Author: Edward Bartlett

Tulane U: COVID-19 sidelines sexual misconduct procedures

Post author By Edward Bartlett
Post date April 16, 2021

Tulane U: COVID-19 sidelines sexual misconduct procedures

Lily Mae Lazarus and Sala Thanassi
April 15, 2021

It is no secret that Tulane Univerity has a systemic sexual violence problem. According to the 2017 Climate Survey, 77% of all student survey respondents report being victims of sexual assault and 71.4% report being subjected to unwanted sexual contact. 75.6% of these perpetrators were Tulane students and 51.8% of the reported instances occurred on campus. This year is no different as “The pandemic did not end sexual violence—or sexual harassment or sexual discrimination—on this campus,” Meredith Smith, Tulane University sexual misconduct response/Title IX coordinator, said. According to the breakdown of student disclosures in the fall of 2020, disclosure rates of sexual misconduct exceeded those from fall 2019 until students were sent home due to COVID-19. These numbers paint a harrowing picture of the failure of Tulane’s conduct system and the inescapable reality of sexual misconduct for students, unchanged since the Climate Survey’s publication and, if anything, overshadowed by COVID-19.

To best understand the priority imbalance between COVID-19 conduct violations and those related to Title IX, an overview of the external legal factors is required. In May of 2020, Title IX statutes around the U.S. changed dramatically. The new regulations redefined what constitutes sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Further, the new Title IX issues important changes to the trial process: an individual accused of sexual misconduct has the right to cross-exam their accuser, and universities have the option to use a more difficult standard of proof by requiring “clear and convincing” evidence.

The majority of sexual misconduct reports at Tulane are outside of these newly defined parameters, but the university pledged to treat all sexual misconduct that was previously a violation of Title IX as eligible for an administrative procedure. Tulane also does not opt to use a stricter standard of proof in formal administrative hearings. Instead, to be found in violation of the Tulane University Code of Student Conduct, there must be a preponderance of evidence, or, in layman’s terms, that it is more likely than not a violation occurred.

Regardless of changing statutes, the sexual misconduct epidemic at Tulane has not disappeared and was rather pushed into the shadows and out of the mind of the administration. Since Tulanians’ return to campus this fall, the university has promptly investigated and prosecuted violators of the university’s COVID-19 guidelines. From expulsions, suspensions, fines and administrative threats, Tulane spares no expense regarding the consequences of public health rule flouting.

When it comes to COVID-19 related offenses, a picture of maskless students standing in a group, sent to the conduct office anonymously without context, is taken at face value and serves as sufficient grounds for swift administrative action. In instances of Title IX violations, all parties are subject to an inefficient and traumatizing investigation and trial that, if anything, dissuades future victims from coming forward and allows perpetrators to remain unscathed. The discrepancy in investigation times illustrate a startling reality in which formal conduct investigations, despite being labeled as equally pressing, are not treated with equal importance.

The lack of administrative ferocity surrounding instances of sexual misconduct prior to COVID-19 demonstrates a pattern. According to the Climate Survey, 84% of both male and female respondents claimed Tulane did or would actively support them with formal or informal resources if they reported sexual misconduct. Despite this figure, in 2017, there were only 205 reported cases at Tulane of sexual misconduct and, of that group, only 16 had disciplinary proceedings, and only 8 resulted in disciplinary action. This trend still exists, and few reports of sexual misconduct proceed to formal conduct hearings. Although the Office of University Sexual Misconduct Response and Title IX Administration supports victims to the best of their abilities, the formal conduct system fails them at their weakest hour. This is unacceptable.

This conundrum is not unique to Tulane. In September 2020, New York University’s newspaper published an article regarding the deprioritization of Title IX during COVID-19. Similar to circumstances at Tulane, NYU suspended multiple students for violating COVID-19 guidelines and sent numerous reminders to students surrounding the administration’s willingness to act immediately and aggressively against those flouting the rules. Yet, according to NYU student Nicole Chiarella, NYU’s administration addresses Title IX with a startling nonchalance amidst a pandemic. “NYU’s continual passivity showcases how without a financial incentive — such as the one provided by reopening campus amid a pandemic — sexual assault will remain as a mere administrative afterthought, subsequently harming survivors … Its persistent disregard for survivors of sexual assault fosters a toxic campus environment that safeguards the accused and ostracizes the very students NYU claims to protect,” Chiarella said.

At Tulane, students’ email inboxes are constantly filled with reminders from the Office of the Vice President of Student Affairs to be respectful citizens and practice proper COVID-19 protocols, yet the administration remains silent on issues of rape, harassment and nonconsensual sexual behavior. How can a university aggressively combat systemic sexual misconduct when victims and non-victims alike lack procedural transparency, a constant influx of information and a feeling of safety when disclosing their experiences? The simple answer is they cannot.

The American Civil Liberties Union estimates that 95% of campus rapes in the U.S. go unreported. One of the primary reasons students do not come forward is a fear that their institution will not believe them . Although, in theory, Tulane mitigates this difficulty by not adopting scrutinous standards of proof, submitting sexual violence victims to lengthy investigation processes, not applied with the same intensity to COVID-19 related offenses, places an undue burden on procedures claiming to be of equal conditions.

