically. With her rapist. In her home.

When campus reformers talk about making it easier to expel accused rapists, they’re not arguing against due process. They’re just emphasizing the “due” part over the “process” part. And with good reason.

Now, this is just one reader of a popular blog. But I’ve heard some version of this argument over and over in discussing campus rape prosecutions: “not a big deal, because this is not the government depriving you of your liberty, it’s just a help for victims to get away from their rapists, and nothing really bad happens to the boys.

In the first place, the government is pushing for these relaxed standards of evidence and due process, via Title IX, which means that this is the government doing something to you. Not putting you in prison, to be sure. But — and I hardly believe I have to say this — getting expelled on a sexual assault charge is, in fact, something very bad happening to you. I don’t know why people keep saying that this is “all” that happens, as if it were the educational equivalent of having to change hotels mid-vacation.

Read BuzzFeed’s account of what happened to men who went through these college disciplinary processes to see just how big this can be. One man lost his job after an anonymous caller notified them of his “convictions” — which were for “non-consensual kissing.” It can go on your permanent record, making it hard to get into grad school — you might possibly recover from a youthful bad grades, or plagiarism, but our society doesn’t offer much rehabilitation for sex offenders. You’ll probably lose credits, and for those attending selective schools, it seems likely to me that a man with such a notation on his record would have a hard time enrolling in another elite school.

When people say this is “no big deal,” how many of them would shrug off having this happen to them, on the basis of a hearing where the odds are stacked in favor of believing the accuser, and double standards are often rigorously applied? Which is to say: when two people who are equally drunk have sex, the girl can be presumed to be unable to consent—while the boy is held to be fully capable of determining her level of intoxication, and of making the informed decision not to have sex with someone too much the worse for wine. And this in the name of promoting equality between the genders.

I’m not belittling the crime of rape, or how traumatic and awful it is for the women it happens to. Rape is a terrible thing, which is why we try it in courts, and lock rapists away for a good long time. It’s also why we treat rapists like they are terrible people who may be admitted to normal society only after convincing repentance and rehabilitation.

That’s precisely why it’s problematic that we’re adjudicating these charges through such a weak process. Expelling someone for rape creates an official record that brands them, in the eyes of society, as a rapist. We should do that only after careful examination, giving the accused every chance to tell his side. Not because we are making light of rape, but because we are treating these terrible events, and the punishment we mete out, with all the seriousness they deserve.


Nov 222014

Three Questions about the Legality of the Obama Administration’s Anti-Sexual Assault on Campus Policies

David Bernstein
November 17, 2014

Kudos to Yale law professor Jed Rubenfeld for a thoughtful piece in the New York Times explaining why the Obama Administration’s decision to force campus kangaroo court disciplinary tribunals to go full marsupial with regard to sexual assault allegations is a bad approach to reducing sexual assault. Special kudos for Rubenfeld for writing this even though writing on this particular topic in such a prominent venue will inevitably bring out (and has inevitably has brought out) the smear brigade.

I agree with around 90% of what Rubenfeld writes, and I encourage folks to read the whole piece. Curiously for a law professor, though, he mostly leaves out the question of whether the relevant rules are lawful. Here are three questions suggesting they may not be.

(1) the Department of Education’s Office of Civil Rights created new nationwide standards for adjudicating claims of sexual assault by a combination of a 2011 “Dear Colleague” letter and a 2014 “Questions and Answers” publication. Can OCR in effect promulgate draconian new and very specific rules regarding how to deal with sexual assault on campus (on pain of universities losing all federal funding) without going through the notice and comment process?

(2) In Davis v. Monroe county Bd. of Ed., 526 U.S. 629 (1999) the Supreme Court held that the only relevant obligation school administrators have with regard to sexual harassment is to not show deliberate indifference, and to “merely respond to known peer harassment in a manner that is not clearly unreasonable.” The same or similar standard should logically apply to peer sexual assaults, which the OCR also polices as sex discrimination under Title IX. If so, OCR is implicitly arguing that before it stepped in, almost every university in the United States was dealing with claims of sexual assault in a clearly unreasonable manner. Can that be right?

(3) OCR totally forbids university disciplinary panels from considering an accusing student’s sexual history with anyone other than the accused (see F7 of the questions and answers). Not a single jurisdiction in the United States has such a draconian a “rape shield” rule, and for good reason–a blanket exclusion of such evidence that applies even in the (unusual) cases that such evidence is highly relevant violates the accused’s due process rights. Is there some reason that forcing universities to apply this rule doesn’t violate students’ due process rights?


