Men fight back against sex assault charges

[momrath]

In the past year there has been significant push back against colleges by men who claim they were unjustly expelled after being found responsible for sexual assault. Since January 2014 nearly 40 men have brought suits, among which about two dozen are pending, including high profile cases at Colgate, Cornell, Boston College, Duke, Drew, UMich, UMass and Wesleyan,

Recently, several colleges have reached settlements with former students, including Amherst, DePauw, Marlboro, St. Joseph’s, Swarthmore, Temple, UC-Boulder and Xavier.

But contrary to this trend, last week, a highly publicized case brought by Peter Yu against Vassar was dismissed by Ronnie Abrams, a US District Court judge. Abram ruled that Yu was not discriminated against by Vassar College and that the College followed its Title IX procedures as mandated by the Office of Civil Rights. Yu’s lawyer plans to appeal.

Yu, a Chinese National, was accused of sexual assault a year after he participated in what he claims was consensual sex with a fellow student, who happens to be the daughter of a Vassar professor. Yu was subsequently found responsible and expelled, on the grounds that the accuser was believed by the adjudicating panel to be too intoxicated to consent.

The judge’s summary makes for interesting reading, notably, I think, the section in which she dismisses the significance of exculpatory Facebook messages that the accuser sent to Yu over several weeks after the event (see page 41). These indicate that the sex was consensual (and at one point the accuser even suggests that she may have seduced Yu, who was a virgin at the time); however, for various reasons the panel accepted the accused’s excuse that she didn’t mean what she wrote.

But the part of the judge’s decision that should chill the hearts of parents of any college student (but especially parents of sons) is: Since Vassar is a private college, and not a state actor, “the federal Constitution does not establish the level of due process that Vassar had to give Yu in his disciplinary proceeding.”

So basically, if you attend a private college, under the OCR’s Title IX’s Dear Colleague letter, college sexual assault committees do not have to grant due process rights.

From FIRE:

Overall, the opinion presents a meager view of the due process rights to which students at a private college are entitled, so long as the college follows its own procedures (which the court found that Vassar did). The court’s decision should remind prospective students and their parents—particularly those considering private colleges—to take a serious look at what protections those schools offer in their disciplinary procedures before making a decision about where to enroll. Given that expulsion from college is a potentially life-altering event, students should make sure they are comfortable with the level of protection afforded them in expulsion-level hearings.

http://www.mindingthecampus.org/2015/04/the-railroading-of-peter-yu/
https://www.thefire.org/in-due-process-lawsuit-court-rules-in-favor-of-vassar-college/
http://www.wsj.com/articles/in-campus-rape-tribunals-some-men-see-injustice-1428684187
http://www.washingtonexaminer.com/due-process-denied-judge-finds-against-vassar-student-accused-of-sexual-assault/article/2562399

[partyof5]

I read a similiar story about the kid from Duke that was suing. He was expelled a couple of months before he was due to graduate. It is a very hard topic. As a woman, I definitely feel we need protection from predators, and there needs to be accountability. However, that accountability should swing both ways. In the above example, why in the world should her facebook messages be excluded? In the Duke example, there was alcohol involved, he said it was consensual, she said it wasnt. We all know that alcohol lowers ones inhibitions. Is it fair, that guys who are probably inebriated as well, be held to higher standard? So if a girl is sloppy drunk, she is unable to give consent, but the guy who is equally drunk is supposed to know she doesnt mean what she says?? I am not advocating one way or the other, its just a very hard situation. College kids will drink,hat will never stop, and that inevitably leads to bad decisions.

[dadoftwingirls]

I didn’t understand the logic. The university is private so doesn’t have to follow the constitution but it does have to follow federal Title IX rules since they accept federal funding.

[eireann]

I think what that statement means is that he can be expelled for whatever reason they want. The flip side is that he has not been convicted of rape, won’t have a sex offender record, etc, so it’s not like due process is being ignored in a court of law; it’s about the school’s internal policies. It’s a raw deal for him, it sounds like, but I’m not sure if it’s much more of one than those stories about people who get falsely accused of cheating an expelled, for example.