The Code of Student Conduct, in addressing Title IX procedures, promises the university will “promptly and equitably respond to all reports of discrimination and harassment in order to eliminate prohibited conduct, prevent its recurrence, and address its effects on an individual or the community.” Similarly, the Office of Student Conduct, tasked with investigating Title IX and all other conduct violations, claims that the university attempts to conclude their investigations within 60 days of an issuance of the notice of investigation, barring special circumstances. With Tulane hyperfocused on tracking down those guilty of crimes against the COVID-19 guidelines, perpetrators of sexual violence have the luxury of time and administrative apathy, as the conduct system pushes all non-pandemic related issues to the side.

Delays in Title IX cases during the COVID-19 pandemic have numerous adverse effects on survivors. Accused perpetrators are able to use a public health crisis to further restrict victims’ rights access to an education or in some cases to see justice served. Prior to the May 2020 Title IX changes, Title IX complaints were required to be handled in a timely manner. Although Tulane promises this, including provisions for special circumstances allows the conduct system to revise the timeline of Title IX cases at their own discretion.

It is illogical to assume the administration was unaware of the possible COVID-19 delays in sexual misconduct procedures. Tulane had ample time to create an action plan, but the administration chose not to prioritize this pervasive issue. Various organizations published information directed at academic institutions upon the onset of the pandemic, including that “for students who are survivors of sexual assault, navigating resources and reporting may be more challenging due to COVID-19,” The Rape, Abuse & Incest National Network, the nation’s largest anti-sexual violence organization, said. Equal Rights Advocates, in an article counseling schools on how to navigate Title IX hearings during the pandemic, urged universities to move forward with investigations and hearing without unreasonable delays because students have a fundamental right to “a prompt and equitable resolution of sexual misconduct claims.” Further, the article explains that delays in these procedures force survivors to remain traumatized and uncertain, preventing them from finding closure and potentially leading to institutional betrayal.

Rates of sexual misconduct at Tulane are substantially higher than the national average and the pervasiveness of Title IX violations on campus severely diminish students’ feeling of safety and community. That being said, if the Office of Student Conduct promises to “foster a safe and healthy community in which academic success can occur” how can they push Title IX issues to the side which effectively deny victims a right to their education? The administration has shown it can act swiftly to punish violators of COVID-19 guidelines, build temporary outdoor classrooms, and enforce mask and testing mandates. Yet, this enthusiasm disappears when it comes down to tackling the pre-existing and well-documented sexual misconduct problem on campus.

To address the administrative difficulties of addressing sexual misconduct, “Let’s start with admitting that the system is hard, even if it works perfectly, and so to dedicate ourselves to unpack each step and possibility in the investigation and adjudication and put as much care and support as we can into a system that is processing so much pain,” Smith said. Tulane cannot continue to treat cases of sexual misconduct with apprehensiveness and lanquidity; it must address these procedures with the same intensity and order as it does with violations of COVID-19 guidelines.

Source: https://tulanehullabaloo.com/56435/views/opinion-covid-19-sidelines-sexual-misconduct-procedures/

Domestic Violence Violence Against Women Act

Do We Really Want to Turn Every American into a ‘Victim’ of Domestic Violence?

Post author By Edward Bartlett
Post date April 14, 2021

Do We Really Want to Turn Every American into a ‘Victim’ of Domestic Violence?

‘When everything is domestic violence, nothing is.’

Coalition to End Domestic Violence

April 14, 2021

The House bill to reauthorize the Violence Against Women Act, HR 1620, features a sweeping expansion in the definition of domestic violence:

“(8) DOMESTIC VIOLENCE. – The term ‘domestic violence means a pattern of behavior involving the use or attempted use of physical, sexual, verbal, psychological, economic, or technological abuse, or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim.”

So ask yourself, Has your partner ever:

Given you the “silent treatment”? (Psychological abuse)
Called you a name like “stupid”? (Verbal abuse)
Chided you for over-spending the checking account? (Economic abuse)
Told you to do certain chores around the house, often referred to as a “honey-do” list? (Other coercive behavior)

This expansive definition would turn almost every American into a victim of “domestic violence.” And would define almost every American as a perpetrator of domestic violence, as well.

As University of Maryland law professor Leigh Goodmark warns, “I think actually the prosecutions of women would skyrocket.”

The Coalition to End Domestic Violence warns against the use of such a definition, which would dramatically dilute the services to victims of true violence, worsen the problem of false allegations, and create a basis for nearly endless demands for government services for such “victims.”

The Congressional Research Service has raised doubts about going in this direction, as well. These comments – see below — were focused on HR 1585, which was introduced in the previous session of Congress, and which proposed the same broad definition of domestic violence.

++++++++++++++++++++

DEFINING DOMESTIC VIOLENCE

Congressional Research Service

Lisa N. Sacco, Analyst in Illicit Drugs and Crime Policy

In 2018, the Office on Violence Against Women (OVW) changed the expansive domestic violence (DV) definition that appeared on its website to the more narrow statutory definition used for grant programs. There is some confusion as to the meaning and implication of OVW’s change. In the 116th Congress, legislation has been introduced that would amend the definition used in the Violence Against Women Act (VAWA) grant programs—the Violence Against Women Reauthorization Act of 2019 (H.R. 1585), if enacted, would amend and expand the definition of DV.

