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.

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

'Illegals Crossing Border Have More Rights Than College Students Accused of Rape'

As posted here: http://pjmedia.com/instapundit/191896/

Illegals Crossing Border Have More Rights Than College Students Accused of Rape
by Prof. John Banzhaf, George Washington University Law School

WASHINGTON, D.C.: Tens of thousands of illegal immigrants, both children and adults, now streaming across the border, have more procedural protections – like the right to an impartial hearing, to require the production of documents, to present evidence, to cross examine those testifying against them, and to have their own lawyer present – even though it appears that most will never be deported, and those who are deported will simply be returned to their homes, whereas the much smaller number of college students who face expulsion and all of its life-altering consequences for alleged date rape have no such rights.

The disparity in procedural protections is likely to shortly become even worse, with a just-filled law suit seeking to require that each of the 60,000-plus unaccompanied children who have come across the border since November get taxpayer-funded representation at deportation hearings.

President Obama has just requested $15 million for attorneys to represent unaccompanied minors in deportation removal proceedings, and an additional $1.1 million for “immigration litigation attorneys” who, presumably, would assist adult illegal immigrants in their proceedings.

“The president is asking U.S. taxpayers to spend millions to help illegal immigrants who knowingly broke our laws to avoid deportation,” says Jessica Vaughn, director of policy studies at the Center for Immigration Studies; a decision which may have dire consequences for our entire immigration policy.

Indeed, if these and other budget requests are not approved, other border functions will have to be cut, said Homeland Security Secretary Jeh Johnson. “At the current burn rate, ICE is going to run out of money at mid-August and we project CBP will run out of money in mid-September,” Johnson said.

In sharp and dramatic contrast – even though the issues in typical “he said, she said” date rape proceedings tend to be far more complicated to resolve, and often require skilled cross examination to get to the truth – students accused of date rape and other sexual assaults are often not permitted to even have their own attorneys present, much less to conduct cross examination, something which would cost colleges nothing.

Indeed, even cross examination to test the veracity of what is often the only direct evidence of wrongdoing – the testimony of the complainants, some 60% of whom are so intoxicated that they have no clear memory of the event, and some 33% who had mental health issues prior to the alleged assault – often is not permitted in college adjudicatory proceedings.

This is especially upsetting when the U.S. Supreme Court has ruled that the Constitution requires Due Process procedural protections – including cross examination and the right to counsel – before other arguably less serious consequences such as the loss of disability benefits, cuts in welfare benefits, wrongful terminations, etc.

So far, more than a dozen students have successfully sued their universities for improperly finding them guilty of date rape, and more than a dozen more cases are 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.

Thursday, July 17, 2014

Suing your false rape accuser 'contributes to the culture of silence surrounding rape'

In December 2013, singer Conor Oberst was falsely accused of rape in comments made on a website of an online magazine by a fan named Joan Elizabeth Harris. Oberst filed a defamation action against Harris, and Harris has now recanted her accusations and issued an official public apology. "I publicly retract my statements about Conor Oberst, and sincerely apologize to him, his family, and his fans for writing such awful things about him," she wrote.

A bewildering, yet all too predictable footnote to the story is that, even before Harris' public apology, an advocacy group publicly called for Oberst to drop his civil action because it "will hurt victims" and that "it is offensive to imply that filing such a lawsuit is a respectable way to procure money . . . ."  (You may need to reread that again just so you believe what you're reading.) Moreover, "even if Ms. [Harris] was not truthful, vilifying discussion of sexual assault by filing such a lawsuit only adds to the problem of under-reporting that enables sexual assault to proliferate at alarming rates." You see, this "lawsuit contributes to the culture of silence surrounding rape."

Another feminist extremist declared that rape is so prevalent, "it hardly matters if [Joan Elizabeth] Harris was telling the truth" (I am certain Mr. Oberst would disagree. Anyway, try telling that to wrongly accused men like Brian Banks and the young men in the Hofstra case.) "Harris . . . deserves to be left alone, despite the hurt she has caused for Oberst and actual survivors." The writer reminds us that "all men are capable of rape—even the awkward and sensitive ones."

If you are finished banging your head against the wall, let's explore these misguided sentiments. The suggestion that it is ethically imperative for Mr. Oberst to drop his suit is proof of how political correctness run amok can cause presumably intelligent people to say stupid things. What other class of citizens, aside from men falsely accused of rape, is expected to forego redress for harm done to them because, hypothetically, their lawsuits could put off women with no relation to their case from reporting they've been raped?