Nov 212014

Misreading the Cry of Rape

Suzanne Fields
November 19, 2014

If Aesop were here he might rewrite his famous fable, replacing the boy who cried “wolf!” with the girl who cried “rape!” The cry of “rape” is used so carelessly that it’s often impossible to get to the truth of an accusation. When rape was a capital offense it was a rare and vicious crime which required a court of law to apply justice. It was underreported, since the rapist usually took advantage of those who felt too vulnerable even to say anything about it.

Contemporary accusations of rape are frequent, often made by women at prestigious colleges whose accusations are often perceived as ambiguous at best. The suspects are tried and convicted in the social media where reputations are ruined on the hearsay of “he said, she said.” Such accusations, on campus as elsewhere, are often factually challenged and convictions in the court of public opinion can be based on emotions, sometimes articulated long after the event. Did Bill Cosby, for example, rape that company of accusers 30 years ago? We’ll likely never know.

Emma Sulkowicz is known as the “mattress girl” at Columbia University, enjoying her 15 minutes of fame as the poster girl of the campus “rape culture,” celebrated in a story in New York magazine, where she is shown carrying what she calls “the scene of the crime” on her back.

Her accusation is simple and graphic. She accuses the man with whom she was having a session of consensual sex of taking anal liberties without permission. She says she said “No” and tried to fight him off with leg action. He persisted. He argues that Emma is a fencer whose legs were strong enough to obstruct him if she wanted. He’s a lightweight rower. Macho man, this “rapist” is not.

The university adjudicators who heard the case exonerated him. Enraged by the verdict, Emma took up her mattress for what she calls her “performance art,” carrying it everywhere. This turns sexual relations into Theater of the Absurd, in a new version of the old Broadway musical, “Once Upon a Mattress.” Rape, and even the accusation of it, should not be so trivialized.

Hillary Rodham Clinton, who knows up close and personal how sexual accusations can hurt a man, and who further recognizes a good feminist issue when she sees one, says the girl and the mattress create an image that “should haunt all of us.”

But “haunt” isn’t what that image does. Unless you were a fly on the wall when this sexual episode occurred, you have no way to know what really happened. For feminists who have moved beyond victim to activist and insist on trying men with public humiliation, this is rape as farce.

Most of the rape charges on campus are accusations by women who concede they had had too much to drink, and didn’t show good judgment in choosing men to “hook-up” with. They’re at best extremely careless in conducting themselves, or protecting their bodies.

This doesn’t excuse men from bad behavior. Many of them are missing sexual signals. If a man actually acts like a brute — and the woman can prove it — he should be tried like a brute. But campus hearings can’t impose justice for serious crimes, which rape certainly is, and justice must be sought in the world beyond the ivy towers of academic speculation or performance art as punishment.

Suzanne Goldberg, the new head liaison on sexual assault at Columbia, is a law professor who was co-counsel in the law suit on which the Supreme Court threw out the law criminalizing sodomy in Texas. She’s not naive about human behavior. She cites a poster depicting a traffic light hanging in an undergraduate dorm. Red means stop, whether drunk, passed out or simply disinclined. Yellow offers a pause to think. Green, if sex is mutual, means “go for it.”

Alas, human emotions can’t be regulated like traffic. Young men and women, pushed by a hurricane of hormones, living away from comfortable, protective homes for the first time, haven’t learned how to curb their enthusiasms. They’re driving a powerful machine with a learner’s license.

Sexual relationships got off track when “gender” replaced “sex,” and biological differences were dismissed as considerations to guide behavior. If sexual difference is attributed more to culture than biology, sexual communication loses its best behavioral clues for what to expect.

Colleges further make problems when they establish arbitrary academic juries untrained in the law and rules of evidence to listen to aggrieved students and mediate their sexual behavior with one another. Performance art may act as a form of punishment that embarrasses and humiliates, but it doesn’t teach responsibility or obtain justice when someone cries rape.


Nov 212014

Campus Rape Culture: Another Issue on Which the Obama Administration May Be Failing to Get Its Point Across

Charlotte Hays
November 18, 2014

Campus sexual assault may be the latest issue on which the Obama administration is failing to get across its perspective.

Based on the dubious statistic that one in five women on campus is a victim of sexual assault, the Obama administration has promoted the idea that there is a “rape culture” on campus.

We regard any allegation of rape on campus as a serious matter that must be thoroughly investigated and, if proven, punished to the full extent of the law. But the administration has positioned itself as the supposed protector of women and asked campus authorities to adjudicate these charges using a “preponderance of evidence” formula that erodes the accused person’s right to a defense.

