Friday, August 29, 2014

Since no one can say what constitutes "consent" under the new California law, it must be invalidated

The California legislature has passed SB-967 Student safety: sexual assault, the infamous "affirmative consent" bill. This has prompted a national conversation about "consent" and sexual assault, but it seems nobody writing about it has the first idea what they are talking about. I don't say that lightly.

The question is, what evidence of "consent" is necessary to satisfy California's new law? The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent: “Your guess is as good as mine," she said. I don't know about other lawyers in the audience, but if I'm challenging the constitutionality of this law, I am going to cite that statement.

The law is not a guessing game. A statute proscribing conduct is supposed to put the public on clear notice as to the conduct that is forbidden. William Lawrence Clark et al, A Treatise on the Law of Crimes at 59 (1996). This is a component of due process. “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223 (1951). A law that does not meet that standard is unconstitutionally vague. Laws governing sex can't be free-floating standards of purported wrongdoing and should never punish criminality “in the air.”

Cue feminist writer Tara Culp-Ressler, who has written perhaps the most asinine piece on the subject of consent I've ever seen. She chides critics of California's "affirmative consent" law who are concerned about what constitutes legal consent under the law. She essentially tells them that it doesn't matter: so long as the woman is happy, she won't accuse you of rape. Here is what she wrote:
The people who are worried about affirmative consent standards are typically preoccupied about the people who may be penalized for failing to ask questions every step of the way. What if a college student starts passionately kissing his girlfriend without getting her permission first? What if a couple enjoys explicitly consensual foreplay and then moves on to intercourse without a verbal agreement beforehand? 
But those hypothetical situations aren’t necessarily breaches of an affirmative consent standard. If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later. So if college students are worried about protecting themselves from being penalized, it’s not hard — all they have to do is stick to engaging in physical contact with people who are clearly receptive to it at the time.
Wrong, Culp-Ressler.

"Consent" is an agreement, free of duress, that is evidenced by a party's outward manifestations. It's not enough to say "you're safe if the woman is subjectively happy." A trier of fact must be able to examine evidence of alleged assent at the time of the act to determine if a reasonable person in the position of the person seeking consent would have understood that the other party consented. If that sentence is too complicated for you, read it again, and again, and again until you understand it, because that's the law, and it's the only test that works.

Whether the woman is subjectively happy or subjectively unhappy is not pertinent if her subjective state did not coincide with her outward expressions. The only question that matters is whether her outward manifestations of assent indicated to the man that she assented to the sex act. Period. And historically, consent can be manifested in an infinite number of ways.

Since no one can seem to say what evidence of "consent" will suffice under this strange  new law, let's hope it is challenged in court very soon and ruled unconstitutionally vague.

California college men need to understand the new "affirmative consent" law -- and to use it when they are victims of sexual assault

The "affirmative consent" bill

The California legislature has passed SB-967 Student safety: sexual assault, the infamous "affirmative consent" bill. Now California has a criminal statute that regulates sexual assault in society at large and it will soon have one that regulates sexual assault on college campuses. When Gov. Brown signs it, it will be the first statute ever enacted to define "consent" for college students. "The bill defines consent to sex as the presence of a 'yes' rather than the absence of a 'no,' a cultural shift that victim’s groups have long advocated." See here. The law will codify the use of the low “preponderance of the evidence” standard (50.01% likelihood) in campus sexual assault cases and mandate “affirmative consent” at every step of a sexual encounter.

There are a host of problems with the new law. The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent: “Your guess is as good as mine," she said. Will it be implemented along the lines of Antioch College's infamously absurd sexual assault policy, so nutty that it was mocked in a Saturday Night Live skit? For those who don't remember Antioch's policy: "The persons(s) who initiate[d] the sexual activity [was] responsible for asking for consent." And: "Each new level of sexual activity requires consent." The Antioch policy was rightly skewered for the part about "each new level of sexual activity requir[ing] consent." Is it a stretch to think that young men who got consent for intercourse at the outset will be expelled for not asking whether it's okay to continue if it has gone on for "too long"?