Federal Definitions of DV

The federal government defines DV in different ways and for different purposes. Under criminal statute, 18 U.S.C. §2261 defines a DV offender that falls under federal jurisdiction as:

[a] person who travels in interstate or foreign commerce or enters or leaves Indian country or is present within the special maritime and territorial jurisdiction of the United States with the intent to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner, and who, in the course of or as a result of such travel or presence, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner.

For VAWA grant purposes, VAWA states:

The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

OVW administers VAWA grants, and the DV definition on OVW’s website matches the definition Congress established for grants. OVW previously (April 2018 and earlier) posted a more expansive definition that described DV as a “pattern of behavior” and included both economic and emotional abuse. Of note, changes to the OVW website definition have no impact on VAWA grantees. In the 116th Congress, H.R. 1585, if enacted, would amend the statutory definition used for grant programs to resemble the more expansive definition previously published by OVW. This change would impact future VAWA grantees.

Expanded Definition for VAWA Grant Programs under H.R. 1585

H.R. 1585 would define DV as:

a pattern of behavior involving the use or attempted use of physical, sexual, verbal, emotional, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, by a person who—

(A) is a current or former spouse or dating partner of the victim, or other person similarly situated to a spouse of the victim under the family or domestic violence laws of the jurisdiction;

(B) is cohabitating with or has cohabitated with the victim as a spouse or dating partner, or other person similarly situated to a spouse of the victim under the family or domestic violence laws of the jurisdiction;

(D) is an adult family member of, or paid or nonpaid caregiver for, a victim aged 50 or older or an adult victim with disabilities; or

(E) commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction.

The bill would describe DV as a pattern of abusive behavior, and extend the current definition beyond crimes of violence to include verbal, emotional, economic, and technological abuse (the bill also defines the latter two forms of abuse).

Potential Implications of an Expanded Definition

A more expansive definition of DV would generally expand the number of individuals who are eligible for support from VAWA grantees. A broader definition captures harmful behavior (such as financial abuse) that is not physical in nature but is another form of abuse common in relationships involving domestic violence. Victim advocates support this more inclusive definition.

On the other hand, some argue that a violent act is qualitatively different from other forms of abuse such as economic abuse, and legal definitions should reflect that distinction. In United States v. Castleman, the U.S. Supreme Court held that a misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of the respondent’s child qualified as “a misdemeanor crime of domestic violence.” The opinion of the Court (delivered by Justice Sotomayor) included extensive discussion of defining and distinguishing between acts of physical force. The Court ruled that it must attribute “the common-law meaning of ‘force’ to [18 U.S.C.] §921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence’ as an offense that ‘has, as an element, the use or attempted use of physical force.'” In a concurring opinion, Justice Scalia argued that “[w]hen everything is domestic violence, nothing is.” He further argued that if a DV definition were to include all harmful domestic acts, Congress would “have to come up with a new word … to denote actual domestic violence.”

Further, defining DV as “a pattern of behavior” seemingly excludes isolated DV incidents that do not involve a pattern of behavior. So while the goal may be to be more inclusive, the proposed definition could exclude isolated incidents of domestic violence that do not meet the “pattern of behavior” standard.

Congress may choose to expand the definition of DV for VAWA grants or maintain the current definition. Alternatively, it could separately define terms such as “economic abuse” and “technological abuse” and add them to the eligibility criteria for grant programs. The addition of these terms to grant programs’ purpose areas would achieve some advocates’ desired goal of expanding VAWA support for more victims, not solely those of violent physical acts.

Source: https://crsreports.congress.gov/product/pdf/IN/IN11085#:~:text=The%20term%20%E2%80%9Cdomestic%20violence%E2%80%9D%20includes,spouse%20or%20intimate%20partner%2C%20by

Due Process False Allegations

Lt. Gov. Justin Fairfax Joins Other Lawmakers in Calling for Due Process

Post author By Edward Bartlett
Post date April 10, 2021

Lt. Gov. Justin Fairfax Joins Other Lawmakers in Calling for Due Process

SAVE

April 14, 2021

During an April 7 debate at Virginia State University, Lt. Gov. Justin Fairfax made a strongly worded plea for the restoration of due process and the presumption of innocence. Fairfax joins a growing number of lawmakers, newspaper editorial boards, and others who have recently called for due process in American society.

During the debate, Fairfax stated, “In Virginia and in our nation, African-Americans, and particularly African-American men, are presumed to be guilty, are treated inhumanely, are given no due process, and have their lives impacted — and in some cases taken away.” https://www.youtube.com/watch?v=yVAsQwTyWws

Fairfax highlighted a false allegation that was leveled against him in 2019, for which some persons “immediately assumed my guilt.” Fairfax concluded, “I have a son and daughter. I don’t want my daughter to be assaulted, I don’t want my son to be falsely accused. But this is the real world that we live in.”

