Friday, July 25, 2014

Off-topic: Great Quote

“I have come to the conclusion that one useless man is a disgrace, that two become a lawfirm, and that three or more become a congress.” - John Adams

". . . his attorney urged him to accept a plea deal because a jury likely would not side with a black man accused of raping a white teenage girl"

Story here.  Echoes of Brian Banks' case -- yet another black man is guilty by reason of skin color and gender.

DALLAS (Reuters) - A 57-year-old Texas man who spent 12 years in prison for rape was exonerated on Friday, with legal experts saying his case marked the first time someone has been cleared of a crime by DNA testing that was not requested by the convicted person.

Michael Phillips was released from prison in 2002 and prosecutors said his innocence was proven through a new program by the Dallas County district attorney's office to analyze untested rape kits, even if the defendant does not make a request.

"Untested rape kits should not just sit on a shelf and collect dust. The exoneration continues to expose the past weakness in our criminal justice system,” Dallas County prosecutor Craig Watkins said in a statement.

According to the National Registry of Exonerations, Phillips' case marks the first time in the United States an exoneration of this nature has occurred. The group said the case became the 34th exoneration by the Dallas District Attorney's Conviction Integrity Unit.

Phillips was exonerated at a hearing on Friday. The actual culprit in the 1990 rape of a 16-year-old girl was identified through the DNA testing but cannot be prosecuted because the statute of limitations has expired, officials said.

The man lived in the same motel as Phillips and the victim.

Philips was identified in a lineup by the victim and said his attorney urged him to accept a plea deal because a jury likely would not side with a black man accused of raping a white teenage girl, the National Registry of Exonerations said.

After his release in 2002, he spent an additional six months in jail for failing to register as a sex offender. During that time, Philips challenged his conviction in court but when that failed, he gave up trying to clear his name.

He has been living in a nursing home, wheelchair bound from sickle-cell anemia.

"I never imagined I would live to see my name cleared. I always told everyone I was innocent and now people will finally believe me,” Phillips said in a statement.

Under Texas law, Phillips is entitled to $80,000 compensation for each year of wrongful conviction plus an additional $80,000 each year for life.

Cathy Young nails it. Again.

"The charge that feminism stereotypes men as predators while reducing women to helpless victims certainly doesn’t apply to all feminists—but it’s a reasonably fair description of a large, influential, highly visible segment of modern feminism."

Read the entire piece here.

Gender crazies make it official: the truth is 'victim blaming'

In its continuing efforts to right gender inequities, the enlightened pundits of Cosmopolitan -- whose previous work includes such hard-hitting pieces as "Guess the Olympic Bulge" -- are taking on the most formidable monster they've ever battled: the truth. Cosmopolitan and other gender zealots are having a conniption over "offensive" posters at hospitals and colleges that carry the slogan "one in three reported rapes happens when the victim has been drinking." Cosmo says these posters "go against" initiatives that battle "persistent myths" about rape, and that the posters are rightly condemned "for shifting the blame onto victims and clearly failing to point out that in fact, three in three rapes happen when a rapist decides to rape someone."

First, the fact that at least a third, and likely a lot more, rape victims drink at the time they are assaulted is not a "persistent myth," it is an indisputable fact, just as the sky is blue and water is wet, whether Cosmo likes it or not.

Second, the posters do not "blame" victims, excuse rapists, hate women, or, for that matter, advocate that the American League scrap the designated hitter. They provide useful information, and we do our daughters no favors hiding it. Dr. David Lisak's research shows that the vast majority of campus rapists -- 80.8% -- report raping victims who were incapacitated because of drugs or alcohol. That is a staggering percentage, and our kids need to hear about it because (1) it's a lot easier to spot and nab rapists when you know their modus operandi, and (2) our daughters ought to know they the are most vulnerable when they drink themselves to oblivion. But the PC police want to sweep it under the rug because they resent the fact that our daughters, but not our sons, are being told they need to be careful about doing a fun thing like drinking themselves to incapacity. (I, for one, am all in favor of telling our sons not to do it, either.) The gender zealots seem to detest any anti-rape efforts except the kind that tell "men" not to rape. Claims of rape advocates notwithstanding, Dr. Lisak also says that mild educational efforts telling men not to rape don't stop the predators who commit the vast majority of rapes.

Third, are young women really so stupid that they need a poster to tell them that rape happens "when a rapist decides to rape someone"? Cosmo and like-minded advocates hold a pretty damn dim view of our daughters.

It is well to wonder if we will ever have a mature discussion about sexual assault when the public discourse is so terribly dominated by PC groupthink tainted with a radical feminist sensibility. We are stranded in an era where calling for due process in rape cases (see herehere and here) is considered "victim blaming." So is calling for people to keep an open mind when it comes to rape accusations, and preaching safety, and failing to treat a false rape claim as if it were an actual rape, and calling for men and boys accused of sexual assault to be anonymous. They use the term "victim blaming" so loosely it means nothing at all. And the folks who scream "victim blaming" the loudest are often are at the forefront in rushing to judgment to assume the accused is guilty based on nothing more than an accusation. See here and here.

