Alsimon2, thanks. You are right. The 85 percent number bugged me the first time. 
I am giving you credit now for those calculations.
Well, how about that! Justin Dillon (the attorney quoted upthread in the article about Penn) is my law school classmate. We were teaching assistants together for Larry Tribe’s con law class. Good for him.
I dunno if you want to say that the Oregon basketball case is 50/50, but if you do, that’s a case where the same guy was accused twice. Oregon is the second school he was suspended from for sexual assault. There is not enough money in the world to pay the lawsuit from a hypothetical third accuser at his third college.
The issue I have with the Oregon case is that even though drunk women sometimes do voluntarily and enthusiastically agree to have sex with three guys at the same time in a bathroom at a party, that’s not something most women, even most drunk women, would want to do. So if you are about to have that kind of sex with a woman, you should make damned sure she consents. (It’s kind of like BDSM-- some people enjoy it, but many do not, so you’d better make damned sure, and then more power to you both.) I don’t see affirmative consent in the guys’ descriptions of the activity. They assume that having sex with her is what she wants, and they think taking her phone away from her is a little joke, but she does not seem to think those things. The part about, “X, do you want to do this?” seems to be totally lacking.
From the Penn article and so absolutely true. I also think the comparison to divorce court is spot on. People can be absolutely vicious to each other if they are angry by doing things and saying things they would never say under normal circumstances and embellishing the truth to support their claim. It cuts both ways.
The guys in the Oregon case were suspended for code of conduct violations.
A guy was kicked off the Duke basketball team for similar reasons.
Maybe this keeps sexual assault charges off their long term records? Of course, the players names are in the paper.
I believe one of the Oregon guys transferred and is playing basketball somewhere else. Since the names of the athletes were released, another violation is a lawsuit waiting to happen.
Yes. Third chance if Austin takes the chance.
No convictions.
“The issue I have with the Oregon case is that even though drunk women sometimes do voluntarily and enthusiastically agree to have sex with three guys at the same time in a bathroom at a party, that’s not something most women, even most drunk women, would want to do. So if you are about to have that kind of sex with a woman, you should make damned sure she consents.”
Agreed. In my cases, consent was readily plausible. (The participants were either dating or close friends.)
The more I hear about your cases, Hanna, the fishier they seem.
Perhaps this might be a useful bit of data - Hanna, if I might ask: Were the names of these boys publicized in any way? Assuming they weren’t, wouldn’t it be fair to say that publicity would be these boys’ worst nightmare?
IME, I think the cases that receive any publicity are a distorted subset. Maybe that’s why the fact pattern of Hanna’s cases seems unusual.
No, I don’t think that their names were publicized anywhere. They also don’t have any confidentiality deal with their accusers or their families, so that could change if someone wanted to name them. IMHO, if they were allowed to stay at their schools and graduate but their names came up in a sexual assault Google search, that would probably be worse than the position they are in. Which is one reason I’m being exceedingly careful not to share details.
I should add that I don’t really know that there are more cases out there like this. It’s possible that I’m seeing everyone. But it’s a big country and I’m not really a national name, so my best guess is that if I get two in one year, they aren’t that weird. Do we think it’s rare for friends/intimate partners to commit rape without leaving any physical evidence? Do we think it’s rare for young people’s relationships and one-night stands to go horribly sour and lead to either traumatic misunderstandings or the desire for revenge? I suspect that both those things happen pretty frequently in a country with about 20 million full-time-enrolled college students in any given year. And if both those things are happening, you’re going to get he-said/she-said assault cases that put colleges in an awful bind.
If this is true, then forming opinions and trying to figure out policy based on these distorted cases may not be the way to go.
I am including myself in this. 