California college men take heed: it is the responsibility of both parties to insure consent

But the other part of the Antioch policy quoted above -- it was the responsibility of the "initiator" to insure consent -- was also very problematic. Determining who is the "initiator" is often no easy task in the horny, murky world of college sex, but in a culture where males are assumed to be the initiators of sexual activity and females are assumed to be reticent about engaging in sex, it is not difficult to imagine which party usually will be singled out as the "initiator." Putting the onus on the "initiator" alone to insure that consent exists for the entire endeavor was code for "policing male behavior."

When the new California bill was first introduced last February, it contained a similar, onerous requirement:
An affirmative consent standard in the determination of whether consent was given by a complainant. . . . . It is the responsibility of the person who wants to engage in the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity.
But when the bill got to the state Assembly, it was changed, and the bill that just passed and that is heading to the governor for signature makes clear that the responsibility for insuring the other party consents is on both participants:
An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. . . . . It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.
The language in the California bill is critically important because sex policing on campus is premised on the antiquated belief that sex is something men do and that women have done to them. Duke University Dean of Students Sue Wasiolek recently was asked what would happen if two students got drunk to the point of incapacity, and then had sex. "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek. This sort of attitude can be deadly, especially in a culture where college administrators think it is perfectly fair to ask whether young men should be expelled on the basis of nothing more than an accusation.

On the basis of the revised language in the California bill, if a couple is in the throes of passion, and if the male fails to inquire if it's okay to proceed, he is no more responsible for sexual assault than the female if she fails to inquire. Any application of the new law that puts the onus solely on the male to insure that ongoing consent is present would be grounds for legal challenge -- and for the male to legitimately claim he, too, was the victim of a rape.

Even more important, if a male student, drunk or not, is not the one who escalates the activity to the next level without bothering to make sure if this is okay, he's the victim and she's a rapist. California men need to know that the burden is on the woman to insure he consents in that scenario, and we need to break down the cultural taboos for men to report their victimization. The reason we don't have a lot more men reporting they've been raped by women is because the very notion doesn't fit society's assumptions about men, women, and sex.

A few months ago, Wall Street Journal writer James Taranto wrote about sex partners who engage in mutually reckless drunken sex where both parties are intoxicated and mutually decide, in their drunken states, to have sex. Both of them engage in precisely the same conduct; the only difference is that one has a penis and one has a vagina. Mr. Taranto said it is unjust to hold only the man responsible when two drunks mutually decide to have sex. The male is every bit as much a "victim" as the female, and the female is every bit as much a "rapist" as the male. In Mr. Taranto's scenario, the parties' genders, not their conduct, is the only thing that differentiates them.

That didn't stop the usual suspects from having a conniption over Mr. Taranto's article. Tara Culp-Ressler wrote: ". . . conservative commentator James Taranto argued that a 'balanced' approach to the college sexual assault crisis involves placing equal blame on rapists and their victims, if both of them were drinking alcohol." Even though that's not what James Taranto argued. David Futrelle attacked the premise of Tatanto's scenario: "Huh," clucked Futrelle. "I'm pretty sure we determine the victim of a rape not on demographics but based on WHICH PERSON RAPED THE OTHER PERSON."

In contrast, Brett Sokolow of NCHERM thinks that in too many cases, colleges do determine the victim of a rape on the basis of demographics and not on which person raped the other. Mr. Sokolow, who has done more to advance the rights of rape survivors on campus than anyone we are aware of, cautioned colleges that when a man and a woman engage in mutually tipsy sex, the school shouldn't single out the guy for discipline, but they do. Shortly after that, Mr. Sokolow elaborated in an open-letter that raised very serious concerns about the hostility on American college campuses to the rights of men accused of sexual violence. Sokolow said that in the drunken "hook up" culture, the evidence is often too murky to warrant charging and punishing the male accused of sexual misconduct, but that's exactly what too many schools are doing. He said that "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to, and that doing so is what OCR wants." And in "case-after-case . . . sincere victims believe something has happened to them that evidence shows absolutely did not . . .." And: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen."