[Hanna]

Later this month, I’m speaking at a conference in DC for families of students accused of sexual assault. My talk is going to be about how to explain this kind of proceeding in a transfer or graduate school application. I think the universities are between a rock and a hard place; they are not set up to adjudicate violent felonies. But no matter the problem, I never see ending someone’s education permanently as a good solution. These students can find other opportunities if they know where to look.

http://www.facecampusequality.org/

[GMTplus7]

@dadoftwingirls

I didn’t understand the logic. The university is private so doesn’t have to follow the constitution

How does a private college not have to follow the constitution?

[Hanna]

Lots of provisions of the constitution set limits on what the government can do – like not violating someone’s rights without due process of law. Those limitations don’t apply to private actors. Title IX is an enacted federal law, not a constitutional provision.

[dstark]

Peter Yu lost because of this…

A Vassar College regulation deems a person incapable of consenting to sexual activity if he or she is intoxicated. Specifically, the regulation states “consent cannot be gained by . . . taking advantage of the incapacitation of another, where the accused knows or should have reasonably known of such incapacitation.” After three students testified that the complainant was intoxicated at the rowing team party, a Vassar disciplinary panel found against Yu and dismissed him from the institution in 2013.

http://www.jdsupra.com/legalnews/federal-court-dismisses-accused-student-55811/

[Cardinal_Fang]

the section in which she dismisses the significance of exculpatory Facebook messages that the accuser sent to Yu over several weeks after the event (see page 41). These indicate that the sex was consensual (and at one point the accuser even suggests that she may have seduced Yu, who was a virgin at the time);

We have a confusion of two different definitions of consent here, and it permeates this debate. Unfortunately, we don’t have agreed-upon terminology, so I’ll use effective consent and apparent consent.

Effective consent occurs when someone who is competent to consent agrees to sex. Effective consent is required from the other party before someone proceeds with sexual activity.

Apparent consent occurs when someone says yes or otherwise indicates their agreement for sexual activity, without reference to whether they are in fact competent to legally consent.

It’s easiest to understand this when we think about an eight-year-old “consenting” to sex. She can say Yes all she wants, giving apparent consent, but nothing she does and nothing she says can be construed as effective consent. She cannot legally consent to sex. Her rapist can bring 147 Facebook messages and a video showing her apparent consent, but we don’t care. He can claim he was too drunk to realize she was only 8, but we don’t care. He can blather on about her consent, but we don’t care. If a sober person would have known this child was eight, her rapist is getting locked up for a good long time, because eight-year-olds cannot consent to sex no matter what they do or say.

In the Yu case, the issue is effective consent. At Yu’s college, students who are very drunk are, by rule, deemed not competent to consent to sex, no matter what they do or say. The college claims that the woman was too drunk to effectively consent, and they have three witnesses that testify to her drunkenness. No Facebook messages about apparent consent have any bearing on whether she was competent to effectively consent. It’s not a matter of dismissing the significance of the Facebook messages. They have no significance, because they can’t establish whether she was competent to effectively consent, and that’s what’s at issue.

[bearpanther]

But why bring charges? Why wait until the last possible minute to do so, a year later, after making those FB messages and texts?What is she wanting to accomplish? From the Examiner link above:

"One message from the accuser said: “I’m really sorry I led you on last night I should have known better then [sic] to let my self [sic] drink yet, I really don’t want this to effect [sic] our team dynamic or friendship. I don’t think any less of you at all I had a wonderful time last night I’m just too close to my previous relationship to be in one right now.”

Another message, sent two months later, said: “Peter, I wanted to write to you to apologize for that night about two months ago, I have not been trying to avoid you since then.” She again apologized for the evening and said: “I did not treat you very well, it was disrespectful on my part to do what I did because I was drunk.” She also stated that she would like to remain friends and “I care about you and I never ever meant to hurt you and we were both drunk.”

The accuser, during the investigation a year later into whether a sexual assault occurred, claimed the messages “did not correctly reflect her feelings” due to her being in a state of “shock and disbelief” about the encounter."

Shock and disbelief? Why write anything to Yu at all? Why continue the friendship? She talks in those messages like she took advantage of HIM, not the other way around. Yet we are supposed to dismiss them completely because she wrote such things in an allegedly traumatized mental state?