We’d say that the police and law enforcement and the courts are better able to handle these allegations. Based on a new poll by YouGov/Huffington Post we may be closer to the general public than the Obama administration.

Asked who can be trusted to handle sexual assault accusations, 37 percent of respondents said the police and law enforcement, while only 17 percent said the campus authorities. The big winner on this particular questions was nonprofits that counsel people who claim they have been sexually assaulted—51 percent of respondents trust such organizations.

Greta van Susteren’s Gretawire nline polls are hardly scientific. But the results of one on the issue of campus sexual assault are nonetheless interesting. Police should handle these allegations, according to 94.34 percent (2, 815) respondents, while the college authorities should first review the accusations according to only 5.66 (169) respondents.

Stop Abusive and Violent Environments, an activist group, commissioned a telephone poll on Affirmative Consent. Affirmative consent dictates that consent must be ongoing and clear throughout the sexual encounter.

Survey takers were asked whether the government should have the “authority to determine how partners give their consent to sex.” An overwhelming majority—85 percent—answered “No.”

“The message comes through loud and clear — Americans place little faith in the ability of campus disciplinary committees to handle complicated sex assault cases,” said SAVE spokesperson Sheryle Hutter. “We need to reform the current system which is shortchanging both victims and the accused.”
Sexual accusations are difficult and painful to investigate and explore. But the Obama administration guidelines try to simplify the process by presuming guilt and stacking the deck against the accused. This is tempting when an ugly crime like rape is alleged, but we must resist the temptation to convict without due process and to hand these cases over to college tribunals that may be susceptible to the wishes of the federal government rather than the ideals of justice.

It does seem that the Obama administration is failing to make its point that justice must be subverted. The “rape culture” was a talking point for the administration in its promotion of the “war on women,” which the public seems to be no longer buying so unquestioningly.


Nov 212014

To Harvard and Other Universities: In Protecting Students From Sexual Assault, Don’t Disregard Due Process

Michael Shammas
November 20, 2014

In 1603, Sir Walter Raleigh was convicted of treason in a sham of a trial. Raleigh had no knowledge of the charges’ substance until the morning of the tribunal, when he learned he was accused, on hearsay alone, of plotting to enthrone Lady Arabella Stuart. Years later, as a partial result of his conviction, resigned to the great injustice done to both his body and his name by the tribunal of 1603, Raleigh placed his head on the block, refused a blindfold and — after the reluctant headsman delayed — implored, “Strike man, strike!” How did this murder disguised as justice occur? The answer is simple: an inexcusable absence of due process.

I include this (admittedly drastic) example because outrage at the great injustice done to Raleigh in this witch hunt called a “trial,” in this persecution disguised as prosecution, contributed to the development of numerous facets of what we today call due process. A recognition of the protracted period it took for such crucial and hard-won protections to develop is, partly, what led 28 Harvard Law professors to criticize Harvard’s new sexual assault policy for lacking “the most basic elements of fairness and due process.”

In response to the professors’ article, a coalition of my fellow Harvard Law students signed a well-argued petition in support of the new policy titled “Going to Harvard is a Privilege, but Safety is a Right.” Yet the chief flaw in their reasoning is encapsulated in the petition’s title: Although safety is a right, so is due process.

It is right to be outraged about the despicable treatment of sexual assault survivors by our justice system and our universities. Too many rapists and harassers habitually escape punishment; too many survivors are still awaiting justice. But although for centuries sexual assault survivors have been treated unfairly, so, too, have those accused of infractions. In trying to protect the former group, we should not sacrifice the latter. We should not support illiberal policies that bear far too much risk of producing the sorts of one-sided trials that condemned Sir Walter Raleigh to imprisonment and eventual death. There is a balance to be struck, a balance that can recognize the unique challenges surrounding sexual assault while nonetheless preserving important procedural safeguards.

Yes, Harvard’s previous sexual assault policy was utterly inadequate to protect survivors of sexual misconduct — as are far too many policies still in place at other American universities. But the new policy goes dangerously far in another direction, and the 28 law professors were right to call their university out. For a school of Harvard’s caliber to use such a one-sided mechanism to deal with students accused of misconduct is wrong; for a law school to use such a mechanism is absolutely inexcusable.

Before the development of “due process,” too many trials in the Western world were trials only in name. Likewise, Harvard’s new sexual harassment procedures are weighted against the accused so much that while there is a “preponderance of the evidence” standard in theory, in reality the accused may be “guilty until proven innocent.” To list only a few problems:

(1) Because competent representation is not provided, indigent students may have to battle suspension or even expulsion without adequate representation, while wealthy students can avail themselves of the best representation their parents’ money can buy.