College men need to know that they are being unfairly singled out for sexual assault chages (don't rely on me -- that's what Brett Sokolow said), and California college men need to know they will soon have a law that says women have a responsibility to get the guys' consent, too. And they need to use that law when they have been victimized.

Thursday, August 28, 2014

If college men accused of sexual assault had a group like the NFL Players Association -- or anyone -- fighting on their behalf, things would be different

NFL Commissioner Roger Goodell's announcement yesterday that he is getting tough on domestic violence -- any NFL employee found to have engaged in assault, battery, domestic violence or sexual assault that involved physical force will be suspended without pay for six games for a first offense, banned for life for a second offense -- was hailed by women's groups as a "big win" and by progressive news outlets as "stunning in its earnestness and clarity."  Even with this announcement, NFL players will still have more rights than college men accused of similar sex offenses.

You see, NFL players have a very powerful union that advocates for them. College men have nobody to speak for them.

The NFL's Personal Conduct Policy provides that personnel found in violation of a policy who appeal are entitled to a prompt hearing pursuant to Article 46 of the NFL's Collective Bargaining Agreement. According to Article 46 of the Collective Bargaining Agreement, "the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers."

This is in marked contrast to the procedure on college campuses, where there is no requirement for consultation with any group that represents the interests of presumptively innocent men accused of sexual assault. One young man accused of a sex offense recently sued his school claiming "that the university refused his request to have a student on the hearing panel, which was made up of three colleagues of the victim's father, a Vassar professor." So much for fair play, the rule of law, and the bare semblance of justice.

Wait. It gets better. The NFL rules provide: "In any hearing provided for in this Article, a player may be accompanied by counsel of his choice."  (Article 46, Section 2(b).) The NFL even provides for hearings to be rescheduled to accommodate the schedules of players' lawyers. (Article 46, Section 2(i).)

This is in contrast to the practice of most colleges, which don't allow lawyers to advocate for the accused in sex offense proceedings. Lawyers are, in fact, considered a hindrance. The Department of Education does not require institutions to allow attorneys to attend disciplinary hearings even in an advisory role -- not even where the accused is subject to criminal proceedings and might waive important Constitutional rights in his college hearing.

There's more. The NFL rules provide: "The [NFL Players Association] . . . have the right to attend all hearings provided for in this Article and to present, by testimony or otherwise, any evidence relevant to the hearing." (Article 46, Section 2(b).) Immediately after the new rule was announced, the Players Association sprung into action and made it clear they will participate in appropriate cases: "We were informed today of the NFL's decision to increase penalties on domestic violence offenders under the Personal Conduct Policy for all NFL employees," the NFLPA said in a written statement. "As we do in all disciplinary matters, if we believe that players' due process rights are infringed upon during the course of discipline, we will assert and defend our members' rights." One news outlet took offense to the union's statement that it will seek to uphold due process rights, saying it means that "unfortunately, . . . the players can and will fight tooth-and-nail to avoid being punished under these rules." Heaven forbid we should allow due process to intrude on punishment!

Lucky for the feminist extremists and law-and-order zanies, there is no impediment to the rush to judgment on campus. College proceedings do not allow any group advocating for the accused to participate in the hearing on behalf of the accused. That's just as well, because there are no such groups.

The NFL rules also provide for the fair exchange of discovery before the hearing: ". . . the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing."

This is in contrast to the practice of  many colleges, some of which don't even bother to provide the accused with notice of charges or the names of witnesses against him. Hardly any schools (only 15%) employ formal rules of evidence in sex hearings, even though the majority of schools do abide by rape shield laws. See here.