Maybe I do not understand because thankfully I have never been assaulted myself. But I have a hard time understanding this whole " an alleged rape victim can change her story, and say whatever about the incident, and it doesn’t matter if one time she said she had a wonderful time, and the next time she says it was rape, because she only said it was wonderful and that she led him on because of trauma and shock and disbelief, she didn’t mean what she wrote and you have to believe her no matter what she says, even if now she is being totally contradictory."

To me, it makes me instinctively less likely to trust the accuser. I had the same issue with Emma at Columbia—I just don’t get WHY you would communicate with someone who raped you, and also why it would take you so long to file a complaint. Why do you say you love him (Emma), why do you say you disrespected him that night and that you care for him? And then a year later—no, I had it all wrong, in fact it is clear you are a rapist.

But again, I realize I have never been in such a position, and so while I think I know how I would behave, of course I don’t know for sure.

This is part of what caused the whole RS debacle—you must believe Jackie no matter what she says, even if it doesn’t make sense, because it is the trauma talking, and it is confusing her, and you can’t press her or ask more questions because it will hurt her and it is rude and why don’t you just believe her, you horrible rape apologist, no matter what other evidence is in front of you?

How can you ever get to the truth in such cases? A victim should be able to make a complaint/press charges and feel that she is taken seriously, and yet the college or police should also be able to investigate thoroughly without being accused of insensitivity or disbelief just because they are looking for proof or evidence. And if the accuser does change her story—is there any room for skepticism at all?

[HarvestMoon1]

Like most of these cases there is more to the Yu story than meets the eye. The confidential nature of these college tribunals makes it very difficult for anyone not present to get a complete picture of what testimony the tribunal heard. And of course Mary Claire Walker’s version of the events of that night are VERY different.

As @dstark already pointed out though, the ONLY issue that the college tribunal was charged with deciding was the issue of consent - did Ms. Walker consent to having sex with him? Based on the evidence they had in front of them the tribunal found she did not have the capacity to do so. I think the testimony of the students who saw her that evening supported this and the Facebook messages also seemed to confirm she was very intoxicated.

But more importantly I think it is significant to note that despite the narrow question in front of them, these tribunals do want to get things right. They hear a lot of testimony we are not privy to and are not bound by the rules of evidence that would be in effect in a judicial proceeding.

I believe 2 things hurt Peter Yu at this hearing.

First this was not his “first rodeo” so to speak. There was testimony given at the hearing that he “was involved in a prior sexual assault.” While it was ultimately something the tribunal said they would NOT consider in reaching their finding, perhaps because it was not relevant to the issue of consent, you can’t “unring” that bell. And I cannot help but notice that Judge Abrams made a very short reference to that testimony in the decision. It was one short sentence in a 54 page decision, but it is there.

Secondly I think the following FB message he sent the very next day did not help him either:

“I was really drunk last night and I feel maybe I was way too forward. I’d be more shy if I was more sober. I just want to make sure that you are okay.”

Now Mary Claire’s FB messages do not help her either, but the above message could indicate to some that he was concerned that she was not “okay.” There also seems to be contradictory info relating to the whole virginity issue as well.

This case is just not as black and white to me as it appears to be to others.

[momrath]

@dadoftwingirls

I didn’t understand the logic. The university is private so doesn’t have to follow the constitution but it does have to follow federal Title IX rules since they accept federal funding.

Yes, that’s exactly the unbelievable point. The OCR issued its Dear Colleague letter in 2011 mandating how colleges investigate and adjudicate Title IX sexual assault complaints. It’s stated clearly in the letter that “Public and state supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.”

In other words, private colleges are not required to provide due process protections and Dear Colleague mandates trump all.

As @hanna notes, Title IX is an enacted federal law; however, the OCR’s interpretation of Title IX and its Dear Colleague mandates are not laws, per se.

the directive from the Department of Education’s Office of Civil Rights is not a formal regulation; it is an informal “guidance” letter, that does not go through the normal Federal Register listing or notice and comment period of most regulations, where such policy “guidance” would probably not withstand the process or legal challenge. This is not an error; it is how the OCR does business. Most colleges and universities comply out of weakness and because they don’t want the bad publicity that would come along with an “investigation” by OCR. It’s a wholly corrupt way of regulating “informally.”

http://www.powerlineblog.com/archives/2015/04/understated-headline-of-the-week.php

The court’s objective in the Peter Yu law suit against Vassar was not to re-hear Yu’s case, but to determine if he was treated fairly by Vassar. That judge concluded that he was. Other judges in other similar cases have indicated that they would conclude otherwise, which is why the colleges have settled out of court.