The lunacy at work here is self-evident. If feminists wonder why even Barbara Walters recently refused to embrace the "feminist" label, they ought to start condemning over-the-top efforts like this one. Telling a rape victim she "asked for it" is victim blaming; pointing out a fact that could spare countless young women from being raped is not. The vast majority of people who don't spend big chunks of their day dissecting gender issues understand this. It's time to weed out the loons who don't get it before they do any more harm to our daughters.

Wednesday, July 23, 2014

Huffington Post's Tyler Kingkade says FIRE's advocacy in sexual assault case led to harassment of sexual assault witnesses

UPDATE: 12:46 PM: FIRE has responded to the Huffington Post with details that we didn't know. This makes the Huffington Post's reporting on the case all the more alarming: http://www.thefire.org/public-records-and-the-occidental-sexual-assault-controversy/ 
________________________

Several months ago, FIRE went to bat for a former student of Occidental College who was expelled  in connection with an alleged sexual assault. The expelled student sued the school. Here is how FIRE describes the case:
Under pressure from the federal government to take action on sexual assault, and in the wake of a multi-plaintiff lawsuit from attorney Gloria Allred last year, Occidental College has found a student “responsible” for sexual assault despite the fact that police refused to charge him with any crime and text message evidence indicates that both parties consented to having sex.
According to FIRE, the accuser was counseled by an Occidental professor "who, according to the accuser, said that Doe 'fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was "from a good family."'"

Police investigated, and concluded that "both" of the students were drunk but willing participants who exercised "bad judgment." Most importantly: "It would be reasonable for [the male student] to conclude based on their communications and [the accuser’s] actions that, even though she was intoxicated, she could still exercise reasonable judgment.” In text messages exchanged leading up to the encounter, the accuser asked the male student, “do you have a condom,” and she texted another friend “I’mgoingtohave sex now” [sic] These and other text messages, FIRE wrote, "make clear that the accuser had conscious knowledge of what she was doing."

Nevertheless, Occidental expelled the student. NCHERM's president, feminist Brett Sokolow, recently scolded his many college clients for wrongly charging male students when students engage in mutually intoxicated sex because such action constitutes sex discrimination. Based on the information FIRE has reported, the Occidental case would appear to be a textbook example of that.

Now, FIRE has come into the crosshairs of Huffington Post's Tyler Kingkade, who says that FIRE posted online a "confidential investigator's report" that contained the names of witnesses supporting the accuser, and that a "stranger from Powersite, Missouri" apparently used that information to email a harassing message to one of the witnesses. Kingkade claims: "Since FIRE's publication of the report on June 4, at least four of nine witnesses named in the document have received harassment online. One now plans to transfer to another school."

The investigator's report is part of the case file pertinent to the male student's suit against Occidental. It is unclear how Kingkade obtained the alleged harassing emails. In the male student's case against Occidental, Occidental finally sought to seal portions of the lawsuit, presumably including the report that contained the names of witnesses, but its motion was denied last month. The judge stated: "I don't understand why [it] is so pressing in June when it wasn't so pressing in February." Accordingly, despite Occidental's and Kingkade's claim that the report is confidential, Occidental itself waived any claim to confidentiality by failing to do enough to preserve the document's supposed confidentiality.

Regardless, Kingkade's implication is clear: FIRE's act of posting the report that included names of witnesses leaves witnesses vulnerable. Kingkade concludes by quoting FIRE:
Robert Shibley, FIRE senior vice president, declined to remove the investigator's report from his group's website for the same reason he supported the judge's denial for sealing portions of the lawsuit. "The public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case," Shibley said in an email to HuffPost. 
"I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case," Shibley said. "As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity." 
The public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case," Shibley said in an email to HuffPost. 
"I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case," Shibley said. "As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity."
It is well to note that Kingkade's "reporting" has been heavily criticized in some quarters for its hostility to due process when it comes to college men accused of sexual assault. Prof. KC Johnson previously wrote that Kingkade's coverage of the Occidental case was "almost comically biased." According to Prof. Johnson: "In Kingkade’s telling, all that’s at stake in these lawsuits are admitted rapists who are claiming that while they committed a sexual assault, the college violated some sort of technicality and they should get away with it." FIRE previously has criticized Kingkade for presuming guilt in a sexual assault case. We wonder if Mr. Kingkade has been stung by FIRE's criticisms and, instead of answering them directly, uses these alleged emails to attack FIRE for doing something that even the court refused to hold was improper.