The suggestion is an affront to the community of the wrongly accused. Conor Oberst is not a stand-in for all "men," he's not an authorized agent of "the patriarchy," and he can't help that he was born with a penis or that he was victimized in this manner. He suffered an injustice, and he deserves redress. Period.

Beyond that, it does no favors for women who've been raped. Is this how anti-rape advocates think we empower women -- by scaring them into believing that rape victims are in danger of being sued for defamation and tossed into jail for truthfully reporting their victimization?  The facts don't support the scare tactic. Our civil courts are not being overrun with defamation suits against rape accusers. In fact, those cases are practically non-existent. Once cleared, the vast majority of even men who were falsely accused of rape are happy to put the incident behind them and move on with their lives. Some write to this blog to ask that their stories be removed so that the Internet can furnish no traces of their ordeals. It's not unusual for falsely accused men to publicly state they hold no malice toward their false accusers. Even those men tempted to sue drop the idea when (1) they realize that a defamation action will only publicize the rape accusation anew, and (2) they can't find a contingent fee attorney to take their case because few false accusers have deep pockets.

In addition, it is extremely rare for rape victims to be criminally prosecuted for making a false claim. We search for those cases to include in this blog (and we advocate for wrongly accused women with the same zeal we advocate for wrongly accused men), but those cases are hard to find because they hardly ever occur. Much more common are cases where prosecutors refuse to prosecute even demonstrably false rape accusers where there is compelling evidence of their falsehood. Typically, the few false rape cases that are prosecuted are the ones supported by ironclad evidence, such as a video, proving the rape claim was false. But even when there is ironclad evidence and a recantation, prosecutors typically just let it drop. (Can you say Hofstra?)

The suggestion that a man who seeks redress for a grievous harm against him is somehow silencing rape victims is the worst kind of straw man. Scott Berkowitz, President & Founder of the Rape, Abuse, & Incest National Network (RAINN) testified about the causes of underreporting in a 2010 Senate hearing in 2010 hearing. Berkowitz's testimony was summarized by Amanda Hess:
More victims may not be reporting their rapes, but the reasoning has changed over the past few decades. "A generation ago," the reasons were things like, "fear of not being believed; fear of being interrogated about and blamed for their own behavior, and what they were wearing. In short, they feared that they would be the one on trial."

Today, "the perception of many victims has evolved." Now they don't report for these reasons: "they don't want their loved ones to know what happened; they're ashamed themselves; they just want to put it all behind them." Today, "fear and shame of how the police wil [sic] treat them" has moved down on the list of reasons victims provide for not officially reporting the crime.
Despite the absence of any support for this bogeyman, don't expect it to collapse under the weight of its own falsehood. When the legend becomes fact, old cowboys and feminists alike insist on printing the legend. Sadly, we are stranded in an era where victims who seek redress are villains, and villains who cause grievous harm "deserve to be left alone." Where gender warriors not only want to strip presumptively innocent men of rights ("Why could we not expel a student based on an allegation?"), they are happy to strip innocent men who've been wronged of their rights, too. The world won't right itself until enough people of good will take the moral high ground from these woefully misguided zealots.

Wednesday, July 16, 2014

Get your Innocence Project shirt, help free the innocent!

Help free the innocent! Proceeds from the sale of this super soft 100% cotton tee will support the Innocent Project's work to exonerate innocent people using DNA and reform the criminal justice system to prevent wrongful convictions.

https://represent.com/innocenceproject

Woman makes 14 false rape claims -- against the same man

Preface to the story below:  This is among the lengthiest sentences for a false rape claim we've seen. Lengthy incarceration is appropriate here, given the woman's appalling lies and the fact that her malefactions were proven by video. Just as in the story we reported right below this one, thank goodness for video! How many innocent men would be rotting away in prison behind bars without it?

Here is the news story as reported here: http://www.dailymail.co.uk/news/article-2694017/Mother-Heather-Gibson-jailed-4-years-falsely-claiming-boyfriend-raped-14-times.html

A mother has been jailed for four years after falsely claiming her boyfriend had raped her 14 times in a bid for revenge after their baby was taken into care.

Former Tesco worker Heather Gibson, 29, of Grimsby, Lincolnshire, was told by a judge that her actions had made it more difficult for real victims of rape to be believed in court.

Her former partner Gavin Plaistowe, 30, was held in police custody for 35 hours after she accused him of 12 rapes. Mr Plaistowe waited a month for police to investigate and find he was innocent.