Fairfax joins with leaders from both political parties and two newspaper editorial boards who have recently called for the restoration of due process.

On March 23, Sen. Richard Burr of North Carolina and Rep. Virginia Foxx of North Carolina sent a letter calling on the U.S. Department of Education to maintain the recently enacted Title IX rule to “ensure victims receive the protections they deserve and every student’s rights, including due process rights, are protected.” https://republicans-edlabor.house.gov/uploadedfiles/burr_and_foxx_to_cardona_title_ix_3.23.21.pdf

Two days later, former Democratic presidential candidate Michael Bloomberg penned an editorial highlighting how the Obama-era campus policy had shortchanged defendants by failing to “uphold due process.” Bloomberg also noted that “Alleged victims said that schools failed to investigate their claims professionally.” https://www.bloomberg.com/opinion/articles/2021-03-25/title-ix-biden-should-bring-better-justice-to-u-s-universities

On March 22, the Editorial Board of the Los Angeles Times criticized the Obama-era policy, which “ignored common traditions of due process for the accused,” causing colleges to swing too hard in favoring accusers. https://news.yahoo.com/editorial-betsy-devoss-campus-sex-100019802.html

Then on March 28, the Washington Post Editorial Board weighed in. The editorial highlighted the due process deficiencies with the Dear Colleague Letter, which gave rise to numerous “successful court challenges.” https://www.washingtonpost.com/opinions/biden-has-a-chance-to-restore-balance-to-the-rules-on-campus-sexual-assault/2021/03/28/cc4416fc-8767-11eb-8a8b-5cf82c3dffe4_story.html

A public opinion poll by the Center for Prosecutor Integrity revealed many American are questioning the fidelity of our legal system to basic due process principles: http://www.prosecutorintegrity.org/survey-summary/

Three-quarters of respondents — 74.8% — worry our legal system often does not respect “equal treatment under the law”
Two-thirds of persons — 66.8% — think the presumption of innocence is becoming lost in our nation’s legal system

SAVE invites lawmakers, newspaper editorial boards, and others to issue statements supportive of due process and the presumption of innocence.

Sexual Assault

PR: CDC Says Men Are Half of All Victims of Sexual Violence.

Post author By Edward Bartlett
Post date April 5, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

CDC Says Men Are Half of All Victims of Sexual Violence. The Biden Sexual Assault Proclamation Omits That Fact.

WASHINGTON / April 5, 2021 – Last week, President Joe Biden issued a Proclamation on National Sexual Assault Prevention and Awareness Month. The proclamation emphasizes, “According to the National Intimate Partner and Sexual Violence Survey, done by the CDC, one in five women has been a victim of a completed or attempted rape at some point in her lifetime.” (1)

But according to the CDC, “Male victimization is [also] a significant public health problem,” with nearly one in four men experiencing some form of contact sexual violence in their lifetimes (2).

The National Intimate Partner and Sexual Violence Survey reports that nearly identical numbers of men and women experience sexual violence. Each year, 1.92 million men are made to sexually penetrate, and 1.93 million women are victims of rape (3). In 82.6% of the “made to penetrate” cases, the perpetrator was a female (4).

A second study of 13,000 school children reported that three-quarters of boys who reported being sexually victimized said the person who violated them was another child. In a little more than half those assaults, the violator was a girl. Most boys who had been assaulted never told an adult (5).

A third study published by the American Psychological Association found that 43% of high school boys and young college men reported they had an unwanted sexual experience. In 95% of these cases, a female acquaintance was the aggressor (6).

UCLA researchers Lara Stemple and Ilan Meyer explain the word “rape” suggests the forcible genital penetration of women, which downplays the existence of sexual victimization of men. For this reason, it is necessary to use the term, “made to penetrate” in assessing levels of male victimization, Stemple and Meyer explain (7).

Earlier this year the Washington Post Magazine featured an article titled, “Sexual Assault Against Boys is a Crisis.” Author Emma Brown emphasized, “When we fail to recognize and address violence against boys, not only are we failing to protect boys, but we also may be stoking violence against women.” At the end of the article, Brown made a poignant admission: “Deep down, somewhere under my skin, I was holding on to some seriously wrongheaded assumptions — ideas so ingrained I did not even notice them, ideas that rendered boys as something less than human.” (8)

For reasons unknown, the Biden Sexual Assault Statement omits mention of sexual violence against men, even though this is one of the most important findings of the CDC survey. Persons should express their concerns to their elected officials at (202) 224-3121. Or make a comment directly to the White House: https://www.whitehouse.gov/contact/

Links:

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/31/a-proclamation-on-national-sexual-assault-prevention-and-awareness-month-2021/
https://www.cdc.gov/violenceprevention/intimatepartnerviolence/men-ipvsvandstalking.html
https://www.cdc.gov/mmwr/pdf/ss/ss6308.pdf Table 1, 12-Month section. Because of memory decay and selective recall, 12-Month numbers are more reliable than Lifetime numbers.
https://www.cdc.gov/mmwr/pdf/ss/ss6308.pdf Page 6.
http://unh.edu/ccrc/pdf/CV365-Gewirtz-Meydan%20and%20Finkelhor%202019.pdf
https://www.apa.org/news/press/releases/2014/03/coerced-sex
https://ajph.aphapublications.org/doi/10.2105/AJPH.2014.301946
https://www.washingtonpost.com/magazine/2021/02/22/why-we-dont-talk-about-sexual-violence-against-boys-why-we-should/