Mr. Shibley's mastery of the First Amendment is beyond dispute. The cost of freedom is sometimes high, and FIRE's support of the First Amendment does not make it an accessory to harassment. The alleged emails certainly might be criminal in nature if they intimidate witnesses or interfere with the fair administration of justice. We hope Occidental pursues action if it is legally warranted, but FIRE is no more responsible for the acts of the persons who sent the emails than it is for the criminality of any other person.

Beyond that, there appears to be a double-standard in the reporting. If posting the name of a rape accuser or witness is akin to shouting "fire" in a crowded theater that is not deserving of First Amendment protection (I am certainly not saying it is), posting the name of a man or boy accused of rape is an even louder shout, but folks like Mr. Kingkade do not seem at all concerned about them. For rape claims, the accusation becomes its own conviction in the court of public opinion because it is often nearly impossible to undo even the most far-fetched rape claim (that's because of the he said/she said nature of the claim). Legion are the cases where presumptively innocent men and boys -- who sometimes turn out to have been wrongly accused -- have suffered unspeakable atrocities due to the vile stigma of the claim. We have reported on many in this blog. But I am not aware of a single instance where anti-rape advocates or progressive reporters, and that includes Mr. Kingkade, blamed a newspaper or a blog for publishing the name of the accused in connection with any such attack.

If it is ridiculous to suggest a newspaper could be culpable in those cases, it is all the more absurd and unjust to suggest FIRE is responsible for the alleged emails here.

Report of Sexual Assault by Tattooed Man in Alpine False, Detectives Say

San Diego Sheriff’s detectives Friday said the initial account of a woman who claimed to have been sexually assaulted by two men earlier this month was false, though they are still investigating the case.

Monday, July 21, 2014

Prominent Title IX complainant who says her college ignored her sexual assault supports the lawsuit of a male ex-classmate who claims the school denied him due process when it expelled him for sexual assault

When it comes to the way colleges handle sexual assault, this is how broken the system is:  a woman who brought a highly publicized Title IX complaint against her college for ignoring her sexual assault is supporting the lawsuit of a male student who is suing the same college for depriving him of his due process rights after he was accused of sexual assault in an unrelated incident.

You read that right. At Swarthmore, Mia Ferguson was one of two students who filed a highly publicized Title IX complaint and publicly claimed that the school ignore her alleged sexual assault. In an unrelated incident, less than two weeks after Ferguson's claim was publicized, Swarthmore administrators reopened an an old complaint it had previously investigated and closed that was filed against a male student in connection with two sexual encounters he had with a classmate in 2011. The young man was expelled.

Let's look briefly at the young man's case. According to the young man's attorney, neither of the alleged sexual encounters that gave rise to the claim against him  involved intercourse, and the two students later had sex, which the accuser admitted she initiated. She didn't report the alleged assaults for 19 months. The school investigated for two months, interviewing both the accuser and the accused multiple times, before closing the case in January 2013 without filing disciplinary charges. Then Ferguson's claim was publicized, and the young man's attorney said the school was determined to make an example of him. That's when the case was reopened. He was a "whipping boy" that Swarthmore needed to demonstrate its own zero tolerance standard, his attorney claims.

Sadly, there's nothing unusual about young men being used as sacrificial lambs to appease the Department of Education. It's happening at many places. What is unusual is this, according to the Philadelphia Inquirer: ". . . the man's lawsuit has picked up some unlikely support - from Ferguson, whose Title IX complaint last year made her one of the campus' most outspoken victim advocates. She said the school's past policies offered decent grounds' for the legal action, regardless of whether he is guilty of sexual assault. 'The school handled it so poorly,' she said. 'At the end of the day, it's on the school for letting this lawsuit happen.'"

The views of Ferguson -- a Title IX complainant and a woman who claims she was sexually assaulted -- stand in stark contrast to the views espoused, for example, by the angry feminist professor who mocked the young men who've sued their colleges alleging due process violations. "These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape." It would difficult to concoct a more hateful, dismissive comment -- and she actually teaches young men at her college.

This illustrates two indisputable points:

First, when it comes to protecting students from sexual assault and from unfairly being punished for sexual assault, it's not an either/or proposition or a zero sum game. Everyone benefits when the school protects students by aggressively weeding out rapists -- so long as it is done fairly. To ignore the due process rights of the accused undermines both fairness and the perception of fairness. When a school is perceived as being unfair, even when it acts properly in expelling a rapist, it's decision is suspect and will lack public confidence. That's not good for anyone. Balance is critical. That's why we need voices who will maturely and reasonably address the issues, not gender zealots who refuse to entertain even the possibility that schools aren't treating young men accused of sexual assault fairly.

Second, the system is broken. When will the Department of Education realize that? While we don't know the specifics of the Title IX complaints, we've seen enough to conclude that there is something wrong with the way many colleges handle sexual assault complaints. We do know more about the due process complaints filed by the young men and can attest that many schools are not treating the accused fairly.