While on bail, Gibson claimed Morrisons worker Mr Plaistowe then raped her twice - while she awaited trial for perverting the course of justice.

But CCTV of Gibson at work in the supermarket undermined her accounts. She alleged two gang rapes on two occasions - the last time with six men, Hull Crown Court was told yesterday.

Mr Plaistowe could have been jailed for 20 years if the allegations had been true.

But Gibson later confessed to a friend she blamed Mr Plaistowe for losing her child into care because she had made a complaint about him dropping the baby. Social Services took the baby into care for lack of parenting skills.

Gibson, a former grammar school pupil, sought revenge with the false claims to the police. But when she was charged with perverting the course of justice, she forged a string of letters.

They purported to be from officials including a crown court judge, a police officer, a justice minister and even Deputy Prime Minister Nick Clegg.

They were sent to Bath and North Somerset Social Services, where her daughter was in temporary residence. They claimed she had been the subject of wrongful allegations and expressed outrage she had been charged. They were all found to be produced by Gibson.

She even took police to the spot of one of the alleged rapes, saying she had dragged by the hair and her bottom lip had been bitten. Gibson gave detailed accounts of each rape in video interview, but admitted she had showered after the attacks and lost all forensic evidence.

She claimed to have details of contacts of witnesses in a cupcake-shaped notebook. However, the police recovered CCTV of her buying the notebook from a supermarket the day after she told them of its existence.

The first rape she claimed happened when she was eight months pregnant by Mr Plaistowe. She said she was raped again after giving birth and on two occasions in April 2012 - first by Mr Plaistowe and four friends then by Mr Plaistowe and five others.

He was arrested on April 4, 2012 and held in Grimsby Police Station from 12.20am until 6.26pm the following evening - a period of 18 hours. Such were the number of allegations he was re-arrested on April 26 2012 at 6.30am and released at 11.30pm after 17 hours.

He did not know how seriously the police were treating the claims until May 4, 2012 - exactly one month later. Gibson pleaded guilty to four counts of doing an act tending to pervert the course of justice as specimens of her conduct.

Simon Kealey, prosecuting, said two Humberside Police officers had spent eight weeks investigating the case. There had been two police interviews of Mr Plaistowe, three interviews of Gibson and a large amount of case preparation for a trial.

Mr Kealey said it had diverted police attention and all this was in addition to the terror Mr Plaistow had suffered. He said Gibson would not get back her daughter.

In her pre-sentence report, Gibson showed no remorse. She said all her allegations were true, despite her guilty pleas - and that she had only pleaded guilty to get everything sorted quickly.

Joanne Golding, defending, said Gibson had no mental health problems which could allow the judge to find a different sentencing option - although there were clearly issues.

‘It seems to me the catalyst of this was the taking of the baby into care,’ said Mrs Golding. ‘The consequences of this were catastrophic.What she alleged against Mr Plaistowe was actually impossible. However, I have to concede there was a degree of persistence and subterfuge.’

She admitted Gibson had since found a new boyfriend, was engaged - and he was visiting her in New Hall Prison in Flockton, West Yorkshire, cycling 174 miles in a round trip to see her, taking four days.

She claimed she fell pregnant by him in January, before she was remanded in custody, although prison officials say a series of pregnancy tests are negative.

Sentencing, Judge Graham Robinson told Gibson: ‘Allegations of rape and other sexual matters have to be treated seriously by the police. They have no option. To do otherwise would open them up to complaints. In this case it took two CID officers six to eight weeks to get to the bottom of the allegations.

'There were other uniform officers doing interviews. There were two medical examinations, but it goes beyond all that. When a woman cries rape it dishonours the genuine victims of rape. You have no right to deserve the sympathy given to those women. You have no place among their number.

‘The Lord Chief Justice said once the public realise there are women, such as you, who are prepared to make false allegations of rape, it causes juries, in cases of genuine rape, to think twice.

‘It can no longer be said that women will not lie about such things. You make cases where women genuinely have been raped harder. This was a serious case - Mr Plaistowe must have been terrified.’