Is it at all surprising that NFL players have far more rights than college men? Even illegal aliens have more rights than college men! Is there any group in America that stands to lose as much as college men accused of rape but that is afforded fewer rights? I can't think of one. And the most disturbing thing? Virtually nobody cares.

Friday, August 22, 2014

Dept. of Justice opens investigation into Foley beheading -- and this man will have more due process rights than college men accused of date rape


That a terrorist in Syria who commits a savage act in the name of a savage ideology is deserving of American due process, but American citizens accused of sex offenses who happen to be male and who happen to attend college are not, tells us all we need to know about the triumph of the most twisted political correctness imaginable.

But why are we surprised? "George Washington University law professor John Banzhaf suggests that illegal immigrants surging across the southern border into the U.S. receive more due process rights than college students accused of date rape." See here and here.

Moreover, public housing tenants have the right, under federal law, to confront and cross-examine witnesses before they can be evicted, a right the Obama administration doesn't think young men accused of sex offenses deserve before they are subjected to a potentially life-altering expulsion from college.

People who are sued for insubstantial money damages have far greater protections under the law than college men accused of sex offenses. Many who defend colleges' use of the "preponderance of the evidence" standard in sex cases insist it is fair because civil proceedings for money damages generally use that standard. What they conveniently fail to mention is that defendants in civil actions are afforded all manner of procedural protections, including the right to cross-examine plaintiffs in depositions and at trial, that are flatly denied young men in college sex proceedings.

College men are pariahs in the new age.

(Still working on a major piece. In the meantime, go here.)

Monday, August 11, 2014

Working on a major piece. In the 
meantime, for more information 
pertinent to the wrongly accused, go here.

Friday, August 1, 2014

Sen. Marco Rubio to college men: Drop dead

Rubio didn't really say that, of course. The title here is a reference to an immortal New York Daily News headline. Rubio's shocking indifference to the due process rights of college men accused of sexual assault prompted that over-the-top title.

The Senate's bipartisan Campus Accountability and Safety Act is but latest effort by politicians to jump on the "get-tough-on-campus-rape" bandwagon. It has eight co-sponsors, including Sen. Marco Rubio of Florida, and Rubio has put himself out front on the issue. This is not to excuse Rubio's seven co-sponsors of the bill, but Rubio is especially disappointing. We can expect Sen. Clare McCaskill to be indiffierent to college men's due process rights, but, to date, Marco Rubio has not exhibited such fealty to political correctness. The Senator's involvement seems like a blatant attempt to atone to women's groups for his opposition to VAWA, and it is chilling.

The proposed legislation is premised on the assumption that the college disciplinary process "often has resulted in negative outcomes for survivors." The message it sends is unmistakable: there aren't enough men being expelled for sexual assault. In this bill, accusers are "victims" -- they are repeatedly referred to as such throughout the bill -- and every accusation that does not result in a finding of responsibility is a presumed injustice. Rubio and his co-sponsors seem not to have noticed the staggering number of lawsuits being filed by college men who claim their schools deprived them of their due process rights. Jonathan Taylor has compiled a list here.

It is laudatory to enact a law in an effort to reduce campus rape, but not at the expense of due process. And that's why we fault Senator Rubio.

Here is one illustration of the short shrift given to the accused under the proposed senate bill. Colleges and universities will be required to designate "Confidential Advisors" who will serve as a confidential resource for "victims" (accusers). According to the proposed legislation: "The confidential advisor shall also advise the victim of both the victim’s rights and the institution’s responsibilities regarding orders of protection, no contact orders, restraining orders, or similar lawful orders issued by the institution or a criminal, civil, or tribal court." (Section 125(1)(G))

But there is no provision requiring that any representative of the institution advise the accused of his rights, or of the institution's responsibilities, in the wake of an accusation. None. As shown below, the survey that prompted the proposed legislation shows that a surprising number of schools do not bother to advise the accused of his rights.