What's the solution?  Many believe that rape claims ought to be handled by experts in law enforcement. But given the current cultural climate, it's not remotely possible that the Department of Education would allow schools to turn all claims of sexual assault over to the police and then have nothing more to do with them. One compromise position seems to be gaining traction. Law professor John Banzhaf posits:
. . . one solution well worth trying, suggests Banzhaf, would be to have separate impartial bodies set up jointly by many colleges in a city or geographical area for the sole purpose of investigating and adjudicating date rape complaints. Unlike individual colleges, they would be able to employ full time trained investigators following established investigatory protocols to impartially get to the bottom of such claims. 
Moreover, by using retired judges and others trained to evaluate evidence, they could better and more fairly - free from any possible biases - determine the truth much better than professors of computer science or geology who today often make up the disciplinary panels on many campuses.
Swarthmore is one of the schools headed in that direction, according to the Philadelphia Inquirer:
Under pressure for its handling of sexual-assault cases, Swarthmore College turned to an outsider to oversee them: a retired Pennsylvania Supreme Court justice.

The college last fall hired Jane Greenspan, who has decades of experience as a trial and appeals judge and who now works as a professional mediator and arbitrator.

"They wanted a neutral person, not connected to the college or the students," Greenspan said. "I just listen to them and try to make the correct decision, as I would in any arbitration."

Swarthmore previously used a panel of faculty, staff, and students to rule on the cases.

The Swarthmore job was Greenspan's first appointment by a college to preside over sexual-misconduct hearings. Experts say such models are rare but likely to become more common as schools look to satisfy concerns that they mete out justice fairly.

"One way or another, schools are going to professionalize it," said Brett Sokolow, president of the National Center for Higher Education Risk Management, based in Malvern. "They'll either do it themselves or more and more, they'll outsource it to firms like ours or to judges."

Sokolow said he has recommended for years that colleges exclude students from judicial boards in sexual-misconduct cases. Inclusion of students deters some victims from coming forward, he said.

Nearly two-thirds of area colleges that responded to questions from The Inquirer said students have seats on their boards. But some schools, including Drexel, said they were reconsidering that policy.

At Rowan University, students are not included on boards hearing sexual-misconduct cases.

"That is primarily to protect the confidentiality of the victim and the accused," said Melissa Wheatcroft, associate general counsel at Rowan.

To Swarthmore, Greenspan brings the in-depth knowledge of what standards, such as "preponderance" of evidence, mean. That's the standard colleges must apply to find a student guilty. It simply means more than a 50 percent chance the crime occurred.

She declined to say whether she agrees with the standard, but noted, "It's a very low bar."

Greenspan presides over the cases and determines guilt or innocence, but she doesn't impose the sanction - the school decides on that.

She declined to comment on Swarthmore's system.

"I know Swarthmore has worked very hard to get it right . . . with everyone's interest in mind, the rights of the accused and the victim," she said.

She also declined to discuss any of the cases she has handled or even provide a number, except to say there were a few.

Swarthmore hasn't committed to continuing to use an outside arbitrator. Its process, the college said, is under review.

"We continue to look closely at the array of best practices around the country for the fair, appropriate, and impartial adjudication of sexual assault and harassment cases," said Alisa Giardinelli, Swarthmore spokeswoman.

Sunday, July 20, 2014

Phila. Inquirer: 'College backlash and a difficult balancing act on sex assault'

Article found here.

He called it consensual. She called it rape.

Their college, Swarthmore, acted decisively.

He was expelled.

Those spare facts make up the little that the parties can agree upon in a lawsuit working its way through federal court in Philadelphia.

The young man at its center - an honors student and former high school class president identified in court filings only as John Doe - says he was wrongfully accused and found guilty of sexual misconduct by a school eager to quash criticism that it did not take assault allegations from female students seriously.

"To correct one wrong - its past unresponsiveness to female complaints - [Swarthmore] committed another wrong against John based on his gender," his lawyer, Patricia M. Hamill, wrote in court filings. "He was a male accused of sexual misconduct at the wrong time and in the wrong place."

With universities across the country under pressure from victim advocates, government regulators and even the White House to respond more aggressively to sexual assaults on their campuses, several, including Swarthmore, are also facing lawsuits from male students who say the pendulum has now swung too far in the opposite direction.

And in a new wrinkle, many of those suing - including former students at St. Joseph's and Philadelphia Universities - are pursuing sex-discrimination claims under Title IX, the federal law better known for its role in protecting women's rights on college campuses.

Experts say the legal tactic is too new for them to determine whether it will stand up in court.

A federal judge in Philadelphia recently dismissed one male student's Title IX claims against St. Joseph's University, saying the plaintiff had failed to show that gender bias drove his expulsion for sexual misconduct.