Woman cried rape after sex with man who left because she didn't match her online dating profile

A short preface to the story below. This is the scariest kind of wrongful rape claim, and thankfully, it's also the rarest: the scorned woman out for vengeance. Some of the news coverage of this story is distasteful. One headline reporting this incident called the woman "chubby." Another story called her "roly-poly." Clearly, from her picture she's "chubby," but very, very few "chubby" women would dream of doing something like this. The issue here isn't chubbiness, it's that this woman appears to be a sociopath. She's 23-years-old, and she has 15 previous convictions including an earlier false rape allegation.  Remember when Dr. David Lisak talked about the small percentage of male sociopaths who commit the vast majority of the rapes? Is it difficult to imagine a small percentage of women who would do something this heinous, chubby or not? Just as the male sociopaths are difficult to detect, these women mostly float just beneath the radar, making false rape claim and doing other bad things, because their wrongdoing often isn't taken seriously. We've reported on many instances of serial false accusers who keep getting away with it because their lies are trivialized.

Here is the news story, as reported here: http://www.bristolpost.co.uk/Internet-dating-mum-jailed-false-rape-claim/story-21642177-detail/story.html

INTERNET dater Emily Pike cried rape after a man she had sex with made his excuses and left, a court heard. Pike met 24-year-old Tom Mills online and they arranged a sexual liaison in Weston- super-Mare.

Bristol Crown Court heard that when they could not find a room they booked into the Premier Inn at Cribbs Causeway and had sex. But after Mr Mills decided Pike did not match the description she had given herself online he left, texting her to say he was helping a friend in accident and emergency.

Feeling scorned, Pike told police she had been raped at the hotel, as well as in a car in the car park.

Yesterday the 23-year-old, of Caerphilly in south Wales, pleaded guilty to perverting the course of justice and was jailed for 18 months by Judge Julian Lambert, who told her: "You know it is wrong to lie and it is wrong to lie and get somebody into trouble. Lie about rape and you are getting somebody into big trouble.

"Whether you couldn't learn, or you didn't learn, your web of falsehoods led to a young man being arrested for rape. He was at risk of many years of prison and he spent 12 hours in custody."

Anna Midgley, prosecuting, said Pike met Mr Mills via an internet dating site and after speaking on the telephone they arranged to meet in Weston for a "sexual encounter".

Miss Midgley said they had sex at the hotel after failing to find anywhere in Weston.

She added that Mr Mills decided to go afterwards as Pike did not match her online description. The Premier Inn CCTV captured him leaving alone.

Miss Midgley said: "After he left Miss Pike alone she tried to call him. He sent her texts, saying he had to help a friend in accident and emergency.

"After, she called the police. She made an allegation he raped her.

"She said she had consensual phone sex and when she arrived at the Premier Inn he forced himself on her. She said they left together and he raped her a second time in the passenger seat of his car."

Mr Mills was arrested and was subjected to medical samples, swabs and hours of questioning, the court heard.

But when police looked at the hotel CCTV, they saw the pair did not leave together and telephone messages did not back up Pike's claims.

She was arrested and maintained she was raped.

The court heard Pike's 15 previous convictions included an earlier false rape allegation involving a man called Simon Wise, after which she apologised.

James Tucker, defending, said his client had tragic personal circumstances in her life, which included having her child taken from her as she persisted with a violent relationship.

He said: "Accusing a man of rape is an incredibly serious matter. Circumstances where a determined complaint is made, after consensual sexual intercourse, can be very difficult for a man to refute."

Mr Tucker said his client was not calculated or cruel but had personality disorder issues and did not have the ability to sustain a coherent lie.

He said: "She understands what she is doing is intended to pervert the course of justice. Why she is doing it is seemingly lost upon her."

Mr Tucker said his client had a history of telling "fantastic lies" and did not accept she told police she had been raped in the car, even though she was filmed saying it.

She had also claimed to have married a man in Iraq, the court heard.

Mr Tucker said Pike was under the care of a mental health team, was taking medication and suffered from depression and psychosis, as well as epilepsy.

"She is an incredibly vulnerable person," he said. "She is acutely vulnerable at her own hands. Prison will punish her and open her eyes as to understanding why she is offending in the way she is."

Afterwards Detective Constable Richard Worrin said: "We take all reports of sexual assault and rape very seriously and this case should not deter people with genuine complaints coming forward to us.

"In this case, the allegations of rape were proved untrue through CCTV evidence and not by Emily Pike's own admission.

"I would like to stress that prosecutions such as this are extremely rare but false allegations of rape undermine the experiences of actual victims and can have a devastating impact on those who are wrongly accused."