The roommate section of Drew Sterrett’s filing (which starts at point 111) is especially hair-raising. The roommate who was awake on the top bunk testified that the sex was consensual, as close to a third party eye witness as you could get. Yet his testimony was downplayed then misconstrued by the adjudicator. according to the filing).
http://www.avoiceformalestudents.com/wp-content/uploads/2014/06/Drew-Sterrett-Complaint-against-University-of-Michigan-Ann-Arbor.pdf
In reading the filings of students who feel they were wrongfully penalized (often expelled), the witness issue comes up over and over: the committee or adjudicator refuses to admit the accused’s witnesses, refuseds to include exculpatory texts/emails, refuses to allow the accused to question statements of the accuser or her witnesses. This is a common thread that runs through most of these cases, and I think an argument for the unfairness of college hearings.
I’m not sure that we can say at this point that cases objecting to Title IX committee decision are in decline. According to the database kept by A Voice for Male Students, 27 new lawsuits were filed in 2014 (many in the second half) and of these 7 were settled, most in out of court.
As the OCR investigations proliferate and resisting colleges are forced to toe the line, I expect we will see more, not fewer, wrongfully accused suits. Not completely out of the question is the possibility of an expelled student challenging the legality of the OCR’s authority to mandate these procedures in the first place.
Maybe momrath. I’m hoping that the ones that have been settled with so far most in favor of the accused that colleges will amend their capricious behavior. The Sterrett case is extensive and his case is well documented with sufficient evidence that UofM misbehaved. It could also be a fairly large settlement which might be a strong warning shot because the U really, really screwed this kids life up. If I were Sterrett’s lawyer or his parents after the settlement I’d go after the accuser’s parents in civil court if the lawyers felt there was a case. Regardless it’s a tragic case. I sincerely hope this kid wins millions and enough millions that it gains national attention and strikes fear in the hearts of university presidents who think it’s OK to to have sacrificial lambs to gain favor with the federal government. She’s graduating. He’s on his second year of waiting to restart a college engineering education somewhere comparable to UofM. Can you put a cost on that…I could…and it’s a very large number
There is no contradiction between “90% of accusations are true” and “you go in not favoring either side and there is no objective evidence to help you decide.” Both of those can be true at the same time. That is, we must not confuse what the evidence allows us to conclude with what is actually factually true.
When we are faced with a particular accusation, in order to find the person guilty we need evidence that this guy did it. In the case of rape, we know that it can be difficult to prove-- we know that there can easily be cases where the accuser was raped, but she can’t bring enough evidence to prove it.
For that reason, it is a perfectly legitimate and defensible hypothesis to believe that there are a lot of cases where the EVIDENCE is 50/50, but the ground truth is that the guy did it. These are cases where we can’t convict the guy, but he did it.
In my opinion, it is unlikely that considering all the cases where the EVIDENCE is 50/50, half of these accused guys are actually innocent. In doing the computations al2simon and I did, we need the proportion of cases where the guy actually assaulted the women. Al2simon used 50% for that number. In my opinion, that is ridiculously low. If you assume that there are a lot of false accusations where a guy is accused once, you will also believe that there are a lot of false accusations where a guy is accused twice. The error here, in my opinion, is assuming that half of accusations are false.
This was in today’s Brown Daily Herald. The accused in one of the PhiPsi related assaults was again found not responsible on appeal. Would be interested in opinions on the decision:
http://www.browndailyherald.com/2015/03/06/student-found-not-responsible-sexual-assault/
"The SCB wrote in its findings that the complainant’s incomplete memory of the event did not allow her to effectively counter the alleged assailant’s testimony that she consented, Meisel wrote.
The woman appealed the decision, citing the “dangerous precedent” set by not adequately taking into account the memory loss that accompanies the ingestion of date-rape drugs, according to the letter.
But in his appeal decision, Meisel wrote that, because no new evidence had emerged, he remained unable to call for a rehearing of the case — even if he were to give the greatest possible weight to the complainant’s “flash memories.”
I think this may be because the evidence that the accused was actually given GHB is now inconclusive. If they had conclusive evidence of drugging, no doubt she would have been found to be incapacitated and he would have been found responsible? Important to add here that the man accused of assault is NOT the same man accused of allegedly spiking the drink. Two separate incidents. But then later in the article:**
"The SCB’s finding of not responsible relied heavily upon its conclusion that the accused student may not have known the degree to which the complainant was incapacitated.