A judge in Ohio, however, allowed a similar claim to proceed, saying the student might be able to demonstrate that the process set up to hear misconduct cases at Xavier University was unfairly stacked against men.

But the proliferation of these legal fights has sparked further debate on what part academia should play in policing a crime shrouded in conflicting accounts, often with no witnesses.

"We're constantly in a balancing act," said Melissa Wheatcroft, associate general counsel at Rowan University, "making sure victims are taken seriously and protected, and at the same time, protecting the rights of those who are accused."

Brett Sokolow, director of the Association of Title IX Administrators, bluntly warned in a newsletter this spring that some male students may have been improperly penalized.

"Some boards and panels still can't tell the difference between drunk sex and a policy violation," he wrote. "We are making Title IX plaintiffs out of these men."

45 minutes

Consider the case of Anthony Villar, who was finishing his junior year at Philadelphia University when he was expelled.

He sued the school in May, three months after a disciplinary board composed of one faculty member, one student, and one administrator concluded he had assaulted his ex-girlfriend sexually.

By all accounts, Villar and his accuser had dated for two years before the night of the alleged assault. Hours after they had sex, the couple dined at her parents' house and stayed to watch a movie. She invited him back the next day.

Only after Villar admitted to his girlfriend that he had cheated on her with another woman did she tell school authorities she had been raped, said his lawyer, William Spade.

The disciplinary board took less than 45 minutes to find Villar guilty of sexual misconduct and expel him.

Under school policy, Spade was barred from aiding Villar at the hearing. Acting on his lawyer's advice, Villar chose not to participate.

"The accused can't really participate meaningfully at a hearing like that if he's under police investigation," Spade said.

But if Villar's suit seeks to make a stand on behalf of men accused of sexual assault on college campuses, his accuser's lawyers have responded with equal breadth and force.

"Anthony Villar wants to set a precedent that any woman who comes forward and claims she is sexually assaulted can now be sued in federal court," they said in court filings.

Lawyers for Philadelphia University contend Villar fundamentally misunderstands the issues.

"Villar's lawsuit suggests that during an internal administrative disciplinary process, he was entitled to the rights of a criminal defendant," wrote school lawyers James A. Keller and Joshua W.B. Richards.

The university's very quarrel with that, Spade says, is exactly the problem.

Lack of access

Villar's complaints against the university's disciplinary process echo those voiced in several of the Title IX suits filed against schools such as Vassar, Duke, Columbia, and Delaware State.

All cite a lack of access to lawyers and, in some cases, the chance to cross-examine their accusers.

Others question the makeup of disciplinary boards, which are frequently composed of some combination of administrators, faculty, and students, who rarely have backgrounds in sexual assault, investigative technique, or the law.

Many of the suits take issue with a 2011 mandate from the U.S. Department of Education that campuses lower the standard of proof needed in sexual-misconduct hearings.

Colleges now use a "preponderance of the evidence" standard in sexual-misconduct cases, meaning that an assault was more likely to have occurred than not. In contrast, the criminal justice system requires proof beyond a reasonable doubt for a conviction.

But underlying the complaints common to each of the lawsuits, one question lingers: Given the potentially life-altering ramifications of a sexual-assault accusation, why have colleges taken on the responsibility of investigating in the first place?

"If universities are going to hear these cases and make conclusions about whether or not felony crimes occurred, they need to provide as much due process as possible," said Robert Shibley of the Philadelphia-based Foundation for Individual Rights in Education.

Obama task force

Assault victims can - and often do - report campus rapes to police. But for many, notifying college administrators of their assaults offers an alternative to the laborious and not always successful process of the criminal justice system.

Schools are not required to report rape accusations to police against a victim's wishes. But they must include any reports they receive to the federal government in annual crime statistics.

Department of Education guidelines and a series of U.S. Supreme Court decisions over the last 30 years cemented colleges' responsibility to investigate all reports they receive by casting failure to do so as a form of sex discrimination.

Within that framework, school administrators say they are doing their best in what has recently become an increasingly pressured environment.

In recent months, Stanford, Harvard, Columbia, and Dartmouth Universities have all faced student protests and federal complaints that they failed to adequately investigate or assist sexual-assault victims.

Earlier this year, President Obama commissioned a task force to investigate the problem and last month proposed new rules to "ensure that disciplinary proceedings . . . are prompt, fair, and impartial."

In April, the Department of Education announced it was investigating 55 colleges including Swarthmore, Temple, and Pennsylvania State University.

Few colleges have grappled as publicly with the issue as Swarthmore.

A highly selective college of 1,500-plus students in Delaware County, it became a flash point last year for anxiety surrounding the handling of sexual assaults on its campus.