Witch hunt at Amherst: Student is prevented from graduating because of an alleged sexual assault in 2009 -- even though he was already punished for it in 2010

In perhaps the most appalling display of academic hubris I can recall -- prompted by the Department of Education's crackdown on sexual assault -- Amherst College has taken punitive action against a college senior that, if permitted to stand, could have widespread and frightening implications for countless college men across America.  An Amherst senior, identified in court papers as "John Doe" (that's how we'll refer to him), was supposed to graduate magna cum laude a few weeks ago, but two weeks before graduation, Amherst told him it was withholding his degree and rescinding his post-graduation fellowship. Why? Because a claim that John Doe sexually assaulted his freshman roommate in 2009 (Doe has always vehemently maintained it was consensual) -- a claim for which Amherst already punished Doe -- resurfaced when the college's Title IX coordinator was made aware of it and undertook her own review of the record. Now, John Doe can't graduate, and Amherst is reopening the investigation to do it the "right" way.

The following information is gleaned from John Doe's complaint filed in a US District Court. The alleged sexual assault occurred in December 2009, and the alleged victim reported it to Amherst officials shortly thereafter but did not file a complaint in accordance with the provisions of the school's handbook. At the start of the 2010 spring semester, John Doe had two other alcohol-related incidents that resulted in reports to Amherst officials. In March of 2010, John Doe met on multiple occasions with Amherst administrators and was interrogated by two deans with respect to each incident and the underlying causes of his behavior. (John Doe believes the alleged sexual assault victim also met with Amherst officials.) While John Doe vehemently denied the sexual assault allegation, he acknowledged that he was struggling to come to terms with his own sexual identity and that he had been using alcohol to suppress and avoid these feelings.

At no time was John Doe provided with a complaint or any other document detailing the alleged sexual assault because the alleged victim did not initiate a complaint in accordance with the terms of the college handbook. At the end of this process, Amherst gave John Doe less than one week to vacate the premises and leave Amherst. On March 27, 2010, he boarded a plane back to South Africa, where he is a citizen.

Amherst provided a writing memorializing the reasons for, and the terms of, John Doe's departure. In the writing, Amherst stated that a determination had been made that John Doe had “engaged in multiple episodes of improper, non-consensual personal contact with other students,” including the alleged sexual assault victim. These actions, the school said, "violated the standards of the Honor Code.” While said violations “could have resulted in disciplinary action being taken . . . , including a likely disciplinary suspension,” Amherst “took into consideration the fact that [John Doe’s] alcohol use and resulting behavior reflected some deeper personal issues with which [he] had been struggling for some time.”  Accordingly, Amherst “decided to place [John Doe] on a medical withdrawal, rather than impose a disciplinary suspension, in order to allow [him] the opportunity to address those issues in a therapeutic, rather than a punitive, manner.” However, “[t]he conditions associated with [this] medical withdrawal” mandated that John Doe spend “the remainder of the year away from Amherst.” They also required him to: (i) “seek treatment from a licensed mental health professional . . . during his time away”; (ii) “provide a statement,” in his application for readmission, “identifying the extent to which [his] mental health concerns had been addressed”; (iii) “submit a letter from [his] treating physician, psychologist, or psychiatrist, confirming [his] readiness to resume full-time study at Amherst College”; and (iv) permit his therapist to speak with Amherst representatives.

The complaint that John Doe filed avers:
Before being forced to leave campus, [John Doe] could have invoked and exercised certain procedural rights pursuant to the 2009-10 Honor Code. . . . For example, [John Doe] could have contested [the dean of students'] authority to make a finding of Honor Code violations by noting that [according to the terms of the Honor Code, contained in the student handbook that John Doe agreed to abide by] such a finding could only be made by the Committee on Discipline following his receipt of a signed written complaint and a “fair and unbiased hearing.” . . . . [John Doe] ultimately chose to surrender these rights in exchange for certain benefits, including the following representation made by [the dean of students] about how Plaintiff’s departure from the College would be noted on his transcript: “A notation of ‘W’ will appear on your transcript for each of your spring semester courses and will not figure into the computation of your grade point average.
The complaint further avers: "Upon information and belief, [the alleged sexual assault victim] was made aware of the sanctions imposed by [the dean of students] and did not object to them or file an appeal with the President of the College alleging procedural error or challenging the appropriateness of the sanctions."

During the nine months John Doe spent in South Africa, he complied with the conditions of his medical leave, and at the end of 2010 was readmitted to Amherst, having demonstrated his readiness to resume full-time study there. But Amherst imposed a “set of behavioral conditions" for his return. These conditions required John Doe to: (a) “remain on probation through graduation”; (b) obtain counseling and allow the Dean’s office to monitor it; (c) meet weekly with a Dean and the Assistant Director of Health Education; (d) accept restricted access to certain residence halls; (e) leave campus “during times when the college is officially closed”; and (f) “not initiate contact with [his] former roommate, [the alleged sexual assault victim].” The dean of students concluded the letter by warning John Doe that “any breech of this contract and/or any violation of the Amherst College Honor Code may result in further disciplinary action . . . up to, and including dismissal.”

