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July 11, 2013

St. Joe's, Title IX, and Procedural Unfairness

An interesting Title IX case was filed earlier this week in Pennsylvania. (You can read the complaint here.)  Brian Harris, a former student at St. Joseph's University, was expelled from the school after he was determined to have committed sexual misconduct. Harris has sued St. Joe's, alleging gender discrimination on grounds that the judicial procedure (and I use both of those words very broadly) afforded to him was all but predetermined to find him guilty.

The events in question occurred last November. The complaint provides text messages showing that a female St. Joseph's student, Lindsay Horst, asked Harris to her dorm room, after a brief delay while she tended to a friend who was drunk at a party. Her text messages implied a desire to have sex, and she wrote that she wanted Harris to "sleep over." The complaint then alleges that the two had consensual sex, that Harris spent the night, and that Harris saw Horst's roommate before leaving the room, without incident, the following morning. There were no witnesses to the intercourse, although, somewhat confusingly, Horst claimed to have had a conversation with another student in the dorm during a brief period in the evening when Harris went to the bathroom. In that conversation, she allegedly claimed to have been pressured to have sex.

In Horst's mind, these events constituted a sexual assault. But despite believing that Harris had raped her, Horst did not report the incident to police, nor is there any indication that she received medical attention or had a rape exam performed on her. Instead, Horst filed a complaint through what passes for St. Joseph's judicial process--in which, according to the university's own wording, "civil or criminal rules of procedure and evidence do not apply," hearsay is allowed, the accused student doesn't have a right to cross-examine any witnesses or to be represented by counsel, and the preponderance of evidence standard is employed.

The complaint alleges that quite beyond these biased procedures, the investigator assigned to the case was predisposed to believe Horst. (At one point, he allegedly compared Harris to former Penn State coach, and pedophile, Jerry Sandusky, and Harris claims the investigator misrepresented what Harris told him.) Indicative of the problems that occur when college procedures deny a right to counsel, Harris never read the report prepared by the investigator of his interview, nor was he able to ensure that Horst's text messages--which at the very least indicated that she had initiated the evening's proceedings--were introduced as evidence.

Under the preponderance standard, Harris was found guilty. He appealed, noting the importance of the text messages--and the appeals process agreed that the text messages were important enough to rehear the case. Incredibly, the tribunal reaffirmed its original decision despite the text messages, and Harris was expelled.

Harris' suit claims that St. Joe's discriminated against him on the basis of gender, thus violating Title IX, in part by constructing a procedure that failed to provide him "with basic due process, including the right to confront and question Horst to test her veracity and credibility"; the right to counsel; and, in general, "providing a disciplinary process that was fundamentally unfair."

St. Joe's thus far has declined comment.

This case raises some fascinating questions--especially if Harris can survive a likely motion to dismiss--which I'll explore in my next post.

Comments (2)

Steven:

I have been through this process - as the accused. It was the 90's and things were not as bad, but it was already a foregone conclusion what the outcome would be.

I'm chiming in here to point out somethings that never seems to get mentioned, and they are of vital importance.

The accused is required to show up to the hearing. You may (depending on the college) be allowed to have a "buddy" - and I brought my lawyer. He was not allowed to ask anything, speak for me, or in anyway interact.

This is critical: You are required to be there, and while you may or may not be required to speak in your own defense, you are certainly screwed if you don't. So, now you have made statements that are COURT ADMISSABLE in a CRIMINAL case while simultaneously being stripped of the protection of counsel.

And this is by design.

Look at how they pick those who will judge you on the Hearing Board. Those picked have almost certainly gone through extensive training in sexual harassment and assault - but entirely from the PC feminist perspective. All the false stats, the one-sided arguments, the echo-chamber knowledge and “common sense” is coming from rape advocates, campus feminists, and those that will back up that point of view. I challenge (and I did during my own hearing board) anyone to find a hearing board member who has heard from an advocate for the falsely accused. When I asked they said “it was covered” by their training – but when I asked deeper they admitted (and were a bit ticked I pointed out) that all of their training was from only one perspective : that women don’t lie about rape, false accusations are statistically miniscule, and all evidence is judged through that lens. They were fine with that – and actually annoyed that I questioned the fairness of such a starting point. I was accused of victim blaming, having no empathy for victims, and not wanting victims to get justice. They said this to me – the accused – and I am sitting there thinking “have you even HEARD of innocent until proven guilty?!” – but they were fine with the frame of reference they held.