The college's student newspaper published a series of articles featuring women who said they felt revictimized by the college's failure to take their complaints seriously.

Students scrawled complaints about sexual assault in chalk around campus. And when those protests disappeared, activists accused administrators of attempting to hide the problem from prospective students and their families.

A formal Title IX complaint filed that spring by Hope Brinn and Mia Ferguson, two students who said they had been sexually assaulted and then ignored, only stoked the outrage. They alleged that the college's inaction amounted to a form of discrimination against women.

It was in that environment that the student known in court filings as John Doe says he became a scapegoat.

Though his identity is known to the court, the man filed his suit against Swarthmore in January under a pseudonym.

His lawyer, Hamill, declined to identify her client or make him available for an interview, saying he hoped to avoid any further damage to his reputation. Hamill also declined to comment on the case.

Court filings, however, make clear the man's belief that Swarthmore's concern over its reputation ultimately led to his expulsion.

'Clear inference'

Less than two weeks after Brinn and Ferguson's highly publicized Title IX complaint went public, Swarthmore administrators informed the man, an aspiring law student from Durham, N.C., that they had reopened a complaint filed against him nearly a year earlier.

It centered on two sexual encounters he had with a classmate in 2011. While neither involved intercourse, the two later had sex, which the woman said she had initiated.

When she reported him to Swarthmore's administrators 19 months later, she said that the two earlier sexual encounters had been coerced.

The first time around, the school investigated for two months - interviewing both the accuser and the accused multiple times - before closing the case in January 2013 without filing disciplinary charges.

When the school reopened the case that May - six months after the woman came forward and two years after the alleged assaults occurred - administrators seemed determined to make an example of him, Hamill contends in the suit.

At his disciplinary hearing, members of the board were overcome with emotion as the woman testified, Hamill said.

When it was her client's turn to address them, one member interrupted his presentation to ask about the alleged victim's welfare, according to the suit.

Doe's accuser declined, through an intermediary, to comment for this story.

Hamill contends that in handling the case, Swarthmore departed from its stated disciplinary policies.

"The clear inference to be drawn from the panel's extraordinary conduct . . . is that the panel had predetermined that [she] was the victim and John was the victimizer," Hamill wrote. "John was the whipping boy that Swarthmore needed to demonstrate its own zero tolerance standard."

Swarthmore has denied those allegations and maintains that its disciplinary process complies with federal guidelines.

The college continues to examine its policies to ensure fairness to all involved, said Nancy Nicely, Swarthmore's vice president for communications.

In the last 15 months, the school has done away with the setup that led to Doe's expulsion.

Instead, a retired state Supreme Court justice hired by the school now hears all sexual-misconduct cases, rather than a disciplinary board. The college determines punishments for those found guilty.

"Swarthmore has worked tirelessly to . . . turn this college into a model of proactivity in preventing, addressing, responding to, and adjudicating sexual assault and harassment," Nicely said.

Still, the man's lawsuit has picked up some unlikely support - from Ferguson, whose Title IX complaint last year made her one of the campus' most outspoken victim advocates.

She said the school's past policies offered "decent grounds" for the legal action, regardless of whether he is guilty of sexual assault.

"The school handled it so poorly," she said. "At the end of the day, it's on the school for letting this lawsuit happen."

___________________________________

Who should judge campus cases?

Under pressure for its handling of sexual-assault cases, Swarthmore College turned to an outsider to oversee them: a retired Pennsylvania Supreme Court justice.

The college last fall hired Jane Greenspan, who has decades of experience as a trial and appeals judge and who now works as a professional mediator and arbitrator.

"They wanted a neutral person, not connected to the college or the students," Greenspan said. "I just listen to them and try to make the correct decision, as I would in any arbitration."

Swarthmore previously used a panel of faculty, staff, and students to rule on the cases.

The Swarthmore job was Greenspan's first appointment by a college to preside over sexual-misconduct hearings. Experts say such models are rare but likely to become more common as schools look to satisfy concerns that they mete out justice fairly.

"One way or another, schools are going to professionalize it," said Brett Sokolow, president of the National Center for Higher Education Risk Management, based in Malvern. "They'll either do it themselves or more and more, they'll outsource it to firms like ours or to judges."

Sokolow said he has recommended for years that colleges exclude students from judicial boards in sexual-misconduct cases. Inclusion of students deters some victims from coming forward, he said.

Nearly two-thirds of area colleges that responded to questions from The Inquirer said students have seats on their boards. But some schools, including Drexel, said they were reconsidering that policy.

At Rowan University, students are not included on boards hearing sexual-misconduct cases.

"That is primarily to protect the confidentiality of the victim and the accused," said Melissa Wheatcroft, associate general counsel at Rowan.

To Swarthmore, Greenspan brings the in-depth knowledge of what standards, such as "preponderance" of evidence, mean. That's the standard colleges must apply to find a student guilty. It simply means more than a 50 percent chance the crime occurred.