Campus Department of Education Sexual Assault Sexual Harassment Title IX

PR: Liberal Voices Call for Campus Due Process, Reject Return to Former DCL Policy

Post author By Edward Bartlett
Post date March 30, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Liberal Voices Call for Campus Due Process, Reject Return to Former DCL Policy

WASHINGTON / March 30, 2021 – On March 8, President Joe Biden issued an Executive Order instructing the Department of Education to consider back-tracking on campus due process protections (1). In response, numerous editorials have been published supportive of campus due process, rejecting the excesses of the 2011 Dear Colleague Letter (DCL) policy on sexual violence (2).

On March 22, the Editorial Board of the Los Angeles Times criticized the Obama-era policy, which “ignored common traditions of due process for the accused,” causing colleges to swing too hard in favoring accusers. The essay urged the Biden policy review to be “thoughtful rather than reactive.” (3)

Three days later, former Democratic presidential candidate Michael Bloomberg penned an editorial highlighting how the 2011 policy had shortchanged defendants by failing to “uphold due process.” Bloomberg also noted that “Alleged victims said that schools failed to investigate their claims professionally.” (4)

Then on March 28, the Washington Post Editorial Board weighed in. The editorial highlighted the due process deficiencies with the Dear Colleague Letter, which gave rise to numerous “successful court challenges.” The Editorial Board affirmed the usefulness of the Biden review, and warned, “there are some things worth saving in these educational rules – and so the administration should tread carefully.” (5)

In addition, the New York Times published a news article on March 8 on the Biden policy review and invited readers to express their opinions (6). A review of all reader comments posted on March 9 reveals the vast majority of NY Times’ readers, many of whom identify as liberal, are supportive of campus due process. This comment by “R.P.” in Bridgewater, NJ received the largest number of Recommends:

“This is one area where the Trump Administration was on the correct side of civil liberties and due process rights, and where the Biden Administration is retreating to interest-group politics. Do any of the people who want to go back to the ‘old days’ of no due process for the accused, have sons in college? Do they want them to be subject to these kangaroo courts where you have no right to question your accuser?” (7) [bolding in original]

Seven separate public opinion polls have been conducted in recent years, all documenting that a strong majority of Americans support due process on campus (8). The most recent poll, commissioned by SAVE, found strong bipartisan support for campus fairness (9):

“Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves.” Agree: Democrats: 80%, Republicans: 88%
“Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Agree: Democrats: 66%, Republicans: 75%
“Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.” Agree: Democrats: 71%, Republicans: 86%

SAVE urges college officials to continue to fully implement the new Title IX regulation, which upholds rights and protections for both complainants and the accused.

Links:

Campus Sexual Assault Sexual Harassment Title IX

PR: Liberals Call for Campus Due Process, Urge Biden Administration to ‘Tread Carefully’

Post author By Edward Bartlett
Post date March 29, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Liberals Call for Campus Due Process, Urge Biden Administration to ‘Tread Carefully’

WASHINGTON / March 29, 2021 – On March 8, President Joe Biden issued an Executive Order instructing the Department of Education to consider back-tracking on campus due process protections (1). In response, 21 editorials have been published to date supportive of campus due process, and urging caution by the Biden Administration (2).

The individuals and organizations writing these articles represent all points on the political spectrum. Many of the commentaries came from liberal sources.

On March 22, the Editorial Board of the Los Angeles Times criticized the Obama-era campus policy, which “ignored common traditions of due process for the accused,” causing colleges to swing too hard in favoring accusers. The essay urged the Biden policy review to be “thoughtful rather than reactive.” (3)

On March 25, former Democratic presidential candidate Michael Bloomberg penned an editorial highlighting how the Obama policy had shortchanged complainants by failing to “uphold due process.” Bloomberg also called for greater involvement of the police and the courts in campus sex cases (4).

Three days later the Washington Post Editorial Board weighed in. The editorial highlighted the due process deficiencies with the Obama-era policy, which gave rise to numerous “successful court challenges.” The Editorial Board affirmed the usefulness of the Biden review, and warned, “there are some things worth saving in these educational rules – and so the administration should tread carefully.” (5)

“Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves.” Agree: Democrats: 80%, Republicans: 88%
“Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Agree: Democrats: 66%, Republicans: 75%
“Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.” Agree: Democrats: 71%, Republicans: 86%

SAVE urges the Biden Administration to take a measured and thoughtful review of the historic Title IX regulation, which upholds rights and protections for both complainants and the accused.

Links:

Due Process Title IX

Title IX: A Professor’s Premonition Becomes a Disastrous Reality

Post author By Edward Bartlett
Post date March 26, 2021

Title IX: A Professor’s Premonition Becomes a Disastrous Reality

By Paul Falanga, MSN, RN

March 26, 2021

I am a recently retired faculty member at the Montefiore School of Nursing (MSON). I worked there for three years, and had an excellent work record and rapport with nursing students. Two months before my retirement in April 2019, I was accused of sexual harassment. After an eight-month nightmare, the criminal court adjudicated the case in my favor. Besides the economic hardships, the emotional toll affected my physical health. I still suffer from the trauma of the experience.