Ashe Schow of the Washington Examiner posed a series of questions to the bill's sponsors. Among them, the following:
Will there be “support services” for the accused?

The bill will establish “university support for survivors of sexual violence.” Nowhere does it mention any kind of support services for those accused.

The “confidential advisers” designated to assist accusers will “perform a victim-centered, trauma-informed (forensic) interview” with the accuser. They will also inform the accuser of what they can do next, whether that be notifying campus officials or local police. The advisers may also assist accusers in reporting the incident.

Nowhere does the bill mention any services for the accused (note: accused means innocent until proven guilty). Will there be someone on campus providing them with information on what they can do to provide for their own defense? Will they be informed of their rights, and will those rights be under the law (due process) or under campus rules? Will they have the right to legal counsel in disciplinary proceedings?

In a statement to the Washington Examiner, American Enterprise Institute scholar Christina Hoff Sommers, one of the leading voices for responsible college sexual assault policy, decried the absence of due process rights for the accused in the bill.

“The campus gender activists who have promoted the new laws may not care about the rights of the accused, but U.S. senators have to care,” Hoff Sommers said. “They are the guardians of a legal tradition that takes exacting precautions to avoid convicting an innocent person of a crime.”

“Presumed guilty seems to be the new principle,” she added.
Consistent with Rubio's grandstanding on this issue, a spokesman for his office responded to the Washington Examiner's questions:
Examiner: Will there be “support services” for the accused? Will there be someone on campus providing them with information on what they can do to provide for their own defense? Will they be informed of their rights, and will those rights be under the law (due process) or under campus rules? 
Alex Conant: This bill does not address this issue.
Ashe Schow of the Examiner wasn't satisfied with that response. Nor are we. Schow writes:
These responses, however, still don't ease my concern that the legislation does not address due process rights for the accused.

This bill only addresses one side of the equation — the accusers, and it is clearly skewed in favor of them, as Conant’s answers show (using the word “victim” rather than accuser).

That’s not to say that there is nothing good in this bill — there is. Any step toward moving rape accusations out of the hands of college administrators and into the hands of those with specific training on the issue and the law is a good thing.

But ignoring the rights of the accused will only cause more problems. A “one-size-fits-all process” for handling claims of sexual assault is probably not the answer, but there are some things that every campus should be required to do, such as allowing cross-examination, witness testimony and the right to legal counsel.

Until the due process rights of the accused are considered, any bill to combat sexual assault will just institutionalize the “guilty until proven innocent” mindset and will lead to far more lawsuits against colleges by men who believe they were wrongly accused.
The proposed legislation was prompted by the results of a survey forwarded by Senator Clare McCaskill to American colleges to assess how colleges and universities report, investigate, and adjudicate sexual violence. Here is the report on the results of that survey. It is unfortunate that Rubio et al blithely ignore the fact that the survey reveals significant due process infirmities at our institutions of higher learning that put our sons at risk of wrongful expulsion. Among other things, the survey reveals that some schools -- 6% -- do not even presume the defendant is innocent until proven guilty. (F3.13) In addition, 8% of the schools do not bother to inform the defendant of his rights before the hearing. (F3.2) A full 13% of the schools do not provide the defendant written notice of the charges prior to the hearing. (F3.1) And 19% of the schools don't bother to keep written records of the proceedings, suggesting an alarming absence of accountability and transparency. (F2.5)  Yet, the McCaskill report incredibly suggests that there is no hostility to due process when it comes to young men accused of sexual assault. It presents no plausible evidence in support of that view.

Rubio and his cohorts have politicized a very serious issue, and their meddling for political gain will almost certainly result in injustices for college men. This is not an admirable quality for a man with presidential aspirations.

'Due Process for accused not a priority in campus sexual assault reform bill'

Read it here. 