From the time of his return to Amherst to the present, John Doe complied with the terms of his probation and has not had any further violations of the school's honor code.

Following John Doe's return to the school, the complaint details the Department of Education's crackdown on sexual assault, and it notes that Amherst's handling of sexual assault claims came under scrutiny. Against that backdrop, fast forward to May, 2014. Out of the blue, John Doe was summoned to a meeting with Amherst administrators who told him he wouldn't be graduating now because the school was launching another investigation into the 2009 sexual assault claim. It seems the alleged sexual assault victim “had recently called the college to express dissatisfaction with the handling” of the case. This dissatisfaction prompted the school's Title IX coordinator to reopen the matter. She "discovered" that the College failed in 2009 to comply with Title IX law and with the Student Handbook.

John Doe's complaint alleges that "[t]he relationship between students and private colleges is contractual in nature, and each party to the contract owes to the other certain duties . . . " (Generally, that is correct, and we assume the court in this case will agree. We note that the law is not firmly settled on this question in Massachusetts. Bleiler v. College of the Holy Cross, 2013 U.S. Dist. LEXIS 127775 (D.Mass. 2013).)

It appears that many of the procedures for handling sexual assault claims outlined in the college handbook in effect at the time of the alleged incident and when punishment was meted out were not followed in the aftermath of the report of the alleged 2009 sexual assault. Among other things, no complaint was ever filed in accordance with the handbook's honor code. Nevertheless, the college decided to punish John Doe for the alleged sexual assault and other misconduct, and John Doe accepted the punishment without contesting it. He fully performed all of the conditions imposed on him.

Now the school contends that since it failed to abide by the terms of the handbook and Title IX back in 2010, it must reopen the disciplinary proceedings against John Doe and keep him from graduating. The decision is not only an appalling bow to outside political pressures, it turns settled law on its head.

The case should be decided on the basis of fundamental contract law principles. In 2010, John Doe and Amherst modified the terms of the handbook or, at the very least, Amherst waived certain of the terms of the handbook in arriving at the punishment. (Let's pause to explain that parties to a contract are permitted to waive -- voluntarily relinquish a known right -- the terms of a contract or expressly modify a contract's terms after contract formation. Even contracts that contain "no oral modification" clauses can be altered by express oral agreement or waiver -- the  parol evidence rule has no application to post-formation waivers or modifications. As the late Justice Michael Musmanno of Pennsylvania explained, "[e]ven where the contract specifically states that no non-written modification will be recognized, the parties may yet alter their agreement....The pen may be more precise in permanently recording what is to be done, but it may not still the tongues which bespeak an improvement in or modification of what has been written." Wagner v. Graziano Constr. Co.., 390 Pa. 445, 448, 136 A.2d 82, 84 (1957).)

If the terms of the punishment constituted a modification of the handbook, since John Doe fully complied with the conditions imposed on him for his punishment, the school is in breach of the modified contract by refusing to allow John Doe to graduate.

If the punishment is considered a waiver by Amherst of the terms of the handbook, John Doe relied on the waiver (is there any doubt that John Doe would have contested being exiled to South Africa for nine months in 2010 if he had known he would be prevented from graduating four years later?), so the school is estopped from now claiming the punishment it imposed may not have been sufficient. Restatement (Second) Contracts § 84, comment b.

Whether the arrangement is deemed a modification or a waiver, Amherst has no legal right to do what it did. But the lawsuit raises a host of other issues. For example, John Doe claims that at Amherst, no female or heterosexual student who was placed on probation and subjected to other disciplinary measures for a violation of the honor code has ever been subjected to additional penalties for the underlying incident absent a violation of probation.

Amherst's fear-based punitive action is not only a breach of contract, it is affront to fundamental notions of fairness that the prohibition against double jeopardy is premised upon. But this case has broader implications. Will schools now think it is fair game to reopen every sexual assault claim that didn't end in expulsion, no matter how many years after the incident, and regardless of whether the accused was already punished for the alleged misconduct? Once those floodgates are opened, the courts will be overrun with law suits.

We will be monitoring this case, but make no mistake, Amherst's action is very troubling on a host of levels. It is a frightening barometer of how far the academy has strayed from common sense, decency, and justice.