Here’s my story….

One afternoon I was instructed to attend a meeting with the Human Resource department. The HR representative officiously read the Title IX sexual harassment and assault clauses from the school catalog. But oddly, she provided no explanation why I had been called in. I could not imagine what this was all about

That evening, I taught my last class. The next day was informed via email to not return to campus or speak to any students or fellow faculty members

About a week later, I was asked to give a statement to security staff. I cooperated fully, despite still not having received a copy of the allegation or having any recollection of a harassment incident. Despite my good faith efforts to cooperate, I was not allowed to ask any direct questions, even to the Title IX investigator.

As the questions were asked, I was finally able to deduce that a 50-year-old female student alleged I had grabbed her breast while in a classroom with 19 other students present. As a married gay man, the accusation seemed highly implausible on the face of it.

Under the questionable pretext of protecting the student who filed the charge, I was then forbidden to contact the students who were potential witnesses on my behalf.

As the case unfolded, I became acutely aware that not even my counsel had the right to interview the many students who were present during the alleged incident. Nor was my personal representative allowed to ask questions to the accuser, even through a third party.

Approximately one week later, the Mt. Vernon (NY) police came to my home and asked me to accompany them to the police station to give a statement. There, I was finally given the redacted copy of the allegations. I was in shock.

I was then arrested on a sexual harassment misdemeanor charge and incarcerated. My bail was set at $2,500. I quickly hired a defense attorney. Now with a criminal record, I was dismissed from an additional adjunct teaching position that I held.

Eventually I was found innocent of the charges. I had the case sealed to clear my record for employment.

Afterwards, many students reached out to me expressing their sympathy and concern. I was told that the woman had bragged about the accusation and continued to slander me, even after the case was resolved.

In retrospect, it became apparent that the accusation had been made for purposes of financial gain, as the school provided a financial settlement for the student.

The negative impact caused by false allegations has had a direct effect on my physical and mental health. I feel personally violated as my personal integrity was also assaulted. This personal violation is still a burden to me.

MSON employs five full-time instructors with approximately 120 students. As faculty members, we had been briefed on Title IX procedures via a short seminar. I recalled thinking that if a complaint were to be filed, what a daunting task it would be for our small faculty, given our lack of legal expertise. We discussed among ourselves how we all thought it would be unfair to ask a faculty member to play the role of investigator, jury, and judge. We all concurred that our group lacked the necessary expertise.

In my case, that uneasy premonition became a disastrous reality. This is why President Biden should be working to strengthen campus due process, not remove it.

Campus Sexual Assault Sexual Harassment Title IX

Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems

Post author By Edward Bartlett
Post date March 17, 2021

Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems

By Jame Baresel

March 16, 2021

This past summer the State of New York and the City School District of New York filed a case for an injunction against revisions to Title IX regulations the Trump administration had implemented to assure due process for college students accused of sexual assault. The case was heard by United States District Judge John G. Koeltl, a member of the Democratic Party nominated to his office by former President Bill Clinton. Not only did the judge deny the injunction but he commended the revisions as having “the potential to benefit both complainants and respondents.”

Now, after less than two months in office, President Joe Biden has issued an executive order requiring a review of such reforms, as he had promised during his campaign and as over 100 Democratic members of Congress insisted in a letter to Secretary of Education Miguel Cardona. Either ignorantly or cynically, these politicians claim that the reforms are intended to “intimidate victims” or destroy protections for them.

In fact the Trump regulations do not even give students accused of sexual assault “the accused the same protections as a defendant in a criminal case.” They merely require “that colleges need to give notice of allegations; that accusers and accused have the right to an advocate and to appeal findings; that they have a right to a hearing on a reasonable timeline; and that witnesses can be cross-examined.”

And they were not much of an innovation, more a return to common sense accepted by both parties for decades until Obama era Democrats turned to an ideologically driven stacking of the procedural deck against the accused. Since then the ways in which Obama era rules violate due process and put false accused men at unjustified risk have received considerable attention. Other important factors have, however, frequently been overlooked.

First:

Title IX regulations largely provide guidance for legal and forensic amateurs. Only one out of 57 college and university staff members responsible for implementing Title IX has professional courtroom experience. Most come from academic fields whose members are likely to conduct investigations through ideological preconceptions or from administration. [https://www.nas.org/reports/dear-colleague] The latter can be inclined merely to switch their method of protecting their institutions’ reputations, from covering up sexual assault to demonstrating that they “believe women.” Such individuals need instructions on objectively obtaining and weighing evidence on both sides of a case.

Second:

Obama era regulations have been applied in a prejudiced manner. Hundreds of students judged guilty of sexual assault by university authorities have challenged the findings in court on due process grounds. Approximately half the court rulings have been in their favor, despite the burden of proof being on them (as plaintiffs). Given the difficulties of mounting legal challenges to universities’ judgments against accused students, the number of innocent students who have suffered due process violations is inevitably higher than the number who have mounted such challenges. Such challenges bog down the time and money of universities as well as that of students.