Consent and level of intoxication are over-arching thorny issues, especially when both parties have been drinking. Again, the issue that the judge in Peter Yu’s case addressed was not that the committee decided that the accuser was too intoxicated to consent, but how they reached that conclusion. Her opinion was that Vassar’s conclusion was reasonable. Other judges, like this one in the DePauw case, had different opinions.

The court challenged the board’s core finding that “it should have been apparent” to King that the accuser “was extremely intoxicated, to the point that she could not give consent” to sexual activity. “Quite frankly,” the judge wrote, “the Court sees very little evidence that supports this conclusion.”

The court also found it “problematic” that the investigation consisted almost exclusively of interviews of witnesses suggested by the accuser: “There was no attempt to use those interviews to ferret out other students who might have additional information.” This is precisely the kind of concern raised by accused students who assert that colleges are not evenhanded in investigating sexual-misconduct allegations.

Here is additional commentary on some recent settlements in which the accused was vindicated by the federal courts. Since these are confidential settlements we don’t know the terms, but it seems reasonable to conclude that if the colleges were willing to settle, they admit that their decisions and/or processes were faulty. What’s interesting is that these cases were heard by different judges in different parts of the country. The Yu/Vassar case is really the outlier.
Amherst
http://www.masslive.com/news/index.ssf/2015/01/amherst_college_settles_with_j.html

Marlboro
http://www.mindingthecampus.org/2014/08/four-straight-legal-victories-for-due-process/

Depauw
https://www.thefire.org/due-process-advocates-take-critical-look-colleges-dealing-sexual-assault-allegations/

St Joseph’s
https://www.thefire.org/saint-josephs-settles-title-ix-lawsuit-brought-expelled-student/

Swarthmore
http://www.washingtonexaminer.com/due-process-win-swarthmore-college-settles-lawsuit-with-accused-student/article/2556518

Xavier
http://mynorthwest.com/33/2506222/Basketball-star-Wells-settles-suit-against-Xavier

[dstark]

Since these are confidential settlements we don’t know the terms, but it seems reasonable to conclude that if the colleges were willing to settle, they admit that their decisions and/or processes were faulty.

That is a bizarre comment. I settled a case.

Momrath, are you a lawyer?

[momrath]

No, I’m definitely not a lawyer, and accept that my legal terminology may be off. I’m not sure which part of my statement you find “bizarre.” If a college comes to a settlement with a student who suing them, it indicates to me that the college felt they would lose the case if it came to trial. No? Why else would they settle? To avoid court costs or bad publicity? Maybe.

The point is that all the plaintiffs in these cases (except for the Vassar case) – all men who claimed they were wrongfully found responsible of sexual assault by their colleges and wrongfully punished – were granted settlements by their colleges. They may have been reinstated at their college, they may have had the violations expunged from their records, they may have been awarded financial settlements. We really don’t know the terms.

To me this indicates that the climate in the U.S. courts is tentatively leaning toward being supportive of the accused and critical of the college sexual assault committees. Whether that will continue over time remains to be seen.

[sherpa]

Since they were both drunk, they both lacked capacity to consent to sex. Doesn’t that make them equally culpable for what occurred?

[momrath]

Since they were both drunk, they both lacked capacity to consent to sex. Doesn’t that make them equally culpable for what occurred?

Technically, maybe, but in practice it’s the consent of the person bringing the charge against the perpetrator that the committee considers. If she is incapacitated, she can’t give consent, period. The reasoning that the perpetrator may have been too incapacitated to know that his accuser was too incapacitated to give consent hasn’t, as far as I know, been accepted as an excuse.