The night of the incident, the complainant had been drinking, was “having trouble with unlocking a door” and needed “to lean against the wall,” Meisel wrote in the letter, recapping her testimony.
The accused student’s descriptions of the night “indicate that he recognized you had been drinking to some degree,” Meisel wrote to the complainant. “The question is whether the visible presentation of your stumbling could or should have led (the alleged assailant) to infer that … your level of intoxication was past the point at which it would have been reasonable to assume you were capable of giving consent.”
The complainant’s testimony of being “unable to respond, move or consent” during the sexual act was at odds with the alleged assailant’s account of “sustained activity and responsiveness throughout the sexual encounter,” Meisel wrote."
comment from a student task force leader
““This is an atrocious Catch-22 that the University has put itself in where they say that because her memory was flawed, because she was incapacitated, that she can’t provide any sort of alternative testimony,” Byron said. “But yet somehow, she was … still able to give clear and convincing consent. You can’t have both of those things.””
So the accuser indicates she believes she was drugged, and she has only flash memories where she does not believe she consented. The accused admits she was acting a little drunk, but indicates she was an active participant. There do not seem to be any other witnesses to her state of sobriety, and we have read of a case or two in the past where the accuser claims no memory but multiple witnesses and the accused say she seemed drunk but also to know what she was doing (like Jane Doe in the Oxy case for example, texting, saying repeatedly she was fine, sneaking out of her room, etc).
What would your decision have been in the above case at Brown? Do you think the GHB evidence being inconclusive is a big factor in the decision or not? Or does the GHB not even enter into it because the alleged assaulter is not the alleged drugger?
When I said that I thought Hanna’s cases sounded fishy, I apparently left a wrong impression. I should have been much more clear and I apologize. Let me rephrase.
**It sounds to me like Hanna’s two cases are examples where guys were unjustifiably found culpable when there was not enough evidence for them to be found culpable. ** I agree that she can’t possibly have found the only two guys who were unjustifiably convicted, and there must be others out there like them.
About the Brown case, in order for the guy to be guilty we have to conclude either that she was drugged by him, or that a reasonable sober observer would have thought she was too drunk to consent. Evidently they can’t prove that she was drugged by him. So we have to see if he should have known she was too drunk to consent. Her memories are not helping us there-- the issue is her behavior at the time, not how much she remembers now.
So in order to convict him, Brown would have to prove (by preponderance) that her behavior at the time indicated she was too drunk to consent. They can’t, so they must find him not responsible.
This is one of the many cases where I’d find the guy not responsible even though I think he did it. I think he’s lying or deluding himself, and I’d have to let him off.
“There is no contradiction between “90% of accusations are true” and “you go in not favoring either side and there is no objective evidence to help you decide.” Both of those can be true at the same time.”
That’s right. I have no trouble believing that a lot of accused walk free because of a lack of evidence, and even less trouble believing that a lot of victims never speak up in the first place.
So now that Hanna has convinced me that some (unknown number of) colleges are expelling some guys on what I believe to be insufficient evidence, I have to figure out how I think about this and what if anything ought to be done about it.
I know that some among you say that because (by hypothesis) some colleges are convicting based on insufficient evidence, we should stop these suspensions and expulsions entirely except in the cases where there is a criminal conviction. I say, there’s a lot of babies in that bathwater. You’d be stopping colleges throwing out guys based on insufficient evidence, but you’d also be stopping colleges throwing out guys based on sufficient evidence. Do you really want those Oregon guys to stay on campus? Isn’t there a better way to solve this problem, like tightening up due process requirements?
More of a meta-comment than anything, but I wanted to say that I’m a bit bothered by the not-infrequent conflation of “most cases are not reported” and “false accusations almost never happen”? They may well both be true, but I don’t see how one being true or false clearly leads to the veracity or falsehood of the other.