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Proposed Title IX Regulations Target Sex Bias on College Campuses

Post author By saveadmin
Post date January 25, 2019

January 24, 2019

“A recipient’s treatment of the respondent may constitute discrimination on the basis of sex under Title IX.”[1]

Docket No. ED-2018-OCR-0064, RIN 1870–AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

Supplemental Comment submitted by Stop Abusive and Violent Environments (SAVE)

On November 29, 2018 the Department of Education issued proposed Title IX regulatory changes.[2] Although these proposed regulations often have been referred to as “due process” regulations, it is clear that these regulations, once implemented, will help remedy widespread sex bias against male students at colleges and universities.

This Comment discusses the broader problem of sex discrimination in the arena of campus sexual assault, examining the barriers faced by male students in reporting and defending themselves against sexual assault allegations. The Appendix of this Comment features a listing of 38 judicial opinions issued 2014 to 2018 that upheld a male accused student’s sex discrimination cause of action in a campus sexual assault action.

SEX DISCRIMINATION CAN ASSUME MANY FORMS, DOES NOT REQUIRE ANTI-MALE ANIMUS

Sex discrimination can assume many guises, even within a single case. In Wells v. Xavier Univ., the judge recognized that anti-male bias resulted in an unfair process: “[Wells’] Complaint, however, recounts Defendants having rushed to judgment, having failed to train UCB members, having ignored the Prosecutor, having denied Plaintiff counsel, and having denied Plaintiff witnesses. These actions came against Plaintiff, he contends, because he was a male accused of sexual assault.”

Discrimination against male student was also demonstrated in 2014, in adjudication of a Duke University female student’s complaint alleging that she was too intoxicated to give consent. Duke found the male respondent guilty and a federal lawsuit ensued. During a hearing in federal court, Duke’s dean was asked whether both students could have assaulted one another since both were heavily intoxicated. The dean responded no and stated, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”[3]

This admission by the dean demonstrated that Duke was in violation of Title IX.

The discriminatory impact of policies such as those above violates Title IX, whether or not the school was expressly motivated by anti-male bias. In Doe v. Columbia Univ., the Second Circuit Court of Appeals appropriately observed,

“A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.” (emphasis added).

MALE VICTIMS FACE BARRIERS IN REPORTING AND OBTAINING SUPPORT

According to the CDC National Intimate Partner and Sexual Violence Survey, similar percentages of men and women (Men: 5.3%; Women: 5.6%) experience sexual violence other than rape each year.[4] Of the 25.1 million men who have experienced sexual violence in their lifetimes:[5]

5.4 million were forced to penetrate
6.8 million experienced sexual coercion
13.3 million had unwanted sexual contact

Similarly, among college populations, large percentages of male students are known to have been victimized. According to an American Association of Universities survey at 27 institutions of higher education, 40.9% of undergraduate heterosexual males have experienced sexual harassment, intimate partner violence, or stalking, compared to 60.5% of undergraduate heterosexual females.[6]

According to the National Alliance to End Sexual Violence, “About 14% of reported rapes involve men or boys, 1 in 6 reported sexual assaults is against a boy, and 1 in 25 reported sexual assaults is against a man.”[7] Though it may not be apparent, “Male victims experience similar effects of sexual violence as female victims such as shame, grief, anger and fear…Men and boys who have been sexually victimized have a right to a full range of recovery services in settings that fully support their needs.”[8]

But on campus, male students are “Up Against A System That’s Not Designed To Help Us.”[9] In one survey, 475 undergraduate students “believed that campus resources are more helpful for female than male survivors.”[10] MaleSurvivor notes:

For many boys and men the harm of the initial betrayal of sexual abuse is compounded by the lack of a compassionate response from friends, family, and their community. In addition, toxic stereotypes about masculinity create powerful disincentives to disclosure by men of their pain and suffering. As a result, it is not uncommon for a male survivor to ignore, repress, or avoid disclosure and help-seeking for years – sometimes decades.[11]

Nevertheless, campus processes, websites and training materials are permeated with female -victim centric information, while wholly ignoring the possibility that men may also be sexual assault victims.

Proposed Title IX Regulations

The proposed Title IX rules attempt to resolve sex discrimination against men and treat students equally in several ways.

Section 106.30: General

“. . . [D]efines “supportive measures” as non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed . . . [S]uch measures are designed to restore or preserve access to the recipient’s education program or activity, without unreasonably burdening the other party; protect the safety of all parties and the recipient’s educational environment; and deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, . . . and other similar measures . . .”[12]

Section 106.45(b)(1): General Requirements for Grievance Procedures

“. . . [G]rievance procedures must . . . [r]equire that a recipient ensure that coordinators, investigators, and decision-makers receive training on the definition of sexual harassment and how to conduct an investigation and grievance process . . . that protect the safety of students, ensure due process protections for all parties, and promote accountability; and that any materials used to train coordinators, investigators, or decision-makers not rely on sex stereotypes and instead promote impartial investigations and adjudications of sexual harassment . . .”[13]

Indeed, in court decisions involving the University of Pennsylvania, University of Mississippi, and Drexel University, judges ruled the institutions’ use of seemingly biased training material might have violated Title IX.

FAILURE TO CONSIDER COMPLAINTS BY MALE STUDENTS

A 2015 survey of college students revealed that “Students perceived that barriers to disclosure were more likely to prevent men than women from telling someone they were assaulted and seeking help.”[14] One of these barriers is campus disciplinary committees that refuse to consider allegations of sexual assault when they are made by a male student.

Relevant Case Law

In several lawsuits filed by male accused students, institutions failed to investigate evidence developed during the course of the institution’s own investigation that the accused student was a victim of sexual misconduct according to school policies: Rollins College (2017), Miami University, Amherst College, Williams College, and Drake University.

Rollins College

On January 16, 2019 U.S. District Court Judge Roy Dalton allowed a lawsuit against Rollins College – the second against the institution within two years — to move forward under the theories of breach-of-contract and selective enforcement.[15]

According to the male accused student, his female accuser had taken advantage of him sexually while he was inebriated. During its investigation, the college ignored evidence in favor of the male and overlooked contradictions in the woman’s testimony.[16]

The judge determined that the complaint raised the possibility that Rollins had effectively discriminated against the male student by: rejecting testimony from his witnesses “based, in part, on the male witnesses’ fraternity associations,” while allowing testimony from his accuser’s sorority witnesses; “excus[ing] any inconsistencies” in her testimony concerning whether she had “verbalized consent;” and made “irrelevant, inflammatory, and conclusory statements” about the accused. Rollins College prejudged the male accused student as guilty in order “to protect its image,” according to Judge Dalton.

in the Rollins College case the Title IX office maintained a web page that predominantly displayed the words “Rollins, It’s On Us. We are proud to support the national ‘It’s on Us’ campaign to stop sexual assault. To learn more, click here.”[17] Clicking on the link takes the viewer to the website of the It’s On Us campaign, which is designed to promote “a culture of consent, bystander intervention, and survivor support.”[18] Rollins’ It’s On Us webpage features the following statements focused on women as potential victims of sexual assault:

“Only 20% of female student victims, age 18-24, report to law enforcement”
“Among college women, 9 in 10 victims of rape and sexual assault knew their offender”

Rollins’ It’s On Us page does not include mention of how many male student victims report to law enforcement or knew their offender. Neither does the Rollins’ Title IX page provide any information specific to male victims of sexual assault.