Thursday, July 31, 2014

Bipartisan Senate bill on campus sexual assault seeks to ensure that every accusation is tantamount to a finding of guilt

The Senate's bipartisan Campus Accountability and Safety Act is but latest effort by politicians to jump on the "get-tough-on-campus-rape" bandwagon. Like all the other recent efforts, it is premised on the assumption that college sexual assault investigations and the college disciplinary process don't function the way they should, and this "often has resulted in negative outcomes for survivors." The Senate seems to assume that every accusation that does not result in a finding of responsibility is an injustice. The goal of the new legislation is to correct that, and to nab more college rapists.

There's one little problem: the proposed legislation is not at all concerned that at least some students accused of sexual assault might not be guilty. The bill contains no "provisions to safeguard the due process rights of accused students." None whatsoever. The unmistakable premise of the bill is that accusers are "victims," and accusers are repeatedly referred to as "victims" throughout the bill.

Here is one example of how the new law seeks to insure that the playing field is heavily tilted in favor of finding guilt in sexual assault cases. Under the proposed legislation, colleges and universities will be required to designate "Confidential Advisors" who will serve as a confidential resource for "victims" (accusers). According to the proposed legislation: "The confidential advisor shall also advise the victim of both the victim’s rights and the institution’s responsibilities regarding orders of protection, no contact orders, restraining orders, or similar lawful orders issued by the institution or a criminal, civil, or tribal court." (Section 125(1)(G))

There is no provision requiring that any representative of the institution advise the accused of his rights, or of the institution's responsibilities, in the wake of an accusation. None. Our readers are aware that colleges and universities are notoriously hostile to the accused's legal representation (by a lawyer paid for by the accused). The United States Senate doesn't even care if the accused is advised of his rights.

Words matter, especially in laws that will penalize colleges for non-compliance. College administrators are being told, in none-too-subtle ways, that accusers are victims, and that colleges had better start expelling more men accused of sexual assault. When you factor in the absence of any meaningful due process for men accused of sexual assault, the accusation will be tantamount to a finding of guilt.

It is disgusting that our friends in the feminist community do not share our concerns about fairness for the accused in college disciplinary proceedings. In perhaps the most astounding display of misandry this blog has seen, one feminist college professor said this about the lawsuits against colleges filed by men claiming they've been deprived of their due process rights: "These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape." Sadly, this attitude seems to be the one in vogue in Washington.

Whatever laudatory impulse might have prompted this most recent legislation has been tainted by its blatant hostility to fundamental notions of fairness for students accused of sexual assault. We need to urge our senators to modify this legislation to insure that the accused are afforded fundamental due process protections.

Wednesday, July 30, 2014

Harvard student council VP: Harvard needs its own definition of consent, but doesn't seem to know what that should be

Harvard Undergraduate Council's vice president is unhappy with the school's newly revised sexual assault policy -- a policy that, according to Prof. KC Johnson, tosses the accused student's due process rights onto a scrapheap of indifference. Stripping college men of any meaningful opportunity to defend themselves isn't good enough for anti-rape advocates. The student council vice president wants Harvard to implement an "affirmative consent" standard, even though the VP doesn't seem able to say what that standard should be.

Mia Karvonides, Harvard’s Title IX officer, said that Harvard's new policies do not include an affirmative consent policy because “there is no standard definition of affirmative consent.” She added: “The closest any college comes to a defined affirmative-consent approach is Antioch College. Under their policy, consent is given step by step at every point of engagement during an intimate encounter. You must verbally ask and verbally get an answer for every point of engagement. ‘May I kiss you? May I undo your blouse?’ Etc.”

Karvonides's explanation is not good enough for the student counsel VP. “There is no perfect, one accepted standard," the VP clucked. The VP wants "a Harvard definition that is most suitable to our campus."

Read it again, I didn't make it up. The notion that a clear and unambiguous word requires a "Harvard definition that is most suitable to our campus" is downright other-worldly, as absurd as it is chilling. There is one accepted definition of consent -- consent is agreement or permission to do something -- and either it's present or it isn't whether Harvard says so or not. It means the same thing at Harvard Yard as it means in Philadelphia and Berkeley and everywhere else.

