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October 16, 2013

Campus Sex Hearings Make Convictions Easier

The government shutdown has brought scant good news, but there's at least one positive development: the investigators at the Office for Civil Rights (OCR) have been deemed non-essential. As a result, OCR has been forced to postpone scheduled inspection visits, including one to Yale.

That said, the shutdown at some point will end, and upon arriving in New Haven, OCR staffers will confirm the existence of sexual assault procedures that might make even Duke's Group of 88 blanch. A dual-track system allows some accusers to select a procedure in which the accused student doesn't have a right to present evidence of his innocence. At least one Yale professor is being secretly monitored by his department chairman--even though he neither had an opportunity to defend himself against a claim of sexual harassment, nor was informed that such a claim was even filed. And the university has broadened the definition of sexual assault to such an extent that according to Yale, the campus grounds have a much higher rate of violent crime than cities such as Detroit or Baltimore.

A Poor Job by Mainstream Media

The renewed assault on campus due process began more than two years ago, with the OCR's "Dear Colleague" letter. The development attracted a good deal of attention from FIRE--and among readers of Minding the Campus--but it largely did not seep into the mainstream media. That condition changed, however, in light of OCR's more recent overstep (the University of Montana "blueprint"), which generated widespread attention to the agency's anti-due process attitudes. Meanwhile, three lawsuits--against St. Joe's, Vassar, and Xavier--sought to hold colleges accountable for denying due process to their students. According to a court document filed last month, the Vassar lawsuit is already in settlement talks. (Richard Pérez-Peña in the New York Times, who's always eager to champion Title IX accusers, still hasn't mentioned the Vassar lawsuit. Might it disrupt the preferred narrative?)

In this environment, campus advocates against due process might well have paused, to reconsider their course. Members of the mainstream media that previously had functioned as virtual stenographers for the accusers also might well have reconsidered their course. Instead, if anything, the reverse has occurred. Occidental caved in to protesters. The articulation of Montana's final policy aroused considerable concern among civil libertarians. And then there's a recent case from Emerson College, in Boston.

3-2 Vote Establishes Guilt

The outlines of the story are familiar: a handful of accusers complained that a college disciplinary process (described by neither the Boston Globe nor the Huffington Post, which have covered the story in greatest detail) that's already tilted against the accused student in fact is so biased against accusers that it merits a Title IX complaint. (Accused students at Emerson can be represented by an attorney only if the lawyer is a member of the student's family; a student can be found culpable by a 3-2 vote, with each of the three guilty findings coming by a preponderance-of-evidence threshold.) Faced with negative publicity, the administration quickly issued an apology and promises to review the procedure, presumably to make it even less friendly to due process.

But the Emerson case has some unusual twists. The story revolves around the experiences of a 19-year-old named Sarah Tedesco, who alleges that she has been raped three times since going to college. Both the Globe and the Huffington Post portrayed events entirely from Tedesco's viewpoint, and gave no indication of an attempt to interview the students that Tedesco accused, their attorneys, or Emerson investigators. So readers have to believe that Tedesco was not only wholly truthful about her own experiences, but also that she has accurately represented the behavior of local police and campus investigators.

In the event, according to the version offered by the accuser, Tedesco first was raped at a party at MIT, by an MIT student, and then (at the same party) by an Emerson student. She (appropriately) reported the incidents to Cambridge police, but was discomfited by the sorts of questions that the police asked. Nonetheless, according to the Globe, the police launched an investigation. Neither the Globe nor HuffPost give any indication of attempting to interview the Cambridge Police to get their version of events or to ask about the criminal investigation.

Raped Three Different Times?

At some point, Tedesco ceased cooperating with the police--in part, it appears, because she didn't like the nature of questions male police officers were asking her, in part (she claims) because an Emerson official urged her to file a complaint through the college instead. She did so, but despite Emerson's very lax standards for conviction--as long as three of the five members of the disciplinary panel believe it's more likely than not the accuser is telling the truth, the accused student is branded a rapist--the student that Tedesco accused was found not culpable. As the proceedings were occurring, Tedesco claimed that the same student raped her again. It does not appear that she filed any charges--criminal or college disciplinary--regarding this incident. Nor, of course, could her complaint against the MIT student be considered by Emerson, since the alleged rape occurred outside the Emerson campus and the alleged perpetrator wasn't an Emerson student.

Tedesco's treatment led her to file a Title IX complaint against Emerson. But it's hard to imagine precisely how Emerson's procedures could be reconfigured to make them more likely to produce a culpable finding. Does Tedesco believe, for instance, that conviction should result as long as two of the five members of the college disciplinary panel believe that it's more likely than not the accuser is telling the truth? As long as one of the five do so?

As a result, both Tedesco and her champions have seized upon the Emerson administrator's urging her not to go to the police as reflective of the college's alleged indifference to sexual assault. Wrote the self-described "tenured radical," New School professor Claire Potter, "if raped, the college is not your friend, and every administrator you meet is tasked with protecting the college from a lawsuit. Their procedures are intended to sweep what happened under the rug make this bad thing go away, contain the damage, and eliminate as much evidence as possible that might be used to prove them liable. [ . . . ] Know that any and all college procedures are crafted with the knowledge that the longer a rape report is delayed, the more likely it is that the student's only option will be a university coverup campus disciplinary hearing." (Strike-outs in original.)

A Post 'Riddled with Errors'

To give a sense of just how extreme Potter is on matters of campus sexual assault: in 2007, the day before the falsely accused Duke lacrosse players were publicly exonerated, Potter published a wild post asserting that the lacrosse players, part of a "semi-criminal youth gang," had engaged in a "pattern of ingrained, anti-social behavior"; claiming that false accuser Crystal Mangum had been "physically if perhaps not sexually assaulted"; and imagining a past in which people were "being targeted by team members for violence, either on the streets or at team parties (and do we think that women have not been raped at Duke lacrosse team parties?)" When challenged on her bizarre musings, Potter without explanation deleted her post, but then and thereafter refused to apologize or even to acknowledge that she had posted an item riddled with factual errors.

Even if Potter is almost a caricature of the "tenured radical," readers of her most recent offering might be forgiven a case of whiplash. Until the Emerson Title IX suit, campus anti-due process "activists" focused not on encouraging accusers to go to the police, but instead on establishing a parallel college system that made conviction easier. Indeed, having accusers go to police appeared to be the last thing the activists wanted, as Stanford law professor Michele Dauber explained when her institution adopted a new sexual assault policy that decimated the due process rights of accused students. Since the local prosecutor's office does "not tend to bring charges in college acquaintance rape cases," and rape prosecutions in her university's county are "extremely rare," Dauber reasoned that universities needed to weaken due process protections for the accused. Indeed, this law professor(!) celebrated the university's decision to eliminate such "mock trial" like aspects as ensuring that an accused student has the right to cross-examine his accuser.

Perhaps the emergence of an ideological contest between the likes of Potter on the one hand and Dauber on the other implies that eventually the anti-due process movement will focus on arguing among itself rather than promoting policies that deny due process to college students. And perhaps, eventually, OCR will be run by a civil libertarian. But until then, there's no indication of a breaking in the anti-due process fever that began with the "Dear Colleague" letter. 

Comments (1)

Adam:

Good piece.

As the parent of a very handsome 12 year-old boy (the girls are already calling him), I'm considering alternatives such as on-line education or education abroad. If I send him to a typical American college or university, a single jealous, angry or mentally unstable girl/woman could ruin his life.

I doubt I'm the only parent of a male child who is worried about this. If there were all-male institutions, I'd be more likely to send him.

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