In his ruling, Judge Dalton relied on federal appellate court decisions in lawsuits against Columbia University[19] and Miami University of Ohio[20] involving allegations of sex discrimination. The Columbia University appellate court decision was notable because it overruled a lower court decision that, if allowed to stand, would have made it nearly impossible for male victims of sexual assault to make viable complaints to campus sex tribunals.[21] The Columbia University court determined that a plaintiff can defeat a motion for summary judgment if his or her complaint meets the minimal burden of showing discriminatory intent.[22]

Judge Dalton found sufficient evidence to allow the male accused student’s lawsuit to go forward based on Rollins College’s refusal to even consider the possibility that the female was the sexual aggressor, its biased investigative process, and its subsequent decision to expel the male student.

Proposed Title IX Regulations

Section 106.45(a): Discrimination on the Basis of Sex

“. . . [A] recipient’s treatment of a complainant in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex, and also states that a recipient’s treatment of the respondent may constitute discrimination on the basis of sex under Title IX.”[23]

Section 106.45(b)(1): General Requirements for Grievance Procedures

“. . . [G]rievance procedures must . . . Treat complainants and respondents equitably . . .; [r]equire an investigation of the allegations and an objective evaluation of all relevant evidence . . . and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness . . .; and that a ensure . . . that any materials used to train coordinators, investigators, or decision-makers not rely on sex stereotypes . . .”[24]

SEX-BIASED INVESTIGATIONS

Biased investigations against male students have become a serious problem in campus sexual assault cases. The following strategies are three investigative approaches used by universities, which have resulted in discrimination against men:

Start By Believing program materials instruct sexual assault investigators to:
1. Focus on witness statements “that corroborate the victim’s account.”
2. Make sure the incident report does “not look like a consensual sexual experience.”[25]
3. Make the complainant “appear more innocent.”[26]
4. Tell the accuser, “I am sorry this happened to you. I’m an advocate, and I’m here to help.”[27]
5. Collect any “information necessary to undermine” “potential defense strategies.”[28]

Training materials developed by the national consulting firm Margolis Healy:[29]
1. Consistently use the term “victim,” not complainant.
2. Refer to the accused student using the gendered pronoun, “he.”
3. Advise investigators to turn “He said, she said” into “He said, they said,” meaning the investigator should interview multiple witnesses to corroborate the complainant’s version of events, but not interview witnesses for the defense.

The University of Texas School of Social Work’s Blueprint for Campus Police has two tables[30] that coach investigators how to thwart defense strategies, and discusses factors that are traditionally suggestive of innocence, but interprets them as indicative of guilt:
1. “The alleged perpetrator knows what happened and therefore, appears to make more sense, which can be mistaken for credibility.”[31]
2. “Studies have consistently shown that detecting deception is difficult, so officers may not realize when a perpetrator is lying.”[32]

These policies discriminate against men because the vast majority of respondents in Title IX proceedings are men. In fact, we have seen less than a handful of cases in which women have been accused, while there have been thousands of Title IX adjudications.

Furthermore, when school officials assume a female complainant is the victim and the accused male the perpetrator, then discount or ignore exonerating evidence, and refuse to consider male, the process necessarily favors women over men. As discussed above, in Doe v. Columbia Univ., the Second Circuit Court of Appeals held that, though the school’s intent in adopting its policies may not have been specifically to discriminate against men, any “policy of bias favoring one sex over the other” constitutes sex discrimination.

Relevant Case Law

Over the years, hundreds of lawsuits have been filed against universities by accused men alleging a broad range of investigational biases and errors, based on the types of policies described above.[33] In five decisions, judges affirmed the accused students’ allegations of investigational deficiencies stemming from sex bias: Columbia University, Lynn University, Syracuse University, Hobart and William Smith Colleges, and Cornell University.

In each of these cases (with minor variations), the accused male student presented credible evidence of non-responsibility, e.g., witnesses contradicting the accuser at Columbia, a contemporaneous video of the sexual encounter at Lynn University, or a toxicology report at Cornell undermining the accuser’s claims of incapacitation. In each case the university essentially ignored exonerating evidence because of preconceived notions about how men and women behave (ie., Duke, as discussed above) and/or to allegedly preempt criticism from campus activists, the media, or the federal government that the institution was being insufficiently tough on sexual assault.

This issue was on display in Doe v. Amherst College after a federal district court denied Amherst’s Motion for Judgment on the Pleadings.[34]

In Amherst, the male plaintiff (Doe) had been incapacitated when the female complainant gave him oral sex. However, the school found the male student repsponsible for sexual assault. It was not until the accused filed his lawsuit that discovery revealed text message that proved his claim thast he was the victim.

The plaintiff in Amherst asserted several causes of action, including that the school had violated Title IX based on selective enforcement and deliberate indifference:

In order to prevail on a selective enforcement claim, Doe was required to to establish that his gender was a “motivating factor behind either the College’s decision to pursue disciplinary action . . . or its decision as to the severity of punishment . . .”[35] The Court found that the accused student plaintiff had met his burden on this claim, because he had alleged that Amherst encouraged the female complainant to file her complaint but did not do the same for him. Amherst did not even investigate his allegations despite his repeated allegations that he had had been “blacked out” when the female complainant initiated sexual activity with him.[36]

The plaintiff’s deliberate Indifference claim required him to show that Amherst was deliberately indifferent when handling his sexual harassment claim. The court found the male student had met this burden after he asserted that the female complainant initiated sexual activity with him while he was incapacitated. According the Court, “the College did not take even minimal steps to determine whether [the plaintiff] should have been viewed as a victim under the terms of the policy.”[37]

Proposed Title IX Regulations

The proposed Title IX regulations include two provisions designed to reduce investigative bias:

Section 106.45(b)(1): General Requirements for Grievance Procedures

“[G]rievance procedures must . . . [t]reat complainants and respondents equitably; an equitable resolution must . . .; [r]equire an investigation of the allegations and an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence – and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.”[38]

Section 106.45(b)(3): Investigations of a Formal Complaint

“[W]hen investigating a formal complaint, a recipient must . . . “[p]rovide both parties an equal opportunity to inspect and review evidence . . . so that each party can meaningfully respond to the evidence prior to conclusion of the investigation . . . [and] [c]reate an investigative report that fairly summarizes relevant evidence and, at least ten days prior to a hearing . . . , provide a copy of the report to the parties for their review and written responses.”[39]

FLAWED ADJUDICATIONS

In many cases, flawed adjudications are a direct result of the use of a single-investigator model in which the same college official serves as the investigator and adjudicator. Sex-biased adjudications have been well documented by accused male student lawsuits.

Relevant Case Law

In six decisions, the judge ruled the institution purportedly found all accused male students responsible for engaging in sexual misconduct (or) employed Title IX officials who were openly biased against male students: University of Oregon, Penn State University, University of Cincinnati, Muskingum University, University of Chicago, and Washington and Lee University.

Proposed Title IX Regulations

Section 106.45(b)(1): General Requirements for Grievance Procedures

“[G]rievance procedures must . . . [t]reat complainants and respondents equitably; an equitable resolution must . . .; [r]equire that any individual designated by a recipient as a coordinator, investigator, or decision-maker not have have a conflict of interest or bias for or against complainants respondents generally or an individual complainant or respondent; and that a recipient must ensure that coordinators, investigators, and decision-makers receive training on the definition of sexual harassment and how to conduct an investigation and grievance process – including hearings, if applicable – that protect the safety of students, ensure due process protections for all parties, and promote accountability . . .”[40]

ACKNOWLEDGEMENT

Cynthia Garrett, Esq. did the final case review and analysis of the report.

Appendix

JUDICIAL DECISIONS UPHOLDING A CAUSE OF ACTION OF SEX DISCRIMINATION, 2014-2018

Wells v. Xavier Univ., 7 F.Supp.3d 746 (S.D. Ohio 2014)
Harris v. St. Joseph’s Univ., 2014 U.S. Dist. LEXIS 65452 (E.D. Pa. May 13, 2014)
Doe v. Salisbury Univ., 107 F.Supp.3d 481 (D. Md. 2015)
Doe v. Washington and Lee Univ., 2015 U.S. Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015)
Doe v. Salisbury Univ., 123 F.Supp.3d 748 (D. Md. 2015)
Doe v. Brown Univ., 166 F.Supp.3d 177 (D.R.I. 2016)
Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS 161297 (N.D.N.Y. Feb. 24, 2016)
Marshall v. Indiana Univ., 170 F.Supp.3d 1201 (S.D. Ind. 2016)
Doe v. Bd. of Regents of the Univ. Sys. of Ga., No. 15-cv-04079 (N.D. Ga. April 19, 2016)
Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016)
Collick v. William Paterson Univ., 2016 U.S. Dist. LEXIS 160359 (D.N.J. Nov. 17, 2016)
Doe v. Lynn Univ., 235 F.Supp.3d 1336 (S.D. Fla. 2017)
Neal v. Colo. State Univ. – Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. Feb. 16, 2017)
Doe v. Amherst Coll., 238 F.Supp.3d 195 (D. Mass. 2017)
Doe v. Ohio State Univ., 239 F.Supp.3d 1048 (S.D. Ohio 2017)
Doe v. Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017)
Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160 (M.D. Fla. July 20, 2017)
Doe v. Case Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 (N.D. Ohio Sept. 1, 2017)
Doe v. Univ. of Pa., 270 F.Supp.3d 799 (E.D. Pa. 2017)
Rolph v. Hobart & William Smith Colls., 271 F.Supp.3d 386 (W.D.N.Y. 2017)
Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D. Ill. Sept. 20, 2017)
Saravanan v. Drexel Univ., 2017 U.S. Dist. LEXIS 193925 (E.D. Pa. Nov. 24, 2017)
Doe v. Pa. State Univ., 2018 U.S. Dist. LEXIS 3184 (M.D. Pa. Jan. 8, 2018)
Gischel v. Univ. of Cincinnati, 302 F.Supp.3d 961 (S.D. Ohio 2018)
Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018)
Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS 36350 (S.D. Ohio Mar. 6, 2018)
Doe v. Marymount Univ., 297 F.Supp.3d 573 (E.D. Va. 2018)
Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26, 2018)
Elmore v. Bellarmine Univ., 2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar. 29, 2018)
Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa. May 2, 2018)
Doe v. Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018)
Doe v. Univ. of Miss., 2018S. Dist. LEXIS 123181 (S.D. Miss. July 24, 2018)
Doe v. Brown Univ., 327 F.Supp.3d 397 (D.R.I. 2018)
Doe v. Baum, 903 F.3d 575 (6th Cir. 2018)
Doe v. Syracuse Univ., 341 F.Supp.3d 125 (N.D.N.Y. 2018)
Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12, 2018)
Doe v. Rider Univ., No. 3:16-cv-04882 (D.N.J. Oct. 31, 2018)
Powell v. Mont. State Univ., 2018 U.S. Dist. LEXIS 215891 (D. Mont. December 21, 2018)

Citations:

[1] Proposed Title IX regulation, Section 106.45(a): Discrimination on the Basis of Sex

[2] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. Prop. Dep’t Educ., 83 Fed. Reg. 61462, 61499 (Nov. 29, 2018).

https://www.regulations.gov/document?D=ED-2018-OCR-0064-0001

[3] City Journal, “Mainstream Ideas, Fringe Opposition.” January 18, 2019. https://www.city-journal.org/neomi-rao-college-oped

[4] NISVS, Tables 2.1 and 2.2. http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf

[5] NISVS,Table 2.2.

[6] Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, 2015. Table 5-3. https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-Safety/AAU-Campus-Climate-Survey-FINAL-10-20-17.pdf

[7] https://www.endsexualviolence.org/where_we_stand/male-victims/

[8] https://www.endsexualviolence.org/where_we_stand/male-victims/

[9] Emily Kassie, Male Victims Of Campus Sexual Assault Speak Out ‘We’re Up Against A System That’s Not Designed To Help Us’ https://www.huffingtonpost.com/2015/01/27/male-victims-sexual-assault_n_6535730.html

[10] Christopher T. Allen, Rebecca Ridgeway & Suzanne C. Swan, College Students’ Beliefs Regarding Help Seeking for Male and Female Sexual Assault Survivors: Even Less Support for Male Survivors. Journal of Aggression, Maltreatment & Trauma, 2015. https://www.tandfonline.com/doi/abs/10.1080/10926771.2015.982237

[11] MaleSurvivor. https://www.malesurvivor.org/for-professionals/

[12] Proposed Title IX Regulation at 61479.

[13] Id. at 61472.

[14] Christopher T. Allen, Rebecca Ridgeway & Suzanne C. Swan, College Students’ Beliefs Regarding Help Seeking for Male and Female Sexual Assault Survivors: Even Less Support for Male Survivors. Journal of Aggression, Maltreatment & Trauma, 2015. https://www.tandfonline.com/doi/abs/10.1080/10926771.2015.982237

[15] https://www.scribd.com/document/397618499/Judge-allows-anti-male-bias-lawsuit-to-proceed-against-Rollins-College-for-Title-IX-investigation#from_embed

[16] Greg Piper, Judge approves gender-bias lawsuit against Florida college for ignoring evidence in male’s favor. January 17, 2019. https://www.thecollegefix.com/judge-approves-gender-bias-lawsuit-against-florida-college-for-ignoring-evidence-in-males-favor/

[17] https://www.rollins.edu/sexual-misconduct/

[18] https://www.itsonus.org/pledge/

[19] https://www.thecollegefix.com/appeals-court-reinstates-reverse-discrimination-case-columbia-student-accused-rape/

[20] Doe v. Miami Univ., 822 F.3d 579 (6th Cir. 2018).

[21] Greg Piper, Appeals court reinstates reverse discrimination case against Columbia by student accused of rape. July 29, 2016. https://www.thecollegefix.com/appeals-court-reinstates-reverse-discrimination-case-columbia-student-accused-rape/

[22] Doe v. Columbia Univ., 831 F.3d 46, 55 (2d Cir. 2016).

[23] Proposed Title IX Regulation at 61472.

[24] Id.

[25] EVAWI Effective Report Writing, at 14. http://olti.evawintl.org/images/docs/REPORT%20WRITING%205-15-12.pdf

[26] EVAWI Effective Report Writing, at 11.

[27] EVAWI, http://www.startbybelieving.org/home

[28] EVAWI Effective Report Writing, at 4, 26.