Does Harvard need its own special definition of "snow" suitable to its campus? How about "dog"? Or "water"? Yet for something as critical as "consent," they need to reinvent the wheel even though they have no idea what that definition should be.

The "affirmative consent" advocates are looking for some measure of clarity in parties' interactions they think will insure that sexual interactions are not subject to misinterpretation. Except they don't know how to define what will achieve that clarity. The Antioch College example is notorious for its absurdity.

So what's the answer? What will achieve the desired clarity? In civil law, certain types of contracts require a writing, most notably: contracts for the sale of goods of $500 or more; contracts for the sale or lease of real property; contracts to answer for the debt of another; and contracts that can't be performed within one year (not applicable in Pennsylvania). But even the most ardent supporters of affirmative consent have not gone so far as to suggest contracts in writing for sex, and most have backed away from the notion that consent has to be verbal, because they know that human experience furnishes a seemingly infinite variety of ways to manifest agreement to sexual intimacy and that matters of the heart can't be subject to the rules applicable to bartering for commodities in the marketplace.

What they ought to focus on is education -- about consent, the role of alcohol in sexual encounters, and the regret asymmetry -- not more draconian rules intended to expel more young men.

Aside from a twisted few, these advocates' hearts are in the right place. Nobody likes rapists, and it's easy to jump on the bandwagon to condemn this loathsome offense. What they don't seem to realize is that every time they lobby for some additional rule to make it easier to nab rapists, they make it easier to punish innocent students, too. We urge them to keep up their anti-rape advocacy -- bullhorns and all -- but for every suggestion to nab more rapists, they also need to consider in a meaningful way its effect on the wrongly accused.

University of Cincinnati launches witch hunt against men

A grand jury didn't find probable cause to charge Ethan Peloe for the alleged sexual assault of two classmates at the University of Cincinnati, but that wasn't good enough for the school. It charged Peloe with having sexual contact with two female students who said they were unable to resist because of alcohol. The school subjected Peloe to two hearings that, if Mr. Peloe's lawyer is right, deprived Peloe of any meaningful opportunity to defend himself.

Now Mr. Peloe has sued, claiming that a dean of students who investigated the matter for the administrative hearing was biased against him from the beginning because he was a male accused of assaulting two female students. Why? Because of the pressure from the U.S. Dept. of Education to crack down on sexual assault allegations. UC made an example of Peloe.

According to Peloe’s lawsuit, surveillance video obtained by police shows the two women “were not intoxicated and led Peloe to their room.” The suit also states text messages obtained in the investigation called “significant portions of the students’ stories into question. For example, although the students claimed to be passed out, they still sent a number of text messages,” the lawsuit states. “In addition, later messages joked about the case.”

Peloe alleges a UC detective in the case told Peloe's mother he believed Peloe committed no infraction. According to Peloe's suit, the school's disciplinary committee refused to watch a video of the females signing Peloe into their dorm. It refused to hear a witness who would corroborate Peloe's story. It refused to consider a list of text messages -- including one alleged to have been sent when one of the females said she was passed out -- that Peloe said shows the acts were consensual. The committee also wouldn't hear evidence, the documents note, of a UC report that noted a third female was in the room at the time of the alleged incidents and "did not witness anything illegal." It also alleges the committee wouldn't let Peloe submit other information he said showed he committed no crime.

A UC Associate Vice President of Public Relations said the university is not commenting at this time because of a gag order on the case. Yet, now UC has commented, by affirming that it follows the dictates of Title IX -- not due process: "The University of Cincinnati takes seriously our obligations under Title IX and makes every effort to ensure that our campus is safe for all students, faculty and staff and our processes respect the rights of all students," said M.B. Reilly, director of Public Relations for the University.

If Mr. Peloe's suit is accurate, the University of Cincinnati is not safe for its male students.

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.