The Atlantic "Rape on Campus" Articles

Parent Cafe
141

Here’s an article discussing some options for improving the current system:

http://www.npr.org/2017/09/19/552006625/devos-looks-for-better-way-to-handle-campus-sexual-assault

It mentions 2 task forces, one The ABA’s Criminal Justice Section Task Force on College Due Process Rights and Victim Protections, the other The American College of Trial lawyers; as well as a 3rd option of setting up

“regional centers where professionally trained specialists would investigate and adjudicate allegations.”

The two task forces had some different recommendations, turning mainly on whether the standard of evidence should be increased to clear and convincing; the ABA task force concluded that with other strong protections in place such as

“… students should have attorneys who can actually speak during hearings. Students should also see all the evidence being considered, the task force said, and both sides should be able to do some cross-examination through written questions. The task force recommended against the so-called “single investigator model,” in which the investigator is also the person rendering judgement. And members said cases should be judged by a panel that would have to be unanimous, rather than by any single person.”

that keeping preponderance as the threshold was okay, though it appears they did agree that any panel had to be “convinced” by the evidence.

The ABA task force had input from Laura Dunn of SurvJustice, a survivor advocacy group, as well as Cynthia Garrett of FACE which advocates for the interests of accused students. Perhaps not surprisingly, both said they had received complaints for “compromising” in supporting and crafting the recommendations above.

I think as we see all of these lawsuits, and some colleges have been sued multiple times for allegedly getting these investigations wrong–does it make sense to have one system that all colleges have to follow? I mean, I think that was the intent of the DCL, but the implementation of the guidelines has been the problem. I also think that all colleges should have the same definitions of what constitutes sexual assault.

Going back to the incident in the OP article, I’m not clear that what occurred was an assault at all–but if it was at that school, should it be so at all schools? Or the case at Columbia (https://www.insidehighered.com/news/2016/08/01/federal-appeals-court-revives-title-ix-suit-male-student-challenging-sex-assault), where “Doe wasn’t found guilty of forcing himself on her on the night of the alleged assault, but of having “coercively pressured” Jane Doe over a period of weeks.” If that’s a form of sexual misconduct you can be expelled or suspended for, students and parents should know, and again, if that is sexual misconduct/assault at Columbia, should it also be so at NYU or UCLA?

142

“FSU’s response to Jameis Winston’s accusations (Detailed in Hunting Ground - eventually settled by FSU for close to $1 mill). These are just a few of the cases that are so compelling as to rise to the level of initiating criminal prosecution.”

Winston’s case was a pretty classic he said/she said. No clear evidence. No criminal prosecution.

FSU spent plenty of dough prosecuting that case (including the hiring of a retired Florida Supreme Court judge as an independent arbiter to hear the case in the FSU tribunal). Judge found for Winston, and no criminal case was pursued. Victim sues FSU (for bad processes) but does not sue Winston. FSU pays out $1 million to settle.

There’s never been any finding made on whether Winston did/did not do it. I’d guess that Winston probably did it, but no one could prove what happened. That’s the basic problem. Most rapes can’t be proven under any burden of proof.

143

@northwesty

The FSU response, however, to the intitial 2012 accusation was riddled with problems, failure to follow procedure etc. all of which suggested a cover-up. At least, that is what appears to have happened according to the timeline. I won’t pretend to have knowledge beyond press reports. FSU, according to reports, allowed Ath dept to meet with Winston and lawyers and hid it from title IX officials. They did not “do the right thing” - as the payout suggests. But again, I’m just reading the reports.

But, beyond the 3 other cases I cited, there are dozens and dozens more, just in the past few years. Sexual assault and rape are difficult cases under the best of circumstances, if for no othe reason than the intimate details of one’s sex life are often exposed (and, not to miss that some groups DeVos has met with, like SAVE, think bringing up sexual history of accuser should be fair game.) I don’t think schools have “gotten it right” as much as we might hope.

144

Cali – no one was able to prove whether Winston did or did not do it. Period.

Not even the lawyers who successfully sued FSU and collected $1 million.

That is very often the case. If you don’t have clear proof, your legal process isn’t going to be able to convict. No matter how much amped up Dear Colleague-ing you do.

But Dear Colleague is VERY effective in providing lawyers representing both victims and accused ample grounds for suing the schools. Both victims and accused routinely claim the colleges violated their rights. Sometimes, the college gets sued by both sides from the same case.

It is quite a lawyers’ delight.

145

The Winston case illustrates what is so wrong about the current system.

https://sports.vice.com/en_us/article/wn33gm/the-jameis-winston-rape-lawsuit-has-some-damaging-new-information

Kinsman’s case was mishandled by the University, and had stronger evidence that a rape occurred than many of the Title IX reports that have surfaced in the past couple of years. Whereas some of these males accused on the flimsiest of evidence are marked for life as sex offenders, Winston essentially skated.

146

@northwesty

But again, FSU violated (as far as I can tell) their own policy in order to cover-up accusation. That is not “doing the right thing” any more than Penn State’s handling of Sandusky case was “doing the right thing.”