[29] Margolis Healy, Title IX Investigations. Slide 28 (2012). http://www.prosecutorintegrity.org/wp-content/uploads/2016/05/Margolis-Healy-VCI-presentation.docx

[30] Busch-Armendariz, N.B., Sulley, C., & Hill, K. (2016). The Blueprint for campus police: Responding to sexual assault. Austin, TX: Institute on Domestic Violence & Sexual Assault, The University of Texas at Austin” Tables 7.3 and 7.4. https://utexas.app.box.com/v/blueprintforcampuspolice

[31] Id. at 97.

[32] Id.

[33] SAVE, “Victim-Centered Investigations: New Liability Risk for Universities.” 2016. http://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf

[34] Amherst Coll., 238 F.Supp.3d at 229.

[35] Id. at 223.

[36] Id.

[37] Id. at 224.

[38] Proposed Title IX Regulation at 61472.

[39] Id. at 61475.

[40] Proposed Title IX Regulation at 61472.

Dating Violence VAWA Inclusion Mandate

Five Principles for Re-Thinking VAWA: A Bipartisan Approach

Post author By saveadmin
Post date January 22, 2019

E. Everett Bartlett, PhD

President, Coalition to End Domestic Violence

As we know, Congress only approved short-term extensions to the Violence Against Women Act in 2018.[1] It did not succeed in accomplishing the five-year reauthorization of the law.

In the Senate, a VAWA bill was never introduced, even though a hearing was held on March 21.[2] In the House, Rep. Jackson Lee did introduce a reauthorization bill, H.R. 6545.[3] But lacking Republican support, the bill never went before the Committee for a vote.

It is clear that the problem was not a lack of legislative interest or concern. The real issue lies with an evolving understanding of the nature of domestic violence, and especially a broad public concern over the problem of over-criminalization in our society.

The solution to this apparent impasse is to take a step backwards to better understand the contours of this evolving understanding. To accomplish this, I am proposing five principles for re-thinking VAWA. I believe all of these principles enjoy general bi-partisan support:

Rely on science, not ideology

In 2004, the National Academy of Sciences released a comprehensive analysis of VAWA, concluding that domestic violence programs are often “driven by ideology and stakeholder interests rather than plausible theories and scientific evidence of fact.”[4] By “ideology,” the NAS was referring to the prevailing model of “patriarchal control,” which posits domestic violence is a by-product of men’s abiding thirst for power and control over women.

But six years later, the Centers for Disease Control released the results of its NISVS survey. This historic survey found female-on-male partner violence was more common than male-on-female violence.[5] Even more surprising, the survey found the highest rates of violence were found in lesbian same-sex relationships.[6] The “patriarchal control” model obviously doesn’t fit with these well-documented facts.

Both liberals and conservatives believe in the need for truth, and embrace the role of science to elucidate the truth.

Avoid over-criminalization

The United States has the highest rate of incarceration of any country of the world. University of Maryland law professor Leigh Goodmark recently noted, “scholars have argued that the turn to criminal law to address intimate partner violence contributed to mass incarceration.”[7] Goodmark urges use of a more balanced approach that views domestic violence as an economic, public health, community, and human rights problem.

Last year, the FIRST STEP Act was approved with strong bi-partisan majorities in Congress.[8] For the first time, Congress acted to reverse the decades-long process of creating new crimes, expanding definitions of existing crimes,[9] reducing due process protections, and increasing punishments.

Clearly, the goal of reducing over-criminalization enjoys the support of both Republicans and Democrats.

Address waste, fraud, and abuse

Last March the Washington Post published a report titled, “Mice in the couches, mold on the walls: Years of problems at this government-funded shelter.”[10] The problem at the Safe Passages Shelter was not a lack funding, because its annual budget was $1.3 million. Rather, the problem was a lack of programmatic and financial accountability. Eventually, the shelter had to be temporarily closed.

This was not an isolated problem. Department of Justice audits of 47 VAWA grantees found that 34 of them were “Generally Non-Compliant.”[11] In other words, 72% of the grantees flunked the audit.

Both conservatives and liberals are troubled by accounts like the Safe Passage Shelter. Surely, all persons can support measures to prevent closures of abuse shelters and to prevent the pilfering of funds designed to stem partner violence.

Recognize the problem of false allegations

By any measure, we now experiencing an epidemic of false allegations of domestic violence. One survey found that 9.7% of American adults report they have been falsely accused of domestic violence, sexual assault, or child abuse.[12]

One online petition states, “Laws enacted to protect the victims of the vile crime of domestic violence are being misused by both citizens as well as law enforcement, and in this process innocent men’s lives are being destroyed.”[13] This petition currently has over 39,000 comments.

False allegations not only ruin the lives of the falsely accused, they also undermine the credibility of future victims. That’s a concern that liberals and conservatives alike can relate to.

Involve a broad range of stakeholders

For years, a group known as the National Task Force to End Sexual and Domestic Violence has controlled the VAWA reauthorization process. But if you visit the NTF website,[14] there is no listing of staff names, addresses, phone numbers, or member organizations.

As one observer concluded, “U.S. public policy on domestic violence is being controlled by an organization that is utterly secret. We neither know…what the NTF is, what it does, who funds it, who is affiliated with it, or whether it violates federal law.”[15]

To address this problem, the 40 members of the Coalition to End Domestic Violence have requested that they “have a seat at the table as full and frequent participants in the drafting process.”[16]

Inclusiveness is implicit in the American ideals of democratic decision-making and citizen involvement. “Inclusiveness” is a goal that both liberals and conservatives can support.

Recommendations

Given the difficulty in accomplishing the VAWA reauthorization, we are now making two recommendations:

A contract will be made with an external, independent, and scientifically based organization to do a thorough assessment of the Violence Against Women Act. This assessment will be similar in scope to the one conducted in 2004 by the National Academy of Sciences. The report would contain legislative recommendations. This likely would entail a two-year process.
During this period, Congress will pass a two-year extension of the existing VAWA law with straight-line appropriations.

In short, viewing domestic violence as a human problem, rather than as an ideological crusade, will allow us to move forward with this vitally important piece of legislation.

Citations:

[1] https://www.opensecrets.org/news/2018/10/vawa-at-risk-of-lapsing/

[2] https://www.c-span.org/video/?442853-1/officials-testify-violence-women-act-reauthorization

[3] https://www.congress.gov/bill/115th-congress/house-bill/6545

[4] https://www.nap.edu/catalog/10849/advancing-the-federal-research-agenda-on-violence-against-women

[5] Centers for Disease Control and Prevention. 2010 National Intimate Partner and Sexual Violence Survey, Atlanta, Georgia. Tables 4.7 and 4.8. http://www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-a.pdf

[6] NISVS: 2010 Findings on Victimization by Sexual Orientation. Tables 6 and 7.

[7] Leigh Goodmark. Decriminalizing Domestic Violence: A Balanced Policy Approach. 2018. Page 3.

[8] https://www.congress.gov/bill/115th-congress/house-bill/5682/text

[9] https://thehill.com/opinion/healthcare/414099-violence-against-women-act-diminishes-the-seriousness-of-domestic-violence

[10] https://www.washingtonpost.com/local/md-politics/mice-in-the-couches-mold-on-the-walls-years-of-problems-at-this-government-funded-shelter-for-abused-women/2018/03/21/a7933ec4-f4ca-11e7-a9e3-ab18ce41436a_story.html

[11] http://endtodv.org/pr-violence-against-women-act-7-out-of-10-grant-recipients-flunk-audits/

[12] http://www.saveservices.org/dv/falsely-accused/survey/

[13] https://www.petition2congress.com/ctas/stop-false-allegations-domestic-violence

[14] http://www.4vawa.org/

[15] https://nationalparentsorganization.org/blog/23940-secret-organization-controls-u-s-domestic-violence-policy

[16] http://endtodv.org/statements/organizations/

Uncategorized

Public Comment Period Extended for Title IX Rule

Post author By saveadmin
Post date January 18, 2019

January 18, 2019

The Department of Education said Thursday it would extend the public comment period for a proposed Title IX sexual misconduct rule. Technical issues have made the website that accepts public comments on federal rules unavailable since Wednesday.

