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SHORT TAKES


November 26, 2012

Wendy Murphy Comes to the University of Virginia

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.

Comments (8)

Anon:

This is such a one-sided hit job with an agenda. First Johnson is a hack for FIRE, which he didn't disclose.

Yes Murphy was on the wrong side of the Duke Lacrosse case. She also predicted Casey Anthony would get off and that Sandusky would get convicted. She never represented anyone in these cases so was not privy to the case details as Johnson would like to imply. There isn't an attorney out there that hasn't guessed wrong on a public case.

Murphy represents the victim in UVA case. She knows the facts and there's much more to the story than Johnson would like anyone to believe. He takes quotes completely out of context. His real gripe is that of all the colleges, they hate the OCR/Dept of Education and the Dear Colleague letter. Basically Johnson believes that the standard of proof in college adjudications should be as high as those in a criminal court, "beyond a reasonable doubt". Arne Duncan (Education Secretary), a very reasonable man disagrees and has lowered the standard to the "preponderance of evidence" a standard used in civil courts because the punishment meted out in civil courts is more commensurate to punishments doled out at colleges. It's not like you go to jail if a college panel finds you guilty.

Colleges have been getting away with covering up rape for years and are now being forced to address it. Yet despite overwhelming evidence UVA rigged this particular case violating the victim's civil rights. Johnson finds this unfair to the accused because he believes most rape victims lie and falsely accuse people. UVA has not expelled ANYONE for rape/sexual assault in over a decade if ever and yet they have no problem in expelling tens of cheaters every year. The stats tells you the story of the blatant discrimination against female students.

KC Johnson:

To the Anon:

A few responses to your comment, for which you appear to have lacked the courage even to post in your own name.

I did not "disclose" I am a "hack" for FIRE because I am neither a "hack" nor anything else for FIRE. I am a professor of history at Brooklyn College.

(I often have praised FIRE's actions, but it's not clear to me why I needed to refer back to other posts I had done on FIRE in a post that I did on Murphy.)

You write, "Basically Johnson believes that the standard of proof in college adjudications should be as high as those in a criminal court, "beyond a reasonable doubt'." Could you point to a post of mine where I ever have written this? You write, "He believes most rape victims lie and falsely accuse people." Could you point to a post of mine where I ever have written this?

My criticism of Murphy is not that she was on the "wrong side" of the lacrosse case. It's that she repeatedly made factually inaccurate statements (as well as erroneous statements of law) that she has never corrected or retracted. I could care less what she predicted would happen.

I was not aware that "Murphy represents the victim in UVA case." Are you suggesting that a trial has occurred? If not, how could Murphy represent the "victim"? She represents, as I noted in the post, the accuser.

Thank you for your . . . insightful . . . commentary.

Connecticut Lawyer:

Anon,

If you think there are facts in this case that prove guilt, why don't you tell us what they are?

Leaving this particular case aside, do you honestly think that a process that denies the accused counsel, the right of confrontation (cross examination) and the right to call witnesses is fair? In what sense? In what country? Forget about the burden of proof issue for the moment. This is matter of basic due process - people accused of wrongdoing should have the ability to mount a defense. The right to cross examine a complaining witness is the heart of it. You compare these proceedings to civil cases, but you won't even give the defendant the basic rights he would have in a civil case.

Then we turn to the question of why colleges should be handling rape cases at all. Rape is serious crime, a felony for which the penalty is a lengthy imprisonment. What expertise do colleges have in investigating serious felonies? If a murder or armed robbery took place on campus, and a student was suspected of committing the crime, do you think the school should investigate it and administer academic punishment, or should they turn it over to the proper authorities? What's the difference with rape? Why are schools investigating felonies? They should refer all these charges to the cops. Period.

PaulV:

Anon, As you admit Murphy represents the party that lost. You both see upset that Due Process applies to the states now under the 14th Amendment. Murphy misrepresented the facts 20 plus times in the bogus Duke Lacrosse case and has no credibility. What is your problem with a fair inquiry into the facts?

Christopher Halkides:

Wendy Murphy's writings on the Amanda Knox/Raffaele Sollecito case were not as egregious as her writings on the Duke lacrosse case, but what she did write was bad enough: terrible misstatements of fact that could easily have been corrected by anyone, let alone a supposed professional. There may be other examples as well. What is wrong with her actions has nothing to do with her ability to predict the outcome of any particular trial. She simply has no interest in determining the facts of any case, from what I have seen.

At FIRE, Cathy Young wrote, "Nearly two years ago, in February 2010, University of North Dakota student Caleb Warner was thrown out of school with a three-year ban on reapplying after a campus disciplinary panel found he had violated criminal laws by sexually assaulting a fellow student. In fact, Warner was never actually charged with a crime in the justice system -- but his accuser, Jessica Murray, was." Maybe it would make more sense to look into their objections that to postulate a connection between them and Dr. Johnson.

Anon:

Professor, you are ignoring the elephant in the room. Nobody is questioning the rights that the accused or any accused has under the law. You're argument is flawed because the only people who are being violated are the victims. Whatever you believe or think about the case in question is irrelevant because you don't know the facts. However, we all know that Colleges have a terrible record in this area. UVA in particular. They have never expelled ANY student for sexual misconduct. As for the police and the prosecutor they have yet to prosecute a UVA student for rape or sexual assault. This is not an accident. This is a policy. The prosecutor knows how to prosecute rapists and even non-UVA rapists that rape UVA students, but those rapists that are prosecuted are never UVA students! What does this tell you? Basically male UVA students are exempt from prosecution and from expulsion!!!! Hence, despite the case in question where the victim refers to a Nurse that changed findings it reaffirms the notion that UVA always covers up these cases.

This might not be the MO of all colleges but many of them protect their male students in different ways and using different methods. So despite the change in the standard imposed by OCR, that you seem to abhor, in practice that standard is not being applied as it should be. So why you think its prejudicial to your beloved male population is an enigma in itself.

You can ONLY complain if and when the standard is applied and applied in a way that diminishes the rights of an accused. Until then you are shadow boxing as the scale is totally in favor of an accused and totally rigged against a victim.

lazlototh:

Anon, your statement says it all:
"You're [sic] argument is flawed because the only people who are being violated are the victims." You've started with the assumption that the accusers are necessarily victims, and convicted the accused. No wonder you don't like the result and love the flawed process. Then again, your statement is accurate in one respect - the falsely accused are victims and their rights are being violated.

Connecticut Lawyer nails it: what is a college or university doing handling a rape case? Rapists should be punished in accordance with the law. From what I see, the school's processes are far more likely to result in poorly handled (and therefore tainted) evidence, mishandling of witnesses, and lots of other errors that are likely to lead to an inability to prosecute a rapist criminally if the case actually ends up there. I see no justice in that.

Steve White:

It's not just Duke Lacrosse, Murphy actually was a prosecutor and wrongly convicted people in a scenario that was never credible. She's got a long history of not caring about innocence in her attacks. Who knows why. It's really shameful she's a law professor.

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