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Feminists claim a bogus strong link between televised football and/or major sports events such as the U.S Superbowl to sudden surges in the incidence of domestic violence.

By way of background this topic was formally addressed in another of my blog posts entitled ‘Fudging the figures to support the feminist narrative‘.

Given however that the media repeats the same theme in various western countries on a fairly regular basis, I have decided that it merits its own post here. But don’t take my word for it, just try word-searching on google, twitter, etc, using terms like ‘World Cup domestic violence’ or ‘Super Bowl domestic violence’ to find examples such as those listed below.

To start the ball rolling let’s begin by reading ‘Does most domestic violence occur on Super Bowl sunday?‘ (7 September 2001), and then move on to ‘The World Cup Abuse Nightmare‘, by Christina Hoff Sommers (10 July 2010)

Australian variants of the same hoax include this 2014 article and one about the NSW State of Origin (2018)

I used to think the Melbourne Cup was wholesome as … well … whatever. But oh, no! Here’s a sample of relevant articles that suggest otherwise:

Our Watch CEO: Keeping women safe is crucial ahead of next week (1 November 2019), Families not the winners on Cup day, and Melbourne Cup alcohol and domestic violence

Take a look at ‘Today, as many celebrate, Australia becomes a more dangerous place for women and children‘ (5 November 2019) for the unconvincing ‘proof’ of alleged jumps in domestic violence.

Then there’s ‘Domestic violence services brace for calls as some men take out their footy finals frustration‘ (20 September 2019) And take a look at Twitter to see how many feminist groups and White Knights are trumpeting this misandrist fable.

But wait, a variation on the theme – people (men, of course) also beat their partners after natural disasters … refer to ‘The Hidden Disaster: Violence in the Aftermath of Natural Disaster‘ (2013). See also ‘NSW, Sydney, QLD bushfire updates: Fury after activist links firefighters to domestic violence‘ (13 November 2019)

And here’s a couple of 2018 World Cup articles (example 1 / example 2)

Searches related to domestic violence spiked during both World Cup semi-finals (14 July 2018)

The Two Englands (12 July 2018)

Manager of Newtown pub fired for ‘joking’ about violence against women (19 July 2018)

Oh, but wait. Now it’s being claimed that climate change is also a trigger for increasing level of domestic violence against women (google search on ‘domestic violence climate change’ for more on this topic)

Climate breakdown ‘is increasing violence against women’ (30 January 2020)

Why climate change fuels violence against women (28 January 2020)

(I will progressively add to this list of papers as & when I find the time)

‘Money damages cannot compensate him for these harms’

Give the University of Connecticut credit for its consistency: It does not believe students have constitutional rights, regardless of what they’re accused of doing.

U.S. District Judge Michael Shea issued a temporary restraining order against the university Thursday, saying it deprived an accused student the opportunity to mount a “meaningful defense” against a rape accusation.

A week earlier the same judge stopped the taxpayer-funded university from punishing two students caught on video drunkenly yelling the n-word as they crossed a parking lot.

Shea found that “John Doe” had met the “heightened” pleading standard required to rejoin his 2020 class and enroll for spring classes.

While UConn “adjusted” his punishment from an expulsion to a two-year suspension for sexual assault, Shea emphasized that UConn as a whole and John’s business school in particular have discretion to keep him out even after 2022.

They also won’t recognize his credits from other schools, leaving him with a functional expulsion regardless. “He would have to explain that [two-year] gap—and his sanction for a sex offense—to any educational institutions or jobs he applies for in the future,” the judge wrote, which would “forever change” the rest of his education and career.

The core of the problem for UConn in Shea’s court was its refusal to let John challenge the credibility of his accuser. The two were the only ones present for the disputed sexual encounter in her dorm room, and the testimony of “Jane Roe” was directly contradicted by witnesses who saw them together earlier in the evening.

MORE: Shea stops UConn for punishing students for protected speech

She “began to lap dance, gyrating her hips and ‘grinding’ on John Doe’s penis” so vigorously that the passenger in front of them felt her knees in the seat and understood she was making sexual motions. Another witness noticed the “sexual rhythm,” in John’s words, and tried to look away.

Jane denied “initiating any sexual contact” in spite of these contrary witness statements, aided by Student Conduct Officer Brian Goepfrich, who removed “all evidence of Jane Roe’s active and willing participation in sexual activity.”

That included the exclusion of a witness statement from the car ride – “in breach of UConn policy” – and refusal to interview another car witness, John claimed. “The Hearing Board followed up by forbidding” those two from giving testimony “as live witnesses.”

Goepfrich actively suppressed contradictory statements by Jane, including how she could have “froze” during the rape while admitting she was an active and “cooperative” participant as they changed positions. She also gave contradictory statements to her roommate and then to investigators about inviting John to her room, the motion says.

Jane not only asked him for a condom, which he produced, but then “voluntarily removed her own underwear.” After John explained this to Goepfrich, the officer recorded the encounter in his notes as “ambiguous”:

This speaks volumes about Goepfrich’s bias. He apparently comprehends it as ambiguous that a woman would directly ask a man to get a condom and then remove her own underwear while the man puts the condom on. To Goepfrich, even the clearest indication of consent does not indicate consent so long as a female student expresses regret after the fact.

MORE: U. Iowa officials personally liable for ignoring First Amendment

Not only did the hearing board ban four of John’s five witnesses from testifying, but it didn’t let him challenge Jane’s witnesses at the hearing – whose written testimony the board cited – because they chose not to attend.

“UCONN’s finding of non-consent necessarily hinged on the credibility” of John and Jane, Shea wrote in his order: “Despite the importance of credibility to the factual dispute, UCONN’s disciplinary procedures hampered [John’s] ability to present a meaningful defense on this issue.”

Citing the ignored or refused testimony of John’s witnesses that would cast doubt on Jane’s credibility, the judge said UConn had no excuse for excluding them.

“In such a dispute, evidence bearing on credibility is critical, and thus the ‘probable value’ of
allowing these witnesses to testify, as an additional procedural safeguard, was substantial,” while imposing no further burden on the university, he wrote.

Despite different courts disagreeing on the right to cross-examination in school disciplinary hearings, in this case John was denied even the right to respond to the accusations against him in a meaningful way,” Shea said. “Under these circumstances, [John] has shown a clear likelihood of success on the merits of his due process claim.”

UConn is severely playing down the consequences John faces, the judge explained:

If he is not permitted to enroll and attend classes while he litigates his claims against UCONN, he will not graduate on time and will have a gap on his résumé and transcript to explain to any future schools or employers, even if he ultimately prevails in this case. Money damages cannot compensate him for these harms, in part because they would be virtually impossible to determine. How does one know why one’s job or school application is rejected?

Shea noted that UConn hasn’t even argued that John’s “presence on campus might inflict particular harm on Roe,” and that John said he and Jane “sometimes crossed paths at their jobs for the same campus employer” for eight months after she accused him. The university didn’t even think it was worth instituting a no-contact order when Jane “renewed her allegations” from April in September.

Shea will next rule on John’s motion for a preliminary injunction after a hearing scheduled for Feb. 11.

Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, publicly told UConn that “it may be time to listen” given the two adverse rulings from the same judge a week apart.

She called the order “a significant ruling for due process on campus,” especially in the 2nd U.S. Court of Appeals, “where the case law is relatively underdeveloped compared to” the Midwestern 6th Circuit and New England’s 1st Circuit.

This case challenges the fairness of disciplinary proceedings brought against Plaintiff John Doe by the University of Connecticut (“UCONN”) for alleged sexual assault, culminating in the Plaintiff’s two-year suspension from the University…. As set forth herein, the Court grants the Plaintiff’s motion for a Temporary Restraining Order {allow[ing] him to “rejoin the class of 2020” and register for Spring classes}.

[A.] Irreparable Harm

Based on the facts alleged in the complaint, the Plaintiff’s affidavit, and the documents submitted in support of the motion, it is clear that the Plaintiff will suffer irreparable harm if he cannot enroll in UCONN this semester. The January 15, 2020 letter from UCONN to the Plaintiff states that his suspension is “effective from December 16, 2019 through January 1, 2022.” Though he may apply for readmission in 2022, his “[r]eadmission to the University is not guaranteed” and “reacceptance into your school or college is at the discretion of the school or college.” In addition, “[a] notation of Suspension shall be placed on [his] official transcript until graduation” and “[t]he University of Connecticut will not accept credits earned at another institution during a period of suspension.”

In his affidavit, the Plaintiff explains that he was “majoring in Management Information Systems in the UConn business school” and “had only one semester to go before graduating.” He was in good academic standing, with a 3.5 GPA and an unblemished record, and he held a job on campus. After the suspension, even if he is readmitted to UCONN, he would “still have to reapply to the business school to complete [his] degree.”  He avers that “[w]ith a finding of responsibility for a sex crime and a two-year gap in [his] educational record … [his] educational and career prospects are forever changed.”

Because UCONN “will not accept credits earned at another institution during a period of suspension,” “this two-year suspension stops [his] education dead in the water” and guarantees that he will have a two-year gap in his education.  He would have to explain that gap—and his sanction for a sex offense—to any educational institutions or jobs he applies for in the future.  He states that he was “beginning to apply for internships which are available only during your senior year,” and that “UConn’s actions against [him] have kept [him] from applying to internships, let alone [his] first post-college job[,] which [he] planned to take after graduating in spring 2020.”

For a college student poised to graduate in a few months, it is highly likely that a two-year suspension and a sanction for sexual assault would indeed “forever change[]” the trajectory of his education and career. If he is not permitted to enroll in the Spring 2020 semester, he would need to explain a gap on his résumé in future applications to schools or jobs. He would also need to explain the suspension notation on his UCONN transcript, and a truthful explanation would seriously hinder his prospects. During the January 23, 2020 telephonic status conference, counsel for the defendants did not offer any argument that the harm imposed by a two-year suspension would not be irreparable. I find, therefore, that the Plaintiff has demonstrated irreparable harm.

[B.] Clear Likelihood of Success on the Merits

The Plaintiff alleges, among other claims, that UCONN’s disciplinary proceedings violated his right to due process under the Fourteenth Amendment. On the record before the Court, the Plaintiff has met the heightened requirement for a mandatory injunction and has shown a clear likelihood of success on his due process claim….

On the question of “what process is due [in government administrative hearings],” the law is highly fact-specific. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” A court must consider three factors in determining whether due process has been satisfied: “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

The Plaintiff was accused of “non-consensual sexual contact and nonconsensual sexual intercourse” with a fellow UCONN student (“Jane Roe”) in Jane Roe’s dorm room on the evening of April 5, 2019. UCONN ultimately found that he did “engage[] in non-consensual sexual contact as well as … non-consensual intercourse with [Jane Roe] in [Roe’s] Residence Hall room.” The Plaintiff does not dispute that he had sexual intercourse with Jane Roe on that night, but he argues that all sexual activity between them was consensual. Because the Plaintiff and Jane Roe were the only two in the dorm room during the incident, UCONN’s finding of non-consent necessarily hinged on the credibility of both the Plaintiff and Jane Roe.

Despite the importance of credibility to the factual dispute, UCONN’s disciplinary procedures hampered the Plaintiff’s ability to present a meaningful defense on this issue. First, the Plaintiff avers in his affidavit that the hearing officers at his December 16, 2019 administrative hearing refused to hear testimony from four of the five witnesses the Plaintiff attempted to present. The evidence the Plaintiff has submitted indicates that his witnesses were prepared to offer testimony that would tend to undermine Jane Roe’s credibility.

Specifically, two witnesses were prepared to testify that Jane Roe had initiated “sexual movements” on the Plaintiff’s lap in the car on the night of April 5, 2019. ECF No. 10-5 at 5 (statement by witness “FW” that “the girl sitting on [Plaintiff’s] lap was moving like she was dancing on his lap, moving her body like moving from her waist. I didn’t want to stare at them.”); ECF No. 10-11 (statement by witness “KW” that “I could also feel the knees of the girl sitting on [Plaintiff’s] lap through the back of my seat. I could feel that she was moving back and forth. It was clear to me that these movements on [Plaintiff’s] lap were sexual. She was not just bumping my seat randomly.”). This is significant because Jane Roe specifically denied initiating any sexual movement on the Plaintiff’s lap. ECF No. 10-2 at 40 (investigator’s interview notes, indicating that he asked Jane Roe, “Information received indicated that you were rubbing your butt on the respondent’s penis while sitting on him in the back seat of the car. Can you respond to this information?” and that Jane Roe responded, “I was not.”).

The record also suggests that the Plaintiff’s proposed witnesses were prepared to testify that Jane Roe and her female friend invited the Plaintiff and one other male friend to their dorm, which would contradict Jane Roe’s written statement, which states, “one of [Plaintiff’s] visiting friends and himself suggested that they come back to my friends and I dorm …. Although my friend and I agreed to them coming over since I knew she liked [Plaintiff’s] friend, I made it a point that we can all, as a group, watch tv in my room as a way to infer that I had no intentions of doing anything sexual ….”

In contrast, the Plaintiff’s friend “JM” stated in his interview that “[Plaintiff] was going to go back to his room, but the ladies wanted me and [Plaintiff] to come back with them. They said ‘let’s chill, let’s come over to our place.’ … My friend [KW] stayed in the car because he did not have a date.” In his written statement, “KW” similarly wrote, “[Plaintiff] got out [of the car]. Both girls in the backseat called out to him to pull him back into the car. They wanted him to come back to their place…. I sure wasn’t being invited back to their dorm…. I stayed in the car and wasn’t invited in. When they left the car, the girls led [JM] and [Plaintiff] to their building. No one invited me to do anything.”

Based on this evidence, the Plaintiff’s proposed witnesses would have provided relevant testimony as to Jane Roe’s credibility, but the hearing officers allowed testimony only from “JM,” refusing to hear testimony from “FW,” “KW,” and two other witnesses proposed by the Plaintiff. “KW” was never even interviewed during the investigation, though the Plaintiff identified him as a potential witness during his interview.

Under the factors identified in Mathews v. Eldridge, although there is a “risk of an erroneous deprivation” in any case involving a “he said/she said” dispute, that risk was heightened by the procedures used here. In such a dispute, evidence bearing on credibility is critical, and thus the “probable value” of allowing these witnesses to testify, as an additional procedural safeguard, was substantial. That value easily outweighed any burden on UCONN, since the witnesses were already present at the hearing and willing to testify.

In addition to denying the Plaintiff the opportunity to present four of his five witnesses, UCONN also never gave the Plaintiff an adequate opportunity to respond to or question Jane Roe or the other female witnesses interviewed during the investigation. Under UCONN’s policy, the Plaintiff was provided with a copy of Jane Roe’s statement and notes from interviews with Roe and two other female witnesses only after the investigation was complete and the investigator had prepared recommended findings. At the hearing, only Roe testified; the other two female witnesses did not attend.

The Plaintiff, therefore, did not have the opportunity at any point in the process to propose any questions for the two female witnesses, let alone to cross-examine them. But the investigator and the hearing officers relied on the interviews of those witnesses in making their determinations. See ECF No. 10-7 at 8, 10 (investigator quoting statements from female witnesses, “S3” and “S4” in analyzing the disputed facts of the incident and concluding “there is a preponderance of the evidence that [Plaintiff] engaged in non-consensual sexual contact”). And while the Plaintiff was allowed to propose some questions for the hearing officers to ask Jane Roe, the hearing officers did not ask every question the Plaintiff proposed, according to representations by Plaintiff’s counsel during the January 23, 2020 argument. See also id. (The Plaintiff asked for a copy of any statement Roe submitted in April 2019, but UCONN did not provide it, and the hearing officers accepted Roe’s testimony that it was the “same” as her later statement without further questioning.).

In analyzing the requirements of due process in the context of university disciplinary proceedings, courts differ on the question of whether the accused has a right to cross-examine witnesses in the traditional manner. Here, however, the Plaintiff was denied even the right to respond to the accusations against him in a meaningful way, because he had no opportunity to question or confront two of Roe’s witnesses on whose statements the hearing officers chose to rely. Given UCONN’s reliance on this testimony and given the importance of credibility evidence to this factual dispute, denying the Plaintiff the opportunity to respond fully to Jane Roe and her witnesses heightened the risk of erroneous deprivation.

This case involves a severe sanction, a “he said/she said” dispute hinging on the credibility of Roe and the Plaintiff, and important procedural shortcomings in exploring the critical issue of credibility. Under these circumstances, the Plaintiff has shown a clear likelihood of success on the merits of his due process claim. See Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967) (“We conclude, therefore, that due process only requires for the dismissal of a Cadet from the Merchant Marine Academy that he be given a fair hearing at which he is apprised of the charges against him and permitted a defense…. [T]he rudiments of a fair hearing in broad outline are plain. The Cadet must be apprised of the specific charges against him. He must be given an adequate opportunity to present his defense both from the point of view of time and the use of witnesses and other evidence.” (emphasis added)); Purdue Univ., 928 F.3d at 664 (plaintiff adequately alleged a violation of due process where, “in a case that boiled down to a ‘he said/she said,’ ” the university’s “Advisory Committee[] fail[ed] to make any attempt to examine [complainant] Jane’s credibility” even though plaintiff “identified specific impeachment evidence,” and noting that the “failure to even question Jane or John’s roommate to prove whether this evidence was reason to disbelieve Jane was fundamentally unfair to John”)….

[C.] Balance of Equities and Public Interest …

While UCONN certainly has an interest in designing and implementing its own disciplinary proceedings, the harm a TRO would inflict on UCONN is slight. It will suffer no harm if the Plaintiff enrolls and begins to take classes this Spring; UCONN’s general counsel confirmed on the January 23, 2020 telephonic status conference that UCONN would not incur any monetary harm from the Plaintiff’s enrollment in the Spring semester. The Plaintiff’s enrollment may cause some emotional harm to Jane Roe, for example, if she encounters the Plaintiff on campus. However, the Plaintiff avers that there was “no incident or conflict between” him and Roe between April 2019 and December 2019, even though they sometimes crossed paths at their jobs for the same campus employer.

Further, nothing in the record before the Court suggests that UCONN is concerned that the Plaintiff’s presence on campus might inflict particular harm on Roe: it took no action in response to Roe’s initial April 2019 allegation, and it did not institute any interim measures—such as a no-contact order—after she renewed her allegations in September 2019. Therefore, because the suspension’s harm to the Plaintiff outweighs any harm to UConn or anyone else, the balance of equities favors the issuance of a TRO that allows him to enroll and take classes while the parties litigate his motion for a preliminary injunction. An evidentiary hearing on that motion has already been scheduled for February 11, 2020.

Finally, the public interest favors a TRO to protect the Plaintiff’s constitutional right to due process while the parties litigate the preliminary injunction motion. There is a public interest in avoiding violations of constitutional rights. While there is also a public interest in enforcement of university disciplinary policies, allowing the Plaintiff to enroll in school while the Court adjudicates his motion for a preliminary injunction does not unreasonably interfere with that interest….

Heavily stacked with pro-accuser representatives

Personnel is policy, as activists sometimes say. And Colorado has made clear via its personnel that it intends to ignore both the courts and the Trump administration’s forthcoming regulations on campus sexual assault investigations.

The state Department of Higher Education named the 11 members appointed to the Sexual Misconduct Advisory Committee created by legislation last year. It’s intended to make recommendations to the Legislature on the federal government’s proposed Title IX rules, which are expected this winter.

The committee requires at least one person each from an institution of higher education, a Title IX coordinator from such institution, a victim advocate, a victim attorney, an attorney for accused people in higher education and a person who has provided “trauma-informed care.”

The actual composition of the committee leans heavily on college officials, particularly Title IX administrators, and victim advocates.

Colorado Politics shared the appointee list just before Christmas, and in a post Thursday, Complete Colorado columnist Joshua Sharf noted the high concentration of representatives who tend to favor accusers.

MORE: CU-Boulder buys off professor who exposed kangaroo-court system

They include officials with “Title IX” in their job titles: Jeremy Enlow of the University of Denver, Ana Guevara of Adams State University and Valerie Simons of the University of Colorado-Boulder. Also those whose portfolio includes Title IX: General Counsel Angela Gramse of the Colorado Community College System and Monica Rivera, director of Colorado State’s Women and Gender Advocacy Center.

Three represent victims broadly: Routt County “victim advocate” Julia Luciano, Rocky Mountain Victim Law Center Executive Director Emily Tofte, and Raana Simmons, director of policy for the Colorado Coalition Against Sexual Assault.

One each is an attorney representing accusers (Fierberg National Law Group’s Cari Simon) and accused students (Foster Graham’s Lara Baker). One serves the most neutral role on the committee: nurse practitioner Elle Heeg Miller of the Health Center at Auraria.

The committee’s composition “seem[s] likely to reinforce the system’s bias against college men,” columnist Sharf wrote, particularly because Democratic Gov. Jared Polis signed the larger bill into law after the Foundation for Individual Rights in Education warned it would formalize unfair procedures on campus.

As a member of Congress, Polis said colleges should be allowed to expel 10 accused students if “maybe one or two did it.” He was immediately denounced by the mothers of accused students, criticized by the local newspaper and rebuked by his district attorney. Polis soon issued a highly qualified apology.

MORE: Polis half-apologizes for calling for expulsion of innocent students

Simons explicitly said the university would not change its practice after Education Secretary Betsy DeVos* rescinded the Obama administration’s nonbinding Title IX guidance, calling its process fair to accused students. A federal judge allowed an accused student’s Title IX lawsuit against Simons and the university to move forward nearly a year ago.

“It’s unclear whether the several lawsuits that the UC system has seen from men suspended, expelled, or otherwise punished have taught her anything,” Sharf wrote.

The committee itself was not set up to review procedural fairness for both parties – a major element of the Trump administration’s proposed rules – but rather “to reduce sexual misconduct at institutions,” according to the state agency’s description.

It will meet within 90 days after the federal regulations are adopted and submit an annual report to the education committees of each legislative chamber starting a year from now.

Read Sharf’s column.

*Disclosure

Today in Inside Higher Ed, higher education risk-management specialist Brett Sokolow shares his thoughts on the changes coming to campus sexual misconduct adjudications when the Department of Education issues its new Title IX regulations. While he says that “[p]erhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications,” he is highly critical of the Department’s plan to require universities to resolve sexual misconduct cases through live hearings with cross-examination. Like so many in higher ed, Sokolow views campus sexual misconduct adjudications as merely “educational resolution processes” — a view that disregards the catastrophic, lifelong consequences students face when they are found responsible for sexual misconduct.

Sokolow writes that cross-examination and live hearings are “potentially very detrimental to the cause of sex and gender equity in education,” stating that they are likely to reduce reporting by victims. This is why, he argues, so many of the comments the Office for Civil Rights received on its proposed regulations (which, unlike the 2011 Dear Colleague letter, were properly put through a public notice-and-comment process) opposed these provisions:

Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges.

This is an area where FIRE disagrees profoundly with Sokolow. Sexual assault is one of society’s most heinous offenses, and a finding of responsibility — even outside of a court of law — carries severe and lasting consequences, such that labeling the process “educational” is totally inappropriate.

Students expelled for sexual misconduct are virtual pariahs when they seek admission to other universities, and those closer to graduating frequently lose job and graduate school offers as well. Depression, anxiety, and even suicide attempts are common. Last spring, Families Advocating for Campus Equality (FACE), a nonprofit due process advocacy organization founded by parents of students found responsible for sexual misconduct without a fair process, submitted testimony in opposition to a proposed California law concerning campus sexual misconduct adjudications. FACE’s testimony included numerous examples of the impact of a finding of responsibility for sexual misconduct, even “just” in a campus judiciary:

• “[M]y son was left suicidal with severe mental illness. Two extensive hospitalizations, three lost semesters at school, $90,000 in out of pocket losses and the complete loss of his hopes, dreams and possibilities.”
• “We have spent nearly $320,000 in legal expenses, doctors’ bills, and medication. My son’s current mental health issues have been diagnosed as a direct result of the trauma imposed upon him by flawed processes, bullying by school and administrators and friends. Four and a half years later, acquaintances still call him a rapist. Today, he suffers from PTSD with debilitating anxiety that prevents him from work and study.”
• “Our son became depressed, couldn’t sleep, couldn’t eat, lost 25 pounds in two months, and became suicidal. He would call me crying — I would answer the phone and hear breathing and sobs. I found him one day trying to hang himself.”

All of this is not to say that students who commit sexual misconduct should not face serious consequences — they absolutely should. But the seriousness of the consequences underscores the need for an adjudication process with meaningful procedural protections like a hearing with the right to cross-examination. Universities may not like the fact that such procedures are more formal and complex than what they were doing before, but the stakes are simply too high for anything less.

And while Sokolow claims that “no research indicates that cross-examination creates more accurate results” than other forms of adjudication, the one article he cites for this proposition is inapposite, as it focuses exclusively on the limits of cross-examination in eliciting eyewitness testimony in mistaken-identification cases. The article itself acknowledges that cross-examination is good at proving untruths and completing the story by eliciting facts that “remained suppressed or undeveloped” on direct examination; the author’s argument is that in mistaken-ID cases, there are not usually “remaining facts known to the witness.” This is a wholly different context from that of campus sexual misconduct cases, where — in the absence of witnesses — the credibility of the two parties, and the completeness of their respective narratives, are often determinative.

Sokolow also expresses concern about the fact that the proposed regulations would “remove the ‘soft ban’ on mediation of sexual violence it implemented in 2011.” Interestingly, a number of university administrators with whom I have spoken — including those in victim support roles — have expressed to me their desire for a mediation option, stating that in the alcohol-fueled, ambiguous situations that often lead to campus accusations, many students’ preference would be for some kind of meaningful conversation and acknowledgment that someone else’s actions caused them pain.

What really surprised me, though, was Sokolow’s statement that “many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence.” Where is his concern over colleges and universities investigating and adjudicating allegations of violence, particularly without the types of procedural safeguards that protect against the introduction of error and bias into the process? If colleges’ ability to handle these matters is a concern when it comes to mediation, shouldn’t it be doubly so when it comes to investigation and adjudication?

One thing Sokolow is absolutely right about is that, following the issuance of the new regulations, there is likely to be litigation on both sides (particularly if, as Sokolow suggests, schools find “clever work-arounds” to avoid implementing provisions they don’t like!). FIRE will be here to bring you all of the latest developments as the fight for due process on campus continues.

Brett Sokolow criticizes live hearings and cross-examination, suggests there may be ‘clever work-arounds’