On a side note, years later, I checked into what procedures there are for STAFF who are accused of ANYTHING: they get full protection, can have a union rep, a lawyer, etc etc. Apparently that’s their idea of “fair”.

So, the hearing board members are all vetted and certified in feminist Kool-Aid drinking and not impartial at all.

The “investigator” is not there to find the truth, but is often on a “holy quest” to find evidence to “convict”. Any exculpatory evidence is often seen as “victim blaming”, which is unholy taboo.

Any actions you (the accused) take, or attitudes or mannerisms you display are only going to display guilt. What I mean is :
If you are angry (a normal reaction to such an accusation) it shows you’re guilty.
If you’re sad is shows guilt.
If you’re nervous is shows guilt.
If you’re calm (my demeanor) it shows cold calculating thought and shows guilt (what the hearing board said in my case).
Etc etc

Meanwhile the accuser’s attitude, mannerisms, and actions afterwards ALWAYS shows she was telling the truth.

In my case I had the police show up at my dorm room, **6** weeks after this gal and I had sex, and give me 3 documents:
a) a notice I had been accused of sexual assault
b) a restraining order barring me from going near her, and, importantly, barring me from entering certain buildings on campus. Buildings, say, in which I might need to speak to potential witnesses.
c) A notice from housing that I had **1 HOUR** to clear out of my dorm room.
I had, up to that point, an excellent rapport with the police on campus. The officers, save 1, were professional and polite. The one who was not was clearly a man hating individual. Much to their surprise, as I was an older student, and clearly understood the law and ramifications, I volunteered to waive my rights and make a full statement on the spot.

I mention all the above about the police for a very salient point. During my hearing I wanted to call the very police who were there that night I was removed from my dorm. Why? Because in all my statements, to them, later to the school, and later to an ADA that **I** called for help, none of my statement s changed one bit. I wanted the police who had interviewed me that night to tell the hearing board what I had said, to show my story had not changed. My accusers story changed (in greater and lesser degrees, to be fair) every freaking time she told it.

The police officer declined to show up to do so – and the school told me they would not (and I could not) compel the officer to do so. Oh, yea, and in this bizarre world I was dealing with the cop actually DID show up, and testified as to what the alleged victim said, WHILE HOLDING HER HAND, and when I heard the officer’s voice on the tape, I asked them to hold her over so I could question her, and they told me they could not compel her to do so. Under the school rules, with their blessing, and with them defending it, the cop showed up, only testified to what she wanted to, refused to simply repeat what I had said, and held the alleged victim’s hand during her testimony, and then refused to repeat what I had told her or to be questioned by me. The Hearing Board Members saw no problem with this – and later on appeal the school didn’t either.

There are a ton of other details that would blow your mind – and I’m not using hyperbole here – but this isn’t about me: it’s about the process that has been set up.

I can go on – but my main points are:
1) Before you even show up the investigator and hearing board members are already primed to find you guilty. All the people involved have been given pure indoctrination in PC feminist talking points on sexual assault. They are vetted to be “right thinking” – and these are the folk who are judging you.
2) You are required to make statements in order to have even the slimmest chance of staying in school, and those statements are to be given without the protection of counsel, and can be used against you in a court of law in civil and criminal proceedings.
3) The police and witnesses can be compelled by the school to show up, out of threat of sanction, but YOU, the accused, cannot compel anyone to show up to make a statement.
4) Lastly – if you interview witnesses and try to get them to speak in statements that can be damaging to the accuser, you can (and probably will) be threatened with having tampered with the witness and having interfered in the school’s investigation. Yes, seriously.

THAT is the once-over-the-world, without a lot of details, situation any man faces when he’s facing a sexual harassment or sexual assault accusation on a college campus.
Granted : each school is different – but I read too many articles on the FIRE.org website, from Christina Hoff Summers, and from news reports that makes me think that while the window dressing is different, that this is the template on many college campuses today.
You can’t make this stuff up.

I hope I have added to the discussion

Steven

Joanne:

My son is going through the same thing. Were you able to get into another college?

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