One study has actually found that most Title IX sexual assault cases result from “misunderstandings and mixed signals regarding consent and usually involve alcohol, regret, and fuzzy memories” but that “students are encouraged, in situations like this, to file discrimination complaints with the Title IX office, where ideological staff stand ready to railroad accused students.” Even if (for the sake of argument) objective investigators could be fair to accused students while acting under procedures dating from the Obama era, the ease with which they can be used as a cloak for prejudiced investigations would necessitate the Trump reforms.

Third:

Even when Obama era regulations were in force and highly publicized, the vast majority of college sexual assaults went unreported, while many students filed complaints with the federal Office of Civil Rights alleging university officials responded to accusations of sexual assault with indifference or negligence. This suggests that the Obama regulations did little to force apathetic university officials to action. And it is clear that the Obama regulations didn’t remove the reasons many women fail to report sexual assault, predictably given it is a matter of human attitudes rather than structures. Either the problem is with the attitudes of university officials (those who can’t be bothered to do their jobs) or those of victims (preferring passivity over fighting through the unpleasantness of reporting and proving a case).

The truth is that the Obama regulations do not just undermine due process, they undermine due process without accomplishing much in return. Even when they have not been inimical to justice they have been at best a superficial response to a complex problem, at worst a meaningless gesture. While they might have greatly increased the extent to which female students felt the government is trying to do something to keep them safe, their impact on actual safety was minimal.

Source: http://www.ifeminists.com/e107_plugins/content/content.php?content.1502

Campus Due Process False Allegations Title IX

North Carolina bill aims to protect college students accused of sexual assault

Post author By Edward Bartlett
Post date March 17, 2021

North Carolina bill aims to protect college students accused of sexual assault. Critics are wary.

By KATE MURPHY

THE NEWS & OBSERVER |

MAR 13, 2021

Some North Carolina state senators have introduced a bill that would expand the rights of college students accused of sexual misconduct in all 16 UNC System universities.

The new bill would set a higher burden of proof for universities to find students responsible for sexual assault. It would ensure that all students have the right to legal counsel throughout an investigation and disciplinary process, and it would allow the cross-examination of witnesses.

But critics say the proposed changes would be unfair to those who have been assaulted.

“The cards are always stacked against the victim,” said Catherine Johnson, director of the Guilford County Family Justice Center. Johnson works with campus Title IX coordinators and faculty who sit on student conduct boards.

When a student reports an assault on campus or through the criminal justice system, the process could take months or years, Johnson said. She added that creating ways to support those who report assault is critical, particularly on college campuses where women are at a high risk of sexual assault.

“Anytime we try to dilute that process, that creates more systemic barriers that survivors have to navigate,” Johnson said. “Certainly we want a fair and just process, but oftentimes survivors are carrying the heaviest burden.”

And she said there’s no other crime where the emphasis is on victims to prove it, like there is with sexual and domestic violence.

The proposed changes align with Trump administration rules that strengthened the rights of accused students in campus sexual assault cases. But President Joe Biden recently signed an executive order asking the U.S. Education Department to review those Title IX policies and potentially change how schools handle sexual misconduct.

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Impact on those who report assault and those accused

North Carolina’s Senate Bill 117 is sponsored by Republican lawmakers Rep. Joyce Krawiec, Rep. Deanna Ballard and Rep. Vickie Sawyer. If passed, the new policy would go into effect next fall.

In 2019, Rep. Mitchell Setzer, a Catawba County Republican, introduced a nearly identical bill that passed in the House, but never made it out of the Senate.

Krawiec said sexual assault and sexual harassment are serious issues, and this bill will give accused students the due process rights they are entitled to, just as if they were accused of a crime in the community.

“In this country, you’re innocent until proven guilty, but on our college campuses that’s not necessarily the case,” she said.

Krawiec said she and her colleagues have met with lawyers and parents of college students who say they’ve been falsely accused of sexual assault, suspended from a sports team, expelled and “virtually their lives were ruined.”

The prevalence of false allegations is between 2% and 10%, studies show.

“It just needs to be fair,” Krawiec said. “There needs to be an investigation, and we need to make certain that everybody is treated fairly and that everybody is heard.”

Laci Hill, a senior at UNC-Chapel Hill, is a senior adviser in student government work on policies related to campus sexual assault and accessibility issues.

She said some of those assaulted might not have physical evidence and don’t feel comfortable going to a hospital and getting a rape kit done the day they were assaulted. Schools requiring more proof or evidence could further deter students from reporting incidents of gender-based violence, she said.

“A lot of people don’t want to come forward because they are afraid of being blamed for what happened to them, people won’t believe them and it can be traumatic,” Hill said.

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How would Title IX policies change?

One of the biggest changes this bill would make at UNC System campuses is increasing the level of evidence permitted — and highly contested — under the Federal Title IX guidelines set by DeVos. Those guidelines went into effect in fall 2020.