She declined to say whether she agrees with the standard, but noted, "It's a very low bar."

Greenspan presides over the cases and determines guilt or innocence, but she doesn't impose the sanction - the school decides on that.

She declined to comment on Swarthmore's system.

"I know Swarthmore has worked very hard to get it right . . . with everyone's interest in mind, the rights of the accused and the victim," she said.

She also declined to discuss any of the cases she has handled or even provide a number, except to say there were a few.

Swarthmore hasn't committed to continuing to use an outside arbitrator. Its process, the college said, is under review.

"We continue to look closely at the array of best practices around the country for the fair, appropriate, and impartial adjudication of sexual assault and harassment cases," said Alisa Giardinelli, Swarthmore spokeswoman

'False rape' caused Myanmar riots

As reported here:

YANGON - Myanmar's latest religious clashes began after a Buddhist woman was paid to make false rape claims against two Muslim brothers, state media reported Sunday.

Two men -- a Buddhist and a Muslim -- died in riots in the country's second city Mandalay that flared on July 1 following social media reports that the Muslim men had raped a Buddhist employee at their tea shop.

More than 20 others were wounded as violence rocked the city for several days, the latest in a series of religious clashes that have bedevilled the former junta-run nation for two years.

But a police investigation found the woman was paid to fabricate the accusation against the men, the New Light of Myanmar reported.

The report, citing the Ministry of Home Affairs, said a medical examination of the woman -- named as Phyu Phyu Min -- found "no sign of rape or other violence".

"After a detailed investigation she confessed that she accused the two men because she was paid" to do so by two other people who apparently had a personal dispute with the tea shop owners.

The woman has been arrested alongside one of the people alleged to have paid her, the report said.

The unrest, which saw a curfew imposed as security forces moved in to disperse angry mobs, again spotlighted the incendiary nature of relations between Myanmar's Buddhists and the Muslim minority.

Buddhist-Muslim clashes have left at least 250 people dead and tens of thousands displaced since fighting broke out in Myanmar's western state of Rakhine in 2012.

Most of the victims have been Muslims. Violence has often erupted as a result of rumours or individual criminal acts.

While Mandalay has a sizeable Muslim minority and also plays host to a group of nationalist Buddhist monks, it had not suffered religious unrest on such a scale before.

Radical Buddhist monks have been accused of fanning tensions, with Mandalay-based hardline cleric Wirathu posting a link to the rape allegations just hours before the unrest broke out.

The deadly religious flare-ups have prompted warnings that the country's fragile transition to democracy could be imperilled.

Responding to the rioting, President Thein Sein said "serious action" would be taken against those involved and hinted that hard-won media freedoms could be compromised if unrest continued.

Jessica Valenti's brand of hate should not be tolerated in polite society

Jessica Valenti is an extremist pop feminist writer who is prone to write things about men that are, by any measure, hateful, irrational, and indefensible. See here. Her shtick is to preach to the choir of like-minded gender extremists, so there is nothing remotely resembling balance, nuance or even-handedness in her blather. The things she writes are not worthy of serious refutation, and feminists concerned about their brand ought to denounce her and her kind of 1970s' gender get-evenism.

Valenti has hit a new low, even for her. She off-handedly ridicules the efforts of three mothers who started Families Advocating for Campus Equality (FACE) that seeks to raise awareness about the injustices faced by presumptively innocent college students accused of sexual misconduct. Each of the three founders of FACE has been touched directly by campus rape injustice: their sons were ensnared by it.

So, of course, for extremists like Jessica Valenti, FACE is bullshit; the three women who started it are rape apologists; their sons are, of course, rapists.  Read what Valenti tweeted (her hate-filled snark is at the end the message):


"Not My Nigel" is radical feminist shorthand to suggest that women who defend their male loved ones accused of rape or similar acts are defending rapists.

Valenti almost certainly doesn't know the first thing about any of the three cases she's ridiculing. But, you see, that's Jessica Valenti's specialty: writing about things she knows nothing about.

Saturday, July 19, 2014

Links

We needed to add to our links on the left side of the page. We've added a bunch. Take a look.

Friday, July 18, 2014

Public interest law professor John Banzhaf: college men trying to reclaim due process rights

Still Another University Sued Over Rape Ruling // Judges May Soon Determine Procedures

An Amherst student is suing his college over its sudden determination to withhold his degree, and to rescind his fellowship just before graduation, even though the school had previously readmitted him following its own earlier investigation

Jul. 12, 2014 - WASHINGTON, D.C. -- This sudden reversal of its previous 2009 decision apparently occurred because the accuser “had recently called the college to express dissatisfaction with the handling” of the case, the lawsuit said.

