The Office of Civil Rights' mandated procedures for investigating sexual assault are tilted heavily against the accused party. The institution can hire "neutral fact-finders" who produce the equivalent of a grand jury presentment, deny the accused an advisor of his choice, add witnesses that the accused student does not request, forbid the students from cross-examining his witnesses, and judge the student according to a 50.00001 percent preponderance of evidence standard, an approach that mocks even the pretense of due process.
It is remarkable, then, that one such accused student at the University of Virginia was exonerated of the charges brought against him. Unfortunately, what happened next was unsurprising.
The accuser hired an outside attorney--none other than controversial victims' rights lawyer Wendy Murphy--and filed a complaint with the Office of Civil Rights. Murphy's argument, as expressed to c-ville.com, comes close to saying that a failure to convict amounts to an OCR violation. "The preponderance standard is simple," she told the newspaper. "When her accusations are deemed credible, and his denials are not described with the same glowing terminology, she wins." But under the UVA system, the investigators (serving as the equivalent of a grand jury) have the authority to deem an accuser's claims "credible." For the OCR even to consider such an absurd claim would be highly problematic.
The second disturbing element of this story comes from the article itself. Penned by Graelyn Brashear, the article often appears as little more than a press release for Murphy. Even though the accuser publicly reiterated her allegations through a posting on Murphy's facebook page--which Brashear notes, was "widely circulated among students," c-ville.com kept her identity secret.
Nor does Brashear inform her readers about what the UVA procedure actually entails. Beyond referencing the shift toward a preponderance of evidence standard (which the reporter comes close to celebrating, describing universities lacking the standard as "holdout schools," even as she notes concerns from FIRE and the AAUP), Brashear doesn't reveal that accused students can't have an attorney cross-examining witnesses, that the university considers the equivalent of a grand jury or the police as "neutral," or that the university is willing to abandon even a circumscribed right to cross examine regarding some witness statements. Given that most people outside the academy (indeed, most academics) have little knowledge about the details of campus due process, it seems likely that readers of Brashear's article came away with the belief that the campus judicial system resembles not the Kafka-like system envisioned by the OCR but instead the Law and Order rules that most citizens at least somewhat understand.
Most troubling, here's how Brashear described Murphy: "Wendy Murphy, an adjunct professor at the New England School of Law and a frequent media commentator on issues of women's rights, has a reputation as a firebrand. 'I'm an activist with my feet in the courts,' she said. Her battle cry is blunt: 'The law is designed to facilitate and perpetuate violence against women and children,' she said."
Virginia is a member of the ACC, and, of course, Murphy has some experience with handling allegations of sexual assault at an ACC school. In the Duke lacrosse case, the ubiquitous media commentator repeatedly made false statements of fact about the case (nearly 20 of them in 2006 alone) coupled with myriad unsubstantiated claims and bizarre interpretations of law. These statements weren't made in secret--and they received widespread attention, including from the American Journalism Review.
Yet Brashear mentions none of this, and instead treats Murphy as a wholly credible figure. Imagine, for instance, if the intro paragraph had at least acknowledged that Murphy had a record of playing fast and loose with the truth on claims of campus sexual assault: "Wendy Murphy, an adjunct professor at the New England School of Law and a frequent media commentator on issues of women's rights, has a reputation as a firebrand, although in at least one high-profile campus matter, the Duke lacrosse case, she repeatedly misstated both factual items and questions of law, always in such a way that favored the accuser in that case."
Such a portrayal, it seems, isn't what cville.com thinks its readers should receive.