UNC System schools currently use a “preponderance of evidence” standard in student disciplinary proceedings. That means that it is “more likely than not” that an accused student violated student conduct rules. This proposed law would increase that standard to “clear and convincing” evidence.

The UNC System now sets guidelines and a minimum standard for due process that schools must follow, but each individual university can set its own procedures. But if this bill passes, universities would be required to adopt these procedures, creating more uniformity across the system.

Some of these rules, including the right to an attorney and the cross-examination of witnesses, are already in place at UNC-CH, N.C. State and other universities.

The new policy would include the following rules:

Accused students are promptly notified of the details of the allegations and evidence.
Accused students are advised of their the right to consult legal counsel throughout the investigation and hearings and their right to appeal the decision.
Both sides can conduct questioning and cross-examination of witnesses, including accused students and complainants.
Universities ensure the disciplinary hearings are impartial — the individual conducting the investigation can’t also serve as a “finder of fact” in a subsequent hearing.
Provide complainant and accused students written copies of facts and conclusions of investigation and hearing
Raise the standard of proof of responsibility for proving sexual misconduct to clear and convincing evidence.

At disciplinary hearings, a complainant never has to come face-to-face with the accused individual and an accused individual is never allowed to personally ask questions of a complainant, according to federal Title IX guidelines.

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How prevalent is campus sexual assault?

About one-third of female UNC-CH undergraduate students say they’ve been sexually assaulted during college, according to a 2019 campus climate survey. By their senior year, nearly half of the young women reported being assaulted.

Between 2007 and 2019, the university reported more than 300 incidents of sexual misconduct under the CLERY ACT, a federal statue aimed at keeping campus crime statistics and policy transparent. More than half of those incidents were rape.

At UNC, 15 students have been found responsible and disciplined for sexual assault since 2007, according to university documents obtained through a lawsuit.

Between 2007 and May 2020, 25 N.C. State students were found responsible for sexual misconduct, university documents show. N.C. State reported 40 incidents of sexual misconduct in 2017, 32 in 2018 and 18 in 2019, according to its 2020 annual crime report.

Hill said the data shows that campus sexual assault is prevalent at UNC. In the four years that she’s been a student, the issue has become easier for students to talk about, particularly with the #MeToo movement.

But she said this bill has the “potential to further suppress voices that have been historically silenced and dismissed.”

Source: https://www.pilotonline.com/news/vp-nw-nc-bill-sexual-assault-20210313-c6pdbi2wxbgnxdpbm237egbhae-story.html

Domestic Violence Violence Against Women Act

Women Say VAWA Programs Lack Effectiveness

Post author By Edward Bartlett
Post date March 17, 2021

Women Say VAWA Programs Lack Effectiveness, Fail to Address Root Causes

Coalition to End Domestic Violence

March 17, 2021

Numerous women believe the Violence Against Women Act has not been effective in reducing partner violence because it has not addressed the root causes:

“We have no evidence to date that VAWA has led to a decrease in the overall levels of violence against women.” — Angela Moore Parmley, Office of Justice Programs, U.S. Department of Justice
“We have an authority in the Department of Justice who says that there’s absolutely no evidence to date that VAWA has led to a decrease in the overall levels of violence against women.” — Janice Shaw Crouse, PhD, Senior Fellow, Beverly LaHaye Institute
“There is limited empirical support for the assumption that mandatory arrest and prosecution policies in domestic violence cases have the intended effect of reducing violence against women.” — Linda G. Mills, Professor of Social Work, Public Policy, and Law, New York University
“Many women’s advocates have come to question whether VAWA’s approach—which relies heavily on law enforcement to reduce the incidence of sexual assault and domestic violence—could be having adverse effects. In the two decades since its passage, VAWA has been criticized by anti-violence campaigners who believe it may fuel mass incarceration but fail to address the root problems of gender violence.” — Rebecca Burns, Award-winning investigative reporter
“Between 2000 and 2010, rates of domestic violence actually fell less than the drop in the overall crime rate – at a time when VAWA was pumping hundreds of millions of dollars into the criminal system.” — Leigh Goodmark, Professor, University of Maryland Law School
“Feminist efforts to reform rape and domestic violence law have been criticized by some for relying too much on state power and criminal punishment, a particular concern in an era of unprecedented U.S. incarceration and a persistently racially biased criminal punishment system.” — Giovanna Shay, Assistant Professor of Law at Western New England College School of Law
“Many women who experience domestic violence do not want the current limited menu of criminal justice responses. We urge Congress, therefore, to consider and support programs that explore alternatives to the current criminal adjudication models, and that address the underlying causes of abuse.” — Caroline Bettinger-López, Professor, University of Miami School of Law
“As it is currently organized, the criminal justice system doesn’t protect the vulnerable in our society. It punishes them.” — Elizabeth Schulte, journalist
“Framing violence against women as a criminal issue rather than, for example, a civil rights, human rights, or public health issue, inevitably narrows the framework for understanding the scope, causes, consequences, and remedies for violence against women.” — Donna Coker, Professor, University of Miami School of Law
“Men experience the same identical feelings that women experience in violent relationships. Yet our American society has embraced the notion that men can and should ‘take it.’” –– Christine Grant, University of Pennsylvania, Nursing Education