The complainant is usually a woman (though it could be a man) and the respondent – the person accused – is usually a man. In theory a man could claim that a woman sexually assaulted him while he was incapacitated, but due to anatomy or culture this approach is uncommon in practice. In Peter Yu’s case, his accuser waited until the last day that she was eligible to file a complaint which precluded him from filing his own complaint against her.

The problem in the Yu case and many, many others is that determining incapacitation or even intoxication is difficult and subjective, especially a year after the event took place.

[dstark]

Momrath, Well…since so many of your posts have links from libertarian websites, I understand where you are coming from.

I am not a lawyer either but I have more experience with cases than I would like to have.

People and organizations settle all the time while knowing they are not guilty or they are in the right. That is not just me talking. That is what my lawyers say.

It costs money and time to go to court. You may lose too.

I would not make that leap…they settled so they are guilty.

I am watching a couple of court cases now. I know the parties. In both cases, the parties that are in the right want to settle. Each case, if the case goes to trial, can cost well over $1 million in attorney fees. The cases already cost several hundred thousand dollars each and one case hasn’t started depositions yet. The other case will be settled. The wrong party is going to lose in that case.

[momrath]

@dstark, thanks for your insight. I’ll rephrase my comment: Since these are confidential settlements we don’t know the terms, but it seems reasonable to conclude that if the colleges were willing to settle, they felt that the judge would rule in the plaintiff’s favor.

I’m not libertarian on all issues, but on this one I’d definitely like to see less involvement of the federal government. I guess you could say I’m a concerned citizen. I think that most parents of college students – except of course for CC posters like me who took a perverse interest in Jackie’s case – are not aware of the rules under which Title IX committees operate.

[dstark]

Momrath, I don’t agree always with your rephrasing either. In some cases yes… The threat of losing at trial can play a major role.

[bearpanther]

I just read this article and found it a good overview of the issues surrounding campus sexual assault:

http://chronicle.com/article/An-Arc-of-Outrage/229271/#

“The conversation about campus sexual assault is dominated by two poles: One declares it a crisis, the other dismisses it as a panic. In fact, it has become both. And as long as candor and nuance remain elusive, so will progress.”

"The endgame of such rules for engagement, including trigger warnings, puzzles Ms. Baumgardner, the activist and executive director of the Feminist Press. “Is it to have a bunch of things that we’re not able to talk about?” That’s what we started with, she says. Instead, the goal should be “to connect and not hurt each other, but have these conversations.”

“Sex researchers tend to regard consent as a continuum, ranging from enthusiastic, to not especially excited but willing, to verbally coerced, to threatened and forced. With alcohol, people can be intoxicated, impaired, or incapacitated. The task is to figure out where acts become nonconsensual. “Are we going to call all of them rape, or are we going to call some of them misunderstanding?” Ms. Freedman asks. In the abstract and in individual cases, that is an excruciating question.”

“To better understand coercive behavior, Ms. Baumgardner wants to hear from confused, contrite young men: “I did this, and I really did not realize the extent to which I hurt this person, and I’ve had the opportunity to learn from it,” she imagines one might say. “I don’t think we as a society provide much space for that at all.” Nor is there room for straight male victims, she says. Speaking on campuses, she sometimes hears from men who were coerced into sex by women, with no chance to say no. A student at Stanford recently shared that experience in the campus newspaper. The story is not as simple as men always initiating and automatically consenting to sex.”

Here is the link to the Stanford article referenced in the last paragraph:

http://www.stanforddaily.com/2015/01/11/rethinking-gender-and-sexual-assault-policy-my-story/

“In my case, I don’t believe she had any especially malicious intent during the incident and her presence on campus does not present any imminent danger to me. Despite these factors, under the above policies, she would still fall under the category of recommendation for expulsion. She deserves to be educated about her mistakes, but this education remains unavailable to her as a result of the punitive approach proposed by the ASSU. The burden of providing her with this education should not fall onto me simply because I disagree with the recommendation for such a harsh punishment. There is definitely a time and place where expulsion is necessary and we need to ensure that the University is able to apply it to keep students safe. However, in cases where education is all that is necessary to ensure a safe learning environment, overreactions like expulsion begin to look less as a decision to ensure student safety but more as an attempt to deliver retribution for emotional distress, which should never be the goal of punishments.”