And again, there were 3 other cases in my posts and many, many more a quick search could uncover.

The letter may well have caused more problem than it solved, but it is equally silly to hope that simply rescinding it does anything more to solve those problems.

Anyone who claims that American colleges have historically “done the right thing” in all rape/assault cases - even clear ones - is not being truthful. At the same time, there have certainly been students very adversely affected by untrue accusations.

The question is how to fix the problem. Returning to pre-letter status quo does not do that.

147

My fix is to stop (as Dear Colleague does) focusing primarily on enhancing the adjudication/litigation processes on campus. Since (even with perfect execution and unlimited resources) most adjudications will still fail to convict. Instead, focus heavily on things that evidence proves do make a difference – bystander education, harm reduction, prevention, supporting victims (regardless of whether their claims can be proven).

And your solution would be what? Hiring more investigators, prosecutors, defense lawyers and judges for college courts? Doubling or tripling the size of the title ix office on campus? If so, you got any evidence to show that would reduce harm?

148

I don’t think the Winston case illustrates much of anything about universities and Title IX - if anything it showed that these local police did a poor job of investigating…but thatis case has been tried and tried and tried in all sorts of settings and I would not say that a chief issue was that the university did a poor job and I would say that the woman did what she was supposed to do if I recall by immediately reporting to the police. This thread is primarily about universities anyway although it is also interesting to discuss what happens in the real world of the police and the courts.

149

@northwesty Dunno if post #146 was meant for me, but I don’t have a solution.

All I know is that what was going on pre-letter, in too many cases, was not working so simply going back to that without additional advise/effort/instruction will just leave each U to figure it out on their own.

@momofthreeboys I don’t really understand that response. If what I have read in the press is correct, the U did not follow proper procedure, the Ath Dept. was given too much leeway to preemptively give Winston (and lawyers) warning without properly notifying Title IX and other U agencies, and the U police seem to have compromised investigation as the alleged victim thought the proper process was underway.

But getting hung up on the Winston case is not the point (I’m happy to surrender on that one, and will again note none of the others I mentioned or many, many others reported over the years are being addresed.)

So, even if the Winston case was properly handled by the U (and I don’t think it was) rescinding the letter with nothing to replace it merely moves us backward, which, in my opinion, is not a good direction.

150

“@northwesty Dunno if post #146 was meant for me, but I don’t have a solution.”

Cali – Got it. You have no solution. Other than to continue to pour money and resources into the Dear Colleague process. Let’s just keep hiring more and more and more lawyers!

But the schools still can’t seem to get the Dear Colleague process right a lot of the time. Despite the huge increase in resources and effort. And I’ve seen zero evidence that Dear Colleague has actually resulted in any harm reduction improvements.

So Dear Colleague seems to me to be a policy that really calls out for some thoughtful reconsideration. Which is what a lot of non-partisan commenters have been saying for years. You should check out the critiques of Dear Colleague that have been coming from many well-known conservative bastions – like the law faculties of Harvard and Yale…

https://www.nytimes.com/2014/11/16/opinion/sunday/mishandling-rape.html

http://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html

DeVos is clearly a partisan hack. But Dear Colleague really hasn’t done much prove-able good. Definitely time to try something else.

151

@northwesty

Uh… I dunno if you purposely misrepresenting what I wrote is supposed to endear me to your position, but again:

DeVos rescinded “Dear Colleague…” without any replacement. I have no problem with coming up with a better solution - from DeVos, you or Donald Trump.

What I think is very clear, however, is that the process in place before the “Dear Collegue…” letter was not working either.

So, I continue to believe that going back to a model that did not work without trying to fix that model, will also not work.

I’m fine with “try something else.” What is that something else that DeVos suggests be tried?

152

Actually I think the perspective of lawyers who litigate these cases can be quite helpful. Andrew Miltenberg who is the leading attorney representing the accused in Title IX litigation against schools appears to approach the issue in a level headed and somewhat practical manner.

If you ask him about campus sexual assault he will recognize that it is certainly a real problem and a significant social issue in general. He does not attempt to muddy the waters by denying that fact. While he states he would rather see law enforcement handle these cases, he also appears to understand the underlying reasons schools investigate and adjudicate these issues – he has publicly stated he would not want his own D’s sharing a campus with an assaulter.

He says he is extremely discerning about the cases that he accepts. In order to accept a case he must believe in the client’s innocence and believe that the school made a significant procedural error or that there was something unfair or muddled about that particular process. After applying those standards he says that his firm accepts less than a third of the clients that seek his services.

Clearly not a long term or permanent solution and one not available to all because of cost, but his firm filters out particularly problematic cases and ensures judicial review of those adjudications. But he says his main objective is not always to seek a reversal of the college’s decision but rather to have the record sealed or redacted upon graduation. I think the advisability of this approach depends very much on the nature of the offense but could certainly work in some cases.

Given the Yale data that documents a high percentage of students choosing an informal complaint track where these issues are resolved without a hearing, a practical approach might well produce solutions that are acceptable to both parties in some cases. Solutions such as no permanent record notation for less serious offenses, accommodation that minimizes physical contact between the parties and additional education for a student who might not fully understand the terms of the school’s conduct code.

153

Dear Colleague really needed to go. It was clearly a failed policy. Plenty of other title ix law and rules existed before Dear Colleague and continue to exist.

I will let this female liberal feminist Commie pinko Harvard law professor do the talking for me:

“The federal government’s decision that Harvard Law School violated Title IX represents nothing more than the government’s flawed view of Title IX law.”

“I believe that history will demonstrate the federal government’s position to be wrong, that our society will look back on this time as a moment of madness, and that Harvard University will be deeply shamed at the role it played in simply caving to the government’s position.”

“I trust that the courts will eventually reject the federal government’s current views."

“The courts’ decisions to date, including the U.S. Supreme Court, show a much more balanced approach to sexual harassment, one which recognizes the importance of vindicating the rights of those victimized by wrongful sexual misconduct, while at the same time protecting the rights of those wrongfully accused, and protecting the rights of individual autonomy in romantic relationships.”

“The law that the Supreme Court and lower federal courts have developed under Title IX and Title VII attempts to balance all these important interests.”

In contrast, “the university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.”

https://blogs.wsj.com/law/2014/12/31/harvard-law-professor-feds-position-on-sexual-assault-policies-is-madness/

154

I was not under the impression she rescinded the letter. It was my impression that she said that this would go through administrative channels. I will go back to her speech and I stand corrected if she rescinded the letter. Whatever the outcome it will not be solely on her shoulders…if anything most legal pundits, both for and against her are saying she did exactly the right thing.

155

I just checked and as I thought she did not rescind the order. There are several articles including the one in the New Yorker that explain the coming notice and comment steps. She also cautioned that it will take time. There’s several reports…here’s two.

https://www.newyorker.com/news/news-desk/betsy-devos-title-ix-and-the-both-sides-approach-to-sexual-assault/amp

https://www.cbsnews.com/news/devos-to-rescind-obama-era-title-ix-order-on-withholding-school-funds-for-assault-inaction/

156

This whole thread is starting to get a little strange. You can get a 100 million verdict in state or federal court in a civil case using the preponderance of evidence standard. Likewise in California you can get a domestic restraining order using the preponderance of evidence standard. However there are some people who insist that alleged college rapists and serial harassers need special treatment to keep predators away from other students in the form of the clear and convincing standard of proof. I think this is called rich male privilege or a sick sense of entitlement on the part of some

157

@momofthreeboys

I actually listened to the speech. And I tend to believe DeVos’ words. This is what she said, per the CBS news link you put right there.

‘Education Secretary Betsy DeVos intends to revoke former President Obama’s 2011 guidelines for schools investigating campus sexual misconduct, she told CBS News’ Jan Crawford in an exclusive interview Thursday.

Noting that DeVos, in a speech just before the interview, had announced the Trump administration would revise the current policy but did not say that she planned to rescind the 2011 directive, Crawford asked the Education secretary, “Are you today rescinding the Obama administration guidelines?”

“Well, that’s the intention, and we’ve begun the process to do so,” DeVos responded. “And as I’ve said earlier, in all of this discussion, it really is a process not an event.” She reiterated, “But it is the intention to move beyond that and move towards a better way.”

“The process is an extended one,” DeVos added, “But it is the intention to revoke or rescind the previous guidance around this.”’

She is, in fact, rescinding it and makes that clear. And as of now, there is nothing in place to replace it.

158

DeVos has pulled back on DOE enforcement efforts offering 'budgetary constraints" as the excuse. This move leaves enforcement of the DCL entirely up to the discretion of the schools until new guidelines are issued.

Ms.DeVos is being badly used by this administration. That will become woefully apparent to her when the next particularly ugly campus assault case hits the press.

159

“You can get a 100 million verdict in state or federal court in a civil case using the preponderance of evidence standard. Likewise in California you can get a domestic restraining order using the preponderance of evidence standard.”

Most of the serious legal analyzers do not think the evidence standard is all that important. Because the evidence standard is only one many aspects of fair due process. But the evidence standard is the thing that the civilian journalists most often focus on. But it is a red herring.

The ABA task force (cited above) says that the preponderance standard is OK if it is part of an overall process that is fair.

“Fair” means things like both sides get counsel representation, counsel from both sides can speak, both sides can appeal, both sides can present evidence, both sides can cross-examine, the fact finder is separate from the investigator, fact finder has to rule by unanimous vote rather than majority.

So long as the fact finder has to be convinced by the evidence, the varying standards of proof matter quite little as a practical matter on what the ultimate finding is.

160

I am not as hung up on what evidential standard is used…I have always been hung up on presumption of guilt and discriminatory hearing practices. I am also opposed to the single individual model where a relatively untrained person acts as investigator, reporter and hearing leader and I am very much opposed to the concept of no legal representation for either party.