(2) The preponderance of the evidence standard is too low given the consequences. Less serious infractions at Harvard, such as academic fraud, merit a “clear and convincing” evidence standard. Why doesn’t an infraction as serious as sexual assault merit a higher standard? As Professor Elizabeth Bartholet points out, for law students specifically the consequences are nothing less than “the risk of being wrongfully found guilty of sexual misconduct, and the related risk of destruction of any future legal career.” That said, the low standard of evidence wouldn’t be problematic were it not for what follows…

(3) Like Sir Walter Raleigh during his “trial,” the accused has precious little time to respond to an accusation. In fact, “the Respondent shall have [only] one week in which to submit a written statement in response to the allegations.” Moreover, in confronting accusations of such a high caliber, accusations with the potential to quite thoroughly ruin his or her life, the Respondent is not entitled to submit a statement authored by anyone else — even an attorney.

(4) As the 28 professors wrote, there is a troubling lack of opportunity to discover allegations until relatively late in the investigative process. How is one expected to prepare a proper defense without thorough and early access to charges?

(5) Finally, the lodging of investigation, fact-finding, prosecution, and appellate review functions in a single office, the Title IX compliance office, is unfair on its face. How can any organization truly review its own decision? Imagine if a court were given appellate review over itself.

Needless to say, this is not how modern societies should conduct trials — even “administrative” ones at universities. For far too long, survivors of sexual assault in the Western world have experienced horrific injustice; but the same can be said for those in the past who, like Sir Walter Raleigh, were accused of crimes and other infractions. Again, in protecting the former group, we should not forget the substantive injustice perpetuated throughout history against the latter, before due process became a fundamental right. That we are talking about sexual assault in a university context makes little difference; as Professor Bartholet and others point out, the consequences of a guilty adjudication can nonetheless be drastic.

In the wake of the law professors’ article, some fellow law students I have discussed this issue with have made the ridiculous assertion that the professors don’t support survivors of sexual assault. This oversimplifies things. Indeed, there is a great discrepancy in the reasoning of those who imply that providing procedural safeguards to the accused somehow means that one does not support survivors of sexual assault. Serving justice to survivors of sexual assault does not necessitate such a high risk of serving injustice to falsely accused men and women. As the Duke lacrosse fiasco revealed, there are, very rarely, fabricated allegations of sexual assault. Before stigmatizing students for their entire lives with such a horrific accusation, shouldn’t we be as certain as possible that they are indeed deserving of that stigma? Frankly, giving less due process protections to students accused of sexual assault than we give to students accused of cheating on a quiz makes little sense. Consider what happened to Patrick Witt, a fellow Harvard Law student, after he was falsely accused of sexually assaulting his ex-girlfriend.

One can condemn rapists and harassers and vindicate the rights of survivors without sacrificing due process. The balance between too little due process and too much due process is not an easy one to discern; but it is one that Harvard Law professors, some of the keenest legal minds on this planet, have been trained to find. Harvard should grant their opinions great weight when creating a Title IX-compliant sexual assault policy. Universities should recognize that creating a just policy requires striking a balance between procedural safeguards on the one hand and practical considerations surrounding the unique nature of sexual assault infractions on the other.


Nov 202014

E-Lert: Don’t Let Taylor Swift Shake It Off


Taylor Swift is not just a celebrity, but one who actively takes on the responsibility of role model for young adults.

Which is why it’s shocking that in her latest music video, she’s shown handling a breakup by punching her boyfriend and destroying his property. See the ‘Blank Space’ video: While teenagers are going to have breakups, we don’t want them thinking that this is anything close to acceptable behavior.

Taylor Swift shouldn’t abuse her spotlight by showcasing abuse. Her video is a sharp departure from her usual positive messages, which actually why, out of all celebrities, it is the most damaging to our efforts to see someone like Swift condone it. Domestic violence is real, and in some respects worse for males when they often have difficulty being taken seriously by the criminal justice system.

Please join us with calling on Taylor Swift to remove the “Blank Space” music video and donate the profits made to an organization that stops domestic violence for all victims.

Tell Big Machine Records, Swift’s record company, to pull the video:

Additionally, please take a second to sign our petition, which is already at over 300 signatures:

Don’t let Taylor Swift shake off her endorsement of domestic violence.

Truly yours,

Gina Lauterio, Program Director
Stop Abusive and Violent Environments

PS. Please help us grow our efforts. And share this e-lert with a friend.