So far, more than a dozen similar legal actions have been successful, and more than a dozen are now pending, says public interest law professor John Banzhaf, who first spotted the trend. Because so many of these law suits involve allegations of violations of Due Process, judges may soon begin determining exactly what procedures are required by the Constitution, taking these controversial issues out of the hands of both legislators and college administrators, he predicts.

"The Supreme Court has determined that judges - not legislators or regulators - have the final say in determining under the Constitution which procedural protections a person is entitled to, and has set forth a formula which requires that judges consider both the seriousness of the loss to the accused and the importance of the procedural protection for preventing that loss," says Banzhaf.

So, for example, if the accused faces little more than a order from the college preventing him from contact with a complainant, he is entitled to few protections. But, if he is to be expelled or prevented from graduating, the school must provide far more procedural protections, especially those which have been proven to be tremendously effective at preventing wrongful convictions.

In date rape proceedings, it seems quite likely that a court would rule that the accused must be granted the right to cross examine - what has been called the “greatest legal engine ever invented for the discovery of truth” - since there is often little if any evidence upon which to find guilt other than the words of the accuser. Indeed, given the seriousness of a wrongful conviction, and the skill needed to conduct a successful cross examination, courts may well rule that a student accused of date rape must be permitted to have his own attorney cross examine the complainant, says Banzhaf.

Banzhaf had successfully predicted that, as colleges were pressured by the federal government to increase the number of date rape convictions, male students would begin fighting back with legal actions.

He recently reported almost a dozen cases in which male students taking legal actions against their universities were successful. For example:

■ BROWN I - she didn’t remember the event, he said the sex was consensual, but was found guilty; was reported on TV as case of “When Yes Means No”; case settled by university
■ BROWN II - student charged the school interfered with his efforts to clear his name because of pressure from accuser’s father, an influential alum and a major donor; lawsuit settled by university
■ CENTRAL COLLEGE OF IOWA - After being forced to sue, two accused students have reached a private settlement in the case of an alleged rape
■ DENISON - accused passed lie detector test, was found guilty anyway by university, sued on ten different legal grounds including violation of rights; case settled by university
■ DUKE I - famous case involving lacrosse players, law suit charged conspiracy to fame players, and was settled by the university for an undisclosed amount
■ DUKE II - judge very recently prohibited university from expelling a student convicted of rape, because of alleged pressure on the campus tribunal to get tough on rapists
■ GEORGE WASHINGTON - was forced to settle a case where a former student sued the school for allegedly unfairly convicting him of sexual assault
■ HOLY CROSS - school policy held male responsible if both parties were drunk; university’s “responsible” finding was overturned; he was returned to school with no adverse mark on transcript
■ IOWA STATE - District judge issued a stay preventing university from booting accused from his team, after questioning the thoroughness of the university's investigation
■ OCCIDENTAL - order of stay granted by the court when the student complained about improper procedures and definitions used in the campus proceeding which convicted him
■ SAINT JOSEPH - federal judge upheld lawsuit brought by male student against university, a university employee, and even the female complainant, under several novel legal theories
■ UNIVERSITY OF THE SOUTH - jury ruled university was negligent in a case that found a student guilty of sexual assault, saying that it did not follow its own published procedures
■ XAVIER - judge upheld a law suit, based upon many different legal theories, by a male student against his university which had earlier found him guilty of rape; university then settled

Meanwhile, law suits filed by students convicted by their universities of rape and/or sexual assault are pending against Bucknell, Cincinnati, Columbia, Delaware State, Depauw, Drew, Kenyon, U of Michigan, Philadelphia U, Swarthmore, Vassar, Williams, and perhaps others.

Many more such legal challenges are likely to be brought as pressure from the President, several federal agencies, women's rights organizations, and individual women and groups on campus result in more findings of guilt where they may not be warranted by the facts and/or because the procedures used did not protect the accused student's rights, says Banzhaf.

A detailed study of campus sexual assaults suggests that they may have already cost colleges and universities more than $100 million, and the huge costs are almost certainly going to balloon as the Administration continues to pressure educational institutions to convict more students, notes Banzhaf, who was one of the first to point out the growing number of male students fighting back by going to court and/or videotaping their sexual encounters.

According to a Risk Research Bulletin put out by insurance company United Educators [UE], student-on-student sexual assaults - which UE termed “a perfect storm” of "alcohol, mental health, and sexual violence" - cost its members more than $36 million in losses from 2006-2010.

Since the UE represents only about 1,200 educational institutions - including independent schools and public school districts, as well as colleges and universities - and because the number of complaints and campus adjudicatory proceedings exploded only after that time period, it is likely that the sum of losses at all colleges and universities to date is much higher and will continue to grow, suggests Banzhaf.

Contact
GWU Law School
202 994-7229 / 703 527-8418
jbanzhaf@law.gwu.edu