Politico first reported the issues on the site, regulations.gov, which a banner message blamed on the ongoing government shutdown before federal officials said a technical glitch was to blame.

“The department will extend the public comment period to ensure that the public will have had 60 days in total to submit comments on this proposed rule using the Federal eRulemaking Portal,” said Liz Hill, a spokeswoman for the Education Department.

Comments on the new campus sexual misconduct rule were due by Jan. 28. The new closing date will be determined when the website is back online.

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New Title IX Rules Would Empower Both The Accused And The Survivors

Post author By saveadmin
Post date January 16, 2019

The U.S. Dept. of Education has proposed new guidelines for colleges to address sexual misconduct and sexual harassment, known as Title IX.

MICHAEL COGHLAN / CREATIVE COMMONS / FLICKR.COM/PHOTOS/MIKECOGH

While I’m not a fan of most of Betsy DeVos’s reforms, when it comes to Title IX, I’m in full support.

The proposed rules do help the accused by restoring their fundamental right to cross-examine their accuser. For students facing expulsion and being branded as sexual predators, this is no small thing.

But victims would also be empowered. They’d be able to opt to participate in a facilitated conversation in which the harm is identified and responsibility taken.

“I just wanted him to hear me,” explained one woman who participated in such a conference.

“I realized that saying sorry wasn’t enough,” said one repentant man.

The old guidelines prohibit this option.

And there’s another benefit for victims. Right now, the very people who might provide much-needed counsel are deputized as mandatory reporters. Should faculty overhear anything suspicious at the salad bar or in a personal essay on dorm life or wherever, we’re required to report it immediately to the Title IX office.

If the student says she doesn’t want to report, we are to override her resistance.

Any ambivalence on her part, we’re told at annual trainings, is a symptom of trauma. Under no circumstances are we to talk with a student about the incident, as we might re-traumatize her.

The proposed rules give colleges the chance to retire the undercover army of sex police. Teachers can once again assume the essential role of mentor, exploring options rather than betraying a student’s confidence.

For victims, these changes are enormous. Instead of being treated as if they’re too traumatized to act on their own behalf, they’re given the opportunity to think and make decisions for themselves.

Our nation’s undergraduates need us to believe in their capacity to grow and change. Our society needs adults who’ve been given the support to learn from their mistakes, and to tell others clearly when boundaries have been crossed.

And we all need more opportunities for honest conversations about the pitfalls of passion.

The DeVos guidelines help us to get there.

Meg Mott has studied Title IX, and teaches politics at Marlboro College in Marlboro, Vermont.

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Disallowing Cross-Examination Can Violate State and Federal Law

Post author By saveadmin
Post date January 14, 2019

The Supreme Court has lauded cross-examination as “the greatest legal engine ever invented for the discovery of truth.” Suzanne Goldberg overlooks the Supreme Court’s praise for cross-examination, attributing this praise instead to a “1904 legal treatise” (“Keep Cross-Examination Out of College Sexual-Assault Cases,” The Chronicle, January 10).

But it is not just long-dead legal writers who view cross-examination this way. The Supreme Court still does, as it declared in its 1999 ruling in Lilly v. Virginia.

Goldberg wants to keep cross-examination out of campus sexual-assault and harassment cases. But doing that can violate state and federal law.

Some state courts have ruled that their state’s Administrative Procedures Act gives accused students the right to cross-examine their accuser. Federal law often confers this right as well. In Doe v. Baum (2018), a federal appeals court ruled that an accused student had a due-process right to cross-examination of his accuser in a college discipline hearing. That court ruling, just like the Supreme Court’s Lilly decision, touted cross-examination as ”the greatest legal engine ever invented” for uncovering the truth.

Colleges cannot ignore these court rulings in favor of accused students’ statutory and constitutional rights, even if Goldberg disagrees with them.

Hans Bader
Former Education Department Lawyer
Arlington, Va.

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Over Half of Accused Students Found Not Responsible by Campus Sex Tribunals

Post author By saveadmin
Post date January 11, 2019

An analysis of annual reports from 48 colleges in 21 states reveals that 52.7% of campus sexual assault adjudications resulted in a finding of “not responsible” for the accused student – see table.

These online reports identify the outcomes for allegations of sexual assault hearings. The link to each report is embedded in the name of the College or University, first column in the Table, below. The information comes from both private and public institutions nationwide.

The analysis includes only reports that specifically identify the outcomes for adjudications involving allegations of sexual assault. The information does not include other potential conduct code violations, such as sexual harassment and sexual exploitation.

This finding is similar to a 2017 NCHERM report titled “Due Process and the Sex Police” that stated, “annual summaries show that they are finding no violation of policy 60% of the time in their total case decisions.”

Most institutions review sexual misconduct cases based on the preponderance of evidence standard. In practice, this standard is essentially a measure of credibility of the statements of the accuser and the accused. The fact that a larger percentage of students was found not responsible demonstrates that most allegations investigated by colleges are determined to be unfounded.

Table: Outcomes of Campus Adjudications of Sexual Assault Claims at 48 Colleges


COLLEGE/ UNIVERSITY	ENROLLMENT (2017)ⁱⁱ	TIME PERIODⁱⁱⁱ	RESPONSIBLEⁱ	NOT RESPONSIBLE
Amherst College	1,849	2014	5	3
Augustana College	2,537	2016	2	1
Brown University^*	9,781	2016-17	0	3
California State University -Chico	17,557	2017-18	3	4
Carleton College	2,105	2017-18	3	0
Case Western Reserve University^*	11,664	2015-16	1	1
Central Connecticut State University	11,784	2017	1	3
College of William and Mary^*	8,617	2016-17	4	9
Columbia University, NYC	29,372	2016-17	3	6
Cornell University	22,319	2016-17	5	8
Dartmouth College	6,409	2016-17	4	4
Delaware State University	4,328	2017	3	2
Eureka College	672	2016	3	24^iv
Goldey-Beacom College	2,063	2017	8	9
Hamilton College	1,883	2016-17	4	3
Illinois State University^v	21,039	2017	10	4
Indiana U.-Bloomington	49,695	2016-17	13	6
Indiana University -Purdue University -Indianapolis	29,804	2016-17	1	2
Lake Forest College	1,578	2016	2	1
Massachusetts Institute of Technology	11,376	2014-18	10	6
Michigan State University^*	50,340	2016-17	16	16
Northwestern University	21,823	2016	4	2
Occidental College	1,969	2015-16	2	0
Oklahoma State University-Main Campus ^vi	25,622	2016-17	4	0
Park University	11,227	2017-18	1	2
Quinnipiac University	9,900	2017	1	0
Rhodes College	2,029	2017-18	1	3
Sacred Heart University	8,532	2017	1	1
San Jose State University^vii	32,154	2016-17	4	1
Southern Connecticut State University	10,320	2017	2	0
Stanford University^viii	17,184	2016-17	3	5
The California Maritime Academy	1,107	2017-18	0	1
University of Alaska Anchorage	16,318	2016-17	0	1
University of Alaska Fairbanks	8,283	2016-17	3	0
University of Arkansas^ix^,*	27,194	2017-18	5	10
University of Bridgeport	5,658	2017	0	1
University of California-Irvine	32,754	2017-18	3	3
University of California- San Diego	34,979	2015	1	0
University of Chicago^x	15,775	2016-17	3	6
University of Connecticut^xi	27,721	2017	4	11
University of Delaware	23,009	2017	2	0
University of Hartford^*	6,714	2017	1	4
University of Maryland-College Park	39,083	2016-17	4	6
University of Michigan- Ann Arbor	44,718	2017-18	0	3
University of Montana	12,419	2016-17	3	1
University of Oregon	23,546	2016	15	9
Western Michigan University^*	23,227	2016-17	5	6
Yale University^xii	12,458	2017-18	2	4
TOTAL:			175	195
PERCENTAGE:			47.3	52.7

i Decisions are mostly based on formal procedures. Exceptions for a few schools (noted below) include allegations that were screened out as not rising to the level of a policy violation. Few schools report those data, yet it is likely that many schools screen out allegations that do not rise to policy violations, suggesting that the percent not responsible would be larger than calculated here if schools reported the total number of allegations screened out. The number of decisions is usually the number of allegations, unless the report provides the number of respondents. Multiple allegations per respondent were more frequent than multiple respondents per allegation; hence the total number of decisions is somewhat greater than the number of respondents.

ii Enrollment data are from the US Dept. of Education, 2018.

iii The data represent one year from each school, usually the latest academic or calendar year for which a report is available (except MIT with 4 years).

iv If the large number of not responsible findings for this small school are considered an outlier, deleting the school’s data changes the total not responsible to 50%.

v Six “otherwise disciplined” students tallied as responsible in this table.

vi Unwelcome sexual touching and Exposure are not included in OSU’s definition of sexual assault.

vii Sexual battery is included here as sexual assault for SJSU.

viii Some of Stanford’s outcomes are ambiguous: 1 of 2 non-hearing resolutions were counted as responsible, the other is not clear and was not counted; 5 student decisions had an unspecified split between “no charge” and formal findings of not responsible. All 5 were counted as not responsible.

ix Count of 9 outcomes listed as “Available evidence did not support a charge of policy violation or necessitate further university investigation” were tallied here as not responsible.

x Sexual assault definition doesn’t include sexual abuse (non-consensual sexual contact).

xi Outcomes for employees not included here.

xii Not responsible total includes 1 screened out allegation.

^* These 7 schools may have included a small number of allegations involving employees, teasing this out was not possible with the reported information.

Uncategorized

Appellate Court Decisions Generally Support Proposed Federal Regulations for Campus Sexual Assault

Post author By saveadmin
Post date January 7, 2019

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Appellate Court Decisions Generally Support Proposed Federal Regulations for Campus Sexual Assault

WASHINGTON / January 7, 2019 – A report released today analyzes appellate court decisions on campus sexual assault, and concludes “the findings of the 14 appellate decisions are generally consistent with, and substantially enhance the legal basis for the provisions contained in the proposed Title IX regulations.”

The report analyzes 14 appellate rulings that were at least partly favorable to the accused student, and were issued from 2013 to 2018. Of the 14 decisions, eight were rendered in 2018 alone.

Among the 14 cases, five were decided by federal appellate courts and nine were resolved by state appellate courts. Four cases came from California appellate courts, three rulings from New York courts, and three from the 6^th Circuit Court. Additional rulings came from the 1st, 2nd, and 4th Circuit Courts, and the Washington state appeals court.

The decisions highlighted due process deficiencies in eight areas: Insufficient hearing process, lack of cross-examination, insufficient notice, inadequate investigation, conflicting roles of college officials, improper use of witness testimony, potential sex bias, and misuse of affirmative consent policies.

The report then compares the appellate Judicial Findings with the due process provisions enumerated in a recent Notice of Proposed Rule-Making issued by the Department of Education (1). The analysis documents a general consistency between the appellate court rulings and the proposed regulatory changes.

Last week, the California Court of Appeal issued another decision in favor of the accused student. The court chided the University of Southern California for its reliance on a single-investigator approach, noting this practice “ignores the fundamental nature of cross-examination,” which is “incompatible” with any credible effort “to uncover the truth.” (2)

The SAVE Special Report is available online (3). A summary of the 14 cases is also available (4).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

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Changes to Universities’ Sexual Assault Tribunals May Be Here to Stay

Post author By saveadmin
Post date January 6, 2019

Education Department is planning to make significant reforms to Title IX regulations.

On November 29, the 60-day public comment period opened for Title IX regulations proposed by U.S. Department of Education Secretary Betsy DeVos. The move was the latest, and most significant, step in DeVos’s efforts to encourage colleges and universities to create a more balanced adjudication system for resolving campus sexual assault allegations.

Three features distinguish DeVos’s proposed regulations from the Title IX initiatives of her Obama-era predecessors.

First, the proposed rule would redefine the relationship between the Education Department’s Office for Civil Rights (OCR) and the nation’s universities, in ways that give schools more flexibility to implement Title IX. The regulations would adopt the U.S. Supreme Court’s definition of sexual harassment found in Davis v. Monroe County Board of Education—behavior “that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”—rather than the more expansive language of earlier OCR guidance.

Second, the proposed regulations would no longer require schools to adjudicate some off-campus claims. Citing Title IX’s statutory language, the proposed regulations would apply to “discrimination under any education program or activity receiving Federal financial assistance.” However, in contrast to a version of the proposed rules leaked in August, the published proposal notes that courts have deemed fraternities as covered under Title IX, suggesting that universities would need to adjudicate incidents that occur even at off-campus fraternities.

Third, the proposed regulations would reduce the number of employees whose knowledge of a sexual misconduct allegation would require the university to initiate an investigation.

In theory, these are substantial changes—and they have generated ferocious criticism from Obama-era officials and accusers’ rights activists. In practice, however, they are likely to have scant effect. Any college president who confined her institution’s Title IX policies to these provisions would almost certainly face massive protests from campus activists. Many schools can, and likely will, define sexual harassment more broadly than Davis. They can, and likely will, designate many or even most employees as mandatory reporters. And schools can, and likely will, continue to adjudicate off-campus conduct.

Indeed, recently a student sued Harvard after learning that the institution planned to adjudicate a sexual assault complaint against him—even though the complaint was filed by a non-student and involved an incident that occurred hundreds of miles away from campus, wholly unrelated to any Harvard-related activity.

If the definitional items in the proposed rules will not likely change much in institutions’ decisions about whether to adjudicate sexual assault allegations, the proposed rule would dramatically alter how colleges adjudicate. Although Title IX long has required “equitable” grievance procedures, Clinton-era guidance provided relatively few specifics on how to implement this mandate. Obama-era guidance, on the other hand, envisioned schools prioritizing the OCR’s interpretation of Title IX over any “due process rights” for accused students. As a result, universities increasingly employed a “single-investigator” adjudication model, handling sexual assault claims without any hearing at all, relying instead on the judgment of a Title IX employee or a lawyer hired by the Title IX office.

President Obama’s second-term OCR head, Catherine Lhamon, even deemed it “nonsense” to assert that courts have required direct cross-examination as part of due process protections for students accused of sexual assault. But, in fact, multiple federal courts have required it. The most prominent such decision, from the U.S. Court of Appeals for the Sixth Circuit in Doe v. Baum, made clear that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” It is from this emerging body of law that DeVos’s proposed rule heavily draws.

The regulations would require schools to allow cross-examination, conducted by a lawyer or advocate for each party. They would require schools to share with both sides evidence from the investigation. The rules would require schools to divulge to both parties the materials with which Title IX adjudicators are trained. And they would require schools to presume that the accused student is innocent. Although these changes would create a more equitable adjudication process, I am aware of no college or university with a Title IX code that currently includes all four of these provisions.

Finally, unlike her predecessors, DeVos has chosen to issue new regulations, eschewing the Obama Administration’s preference for guidance documents issued without notice or public comment. President Obama’s OCR heads had threatened to pull federal funding from any school that did not implement the guidance, which gave it the same effect as if it were binding law. Making a Title IX change through a rulemaking will delay the implementation of the new policy, which now will not come into effect until well into DeVos’s third year in office. And the notice-and-comment period gives DeVos’s opponents an opportunity to mobilize against the proposed changes in a way that a comment-free guidance document does not provide.

But opting for a new regulation rather than guidance has two major advantages for DeVos. First, in recent years, both progressive activists and Democratic legislators have championed an approach to Title IX that encourages more reporting of campus sexual assault allegations at the expense of fairer investigative and adjudicative procedures. It seems all but certain that the next Democratic administration will hope to restore President Obama’s Title IX principles. A guidance document issued by DeVos would lack lasting force; regulations, at the very least, would be more difficult to overturn.

Perhaps more important, regulations likely would require adherence, albeit very reluctantly, from universities. Last year, DeVos issued interim Title IX guidance that invited, but not did require, schools to develop procedures with greater protections for the accused. Virtually no schools took her up on her offer; the leadership at many universities made clear they would change nothing unless forced to by Washington.

Any university tempted to defy the new rule’s due process provisions, however, would risk not only adverse action from the OCR but a likely defeat in any Title IX lawsuit filed by an accused student. Schools, in short, will have little choice but to comply.

Accusers’ rights organizations have called for flooding DeVos with comments; presumably they will also sue to block the new regulations if and when implemented. But, barring an unforeseen development, a dramatic shift in how universities handle Title IX tribunals looms.

KC Johnson is a professor of history at Brooklyn College.

Uncategorized

Could False Accusations Threaten the #MeToo Movement?

Post author By saveadmin
Post date January 4, 2019

December 26, 2018 Stacy M. Brown, NNPA Newswire Correspondent, @ StacyBrownMedia

A dozen years ago, Tarana Burke created the slogan, “Me Too.” Burke, a Bronx, N.Y.-born African American civil rights activist, created the saying as a means to help women who had survived sexual violence.

Years later, the hashtag “#MeToo” took off, initially without properly crediting Burke.
The movement also seemed initially to exclude women of color or, in the view of many, disproportionately focus on victimized white women – prompting Burke to passionately tell African American women earlier this year, “don’t opt yourself out of what was started for you because the media isn’t acknowledging your hurt.”

Mostly white actresses in Hollywood have become the public face of the movement and men like Matt Lauer, Charlie Rose, and Les Moonves have lost their high-proﬁle jobs.

The success for proponents has been increasingly measured in terms of the career, stature, title or reputation loss experienced by the growing group of the (mostly men) accused in the media and a much smaller segment of accused that have been charged and/or convicted of crimes.
As some in the movement include Bill Cosby’s conviction on aggravated indecent assault charges as another consequence of #MeToo, the pending charges and trial outcomes against movie mogul Harvey Weinstein remain unsettled.

Cosby’s trials were so adversely impacted by media rhetoric and public perception that the inaccurate reporting of the actual substance was an unsworn-in additional witness against him — including a prosecutor who cited Cosby’s conviction as a centerpiece of his election campaign.

In fact, even though videos have emerged of several professional football players and other celebrities assaulting physically assaulting women in hotel lobbies, elevators and hallways, Cosby may ultimately ﬁnd himself as the sole accused celebrity who serves actual prison time.
Most recently, the movement was also credited for canceled office holiday parties and a growing number of radio stations refusing to play the classic song, “Baby, It’s Cold Outside,” after many claimed that the singer is trying to persuade a woman to stay with him by offering her a drink.

“While it’s critically important that women who’ve been assaulted are heard, we cannot forget about the fundamental right to due process that our great country was founded upon,” said Andrew Miltenberg, one of the nation’s leading due process attorneys.

“This is a dangerous time in our nation’s history, reminiscent of the days of McCarthyism, where a single accusation is enough to end a career. Even baseless charges can ruin a lifetime of work in some situations,” Miltenberg said.

With more than 200 men losing positions and Cosby jailed, some are beginning to look at the movement with a suspect eye.

Actor Sean Penn famously said the campaign has been too black and white and it has divided men and women. Penn also said the movement “is being led by mania.”

He told NBC’s Today Show that he’d like to think that none of it was inﬂuenced by what they call the movement of #MeToo. “I think it’s inﬂuenced by the things that are developing in terms of empowerment of women who’ve been acknowledging each other and being acknowledged by men,” Penn told Today. “This is a movement that was largely shouldered by a kind of receptacle of the salacious.”

When the show’s host, Natalie Morales, asked Penn to clarify his use of the word “salacious,” the actor doubled-down. “Well, we don’t know what’s a fact in many of the cases,” Penn said. “Salacious is as soon as you call something a movement that is really a series of many individual accusers, victims [and] accusations, some of which are unfounded,” he said. “I don’t know the percentages, but I know that there are some lies that have been told publicly about people; I know of some serious omissions. I’m talking about women towards men.”

Actress and former Playboy model Pamela Anderson has also criticized the #MeToo movement.

She has argued that many of the cases stem from actresses taking meetings in hotel suites alone with male executives. Anderson has argued that she’d never go to a man’s private hotel suite for a business meeting alone, particularly if the man answering the door is “only wearing a robe.”

“I think this feminism can go too far,” she said in an interview earlier this year with Australia’s

“60 Minutes.”

“I’m a feminist, but I think that this third wave of feminism is a bore. I think it paralyzes men,” she said. “My mother taught me don’t go to a hotel with a stranger. If someone opens the door in a bathrobe and it’s supposed to be a business meeting, maybe I should go with somebody else. I think some things are just common sense. Or, if you go in, get the job.”

At its best, the #MeToo movement has been a much-needed corrective to the abuses of power, said Attorney Justin Dillon of the Washington, D.C.-based firm of Kaiser Dillon PLLC. “At its worst, though, it’s been an excuse to unfairly ruin people’s lives and reputations without any form of due process or testing of the allegations.”

“There is no #MeToo court [where] you can go to get your reputation back and ﬁling a real lawsuit is prohibitively expensive for most people. Plus, the media often confuses allegations with proof, which is both lazy and harmful,” Dillon said.

Celebrities and business moguls aren’t alone in feeling the brunt of the #MeToo movement.
Even children have been accused.

Nine-year-old New Yorker, Jeremiah Harvey, who is black, was falsely accused of groping and sexually assaulting Teresa Klein, a white woman, at a Brooklyn store.

Klein, later dubbed “Cornerstone Caroline” by social media, called police after she falsely accused young Jeremiah of assault – cameras showed the child never touched Klein.
“I felt humiliated because of the way she was acting,” Jeremiah said in a later broadcast interview.

Historically, false allegations of sexual assault have been a frequent and persistent phenomenon – particularly for black men.

Earlier this year, the 1992 convictions of Van Dyke Perry and Gregory Counts, two African American men, were vacated when the alleged victim revised her story after new DNA evidence was discovered that exonerated the two men.

Of course, the most prominent example of someone paying a high price for a sexual assault they didn’t commit was Emmett Till. Till, who was black and only 14-years old, would never reach his 15thbirthday after becoming the victim of a lynching and murder in Mississippi, igniting the Civil Rights movement in 1955.

In 2017, Carolyn Bryant Donham, Till’s accuser, admitted that she lied. According to a story ﬁ led by Jerry Mitchell for the Clarion Ledger, “… Carolyn Bryant Donham has admitted she lied when she testiﬁed that Till touched her — a lie she repeated to the FBI a decade ago.”
Before Emmett Till, there was the Scottsboro Boys, nine black teenagers falsely accused in Alabama of raping two white women on a train in 1931.

That case was tried in front of an all-white jury and fraught with problems, including lynch mobs, threats of violence and injustice. Modern day allegations have also torn apart college campuses. In a recent Glamour magazine article, “Inside the Organizations that Support College Rapists,”

LillyDancyger writes, “On the other end of the spectrum, [Alice] True [Founder of] Save Our Sons cites a statistic that one in three students found guilty of sexual misconduct through Title IX hearings are in fact innocent—a statistic that comes from a UCLA study that focused on mathematical probability of false accusations without analyzing actual cases.”

The nonprofit Families Advocating for Campus Equality (FACE) notes that many college students have been tried and convicted and have had their reputations and lives torn apart over allegations that haven’t proven true.

According to FACE, at least 200 students claiming to have been falsely accused or found guilty of sexual assault on their campuses, have ﬁ led lawsuits against their colleges, administrators and/or their accusers over the past several years.

Ofﬁcials said there are more lawsuits pending across the country while nearly 100 court decisions have been issued in favor of accused students since 2013.

These lawsuits claim violations of due process, breach of contract and infliction of emotional distress, as well as decisions tainted by gender bias under Title IX, according to FACE’s website.

FACE ofﬁcials said there are many, many more unjustly accused students who have resolved their disputes without legal action or are constrained by college-imposed conﬁdentiality policies, and those whose claims have been settled are almost always bound by conﬁdentiality clauses in their settlement agreements, ofﬁcials said.

And of course, there are those whose futures have been devastated because they did not have the knowledge or resources to challenge the ﬁndings, and their college or university refused to acknowledge their innocence, FACE argues.

Uncategorized

Education Secretary DeVos’s new rules for Title IX and sexual assault will restore fairness across the board

Post author By saveadmin
Post date January 4, 2019

U.S. Education Secretary Betsy DeVos testifies before the House Education Committee on “Examining the Policies and Priorities of the U.S. Department of Education” on Capitol Hill in Washington, U.S., May 22, 2018. REUTERS/Leah Millis

Following the confirmation of Justice Brett Kavanaugh to the Supreme Court, the Senate Judiciary Committee referred several of his accusers to the Justice Department for lying to Congress, reminding us that the importance of taking accusations of sexual assault seriously must be balanced with a presumption of innocence for the accused.

It is precisely that balance that the U.S. Department of Education was aiming for when it recently proposed rules, under its Title IX authority, governing how institutions of higher education and K-12 schools handle students’ accusations of sexual misconduct.

The overarching goal of the rules, which will have the biggest impact on college campuses, was articulated by Secretary of Education Betsy DeVos: “Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”

CLICK HERE TO READ MORE FROM CURT LEVEY.

The proposed rules, which will become final after a 60-day public comment period that will likely result in some revisions, are intended to replace seriously-flawed Obama administration guidance on the same subject. That guidance, issued without public input, gave accused students—nearly always male and, as journalist Emily Yoffe has documented in The Atlantic, disproportionately black—little opportunity to defend themselves despite possible expulsion, rescission of job offers and graduate school admission, and other career-damaging consequences.

The Obama era guidance was the result of lobbying by liberal activists who portray sexual assault on campus as an exploding crisis and insist that all accusers must be believed, while dismissing inconsistencies or untruths in an accuser’s story as the understandable result of trauma – a theme that should sound familiar to those who followed the Kavanaugh saga. The guidance pressured schools to deny basic due process protections to the accused, while also mandating the lowest possible standard of proof—under which a 50 percent chance of guilt means conviction—and defining sexual misconduct so broadly that it infringed on free speech.

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Among the many due process rights commonly denied to accused students were cross-examination of the accuser and other witnesses, which the Obama administration worried could be “traumatic or intimidating,” and access to exculpatory evidence and the details of the charges. More than 200 such students fought back with lawsuits against their schools. In fact, the success of many of these suits is one reason Secretary DeVos made replacement of the Obama guidance a priority.

Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements. These include written notice of the allegations, an opportunity for both parties to review the evidence, the presumption of innocence, the right of cross-examination—subject to the typical “rape shield” exceptions—and an end to the common practice of having a single school official serve as investigator, judge, and jury.

Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements.

The new rules would also allow, but not require, schools to apply the somewhat higher “clear and convincing evidence” standard of proof. Given the severity of the consequences for students found guilty, many critics of campus kangaroo courts would have liked to have seen the rules also allow the “beyond a reasonable doubt” standard, the one used in the criminal justice system, where non-student claims of sexual assault are normally adjudicated.

One might hope that these common-sense reforms would meet with less resistance from the left than other Trump administration policies, given liberals’ championing of due process protections for even enemy combatants and non-citizens residing unlawfully in the U.S. Instead, the Chronicle of Higher Education reports that “Reaction to the regulations was swift, with ranking Democrats in the House and Senate condemning the proposals.” A typical response was that of Senator Kirsten Gillibrand of New York, who tweeted that DeVos was siding with “predators over survivors …betray[ing] her responsibility to the students she’s meant to serve. It’s sickening.”

Sen. Gillibrand and her like-minded colleagues fail to understand that only a fair adjudication process can determine who is the predator and who is the survivor, that DeVos is meant to serve male as well as female students—as is Gillibrand by the way—and that ruining the life of a wrongly accused student is as sickening as an unpunished sexual assault. Yoffe reports that she has “yet to talk to an accused student, even one who was eventually cleared, whose life wasn’t profoundly damaged; every one has told me that at some point he considered suicide.”

The reaction of liberal activists outside Congress was similar. “These changes are designed to flip Title IX on its head and give rights to accused students when Title IX was supposed to be protecting those experiencing sexual discrimination,” said Carly Mee, an attorney for a survivors advocacy group SurvJustice. Putting aside Mee’s mistaken belief that Title IX protects only accusers, it is a shame that critics of the proposed rules see the investigation and adjudication of sexual assault allegations as a choice between protecting women and affording due process to the accused.

As Secretary DeVos points out, “there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.” “Those are not mutually exclusive ideas,” she emphasizes. “They are the very essence of how Americans understand justice to function.”

Curt Levey is president of the Committee for Justice, a nonprofit organization that advocates for the rule of law. Before attending law school, he worked as a scientist in the field of artificial intelligence.