^^It just shows how absurd it is for universities under the auspices of the Department of Education to try and regulate student sexual behavior. If the police aren’t involved legitimizing the activity as potentially criminal, that is exactly what is happening.
With regard to the issue of confidentiality, the Office of Civil rights issued a “guidance document” to help clarify the expectations set forth in the Dear Colleague Letter of April 4, 2011. Pages 18 through 20 detail how colleges should approach requests for confidentiality from the complainant. Not sure how this might overlapin cases where mandatory reporting might involve outside authorities.
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
It’s a conundrum…i suppose a college could move the complainant to a different dorm, rearrange their schedule, organize therapy etc. if a student wanted to be confidential but didn’t want to run into the person frequently and just wanted help and that is addressed in the document but I doubt a college could force the student who is being complained about to rearrange their schedule, switch dorms, or do much (legally) without communicating specifics. I wouldn’t allow disruption of my kids chugging along doing well in college without a pretty clear idea why they were being disrupted and I would hire an attorney to find out the “whys” if need be, otherwise it’s a bit of a free for all.
But then the guidance goes on to say this which is contradictory:
I have to presume that this guidance (about disrupting the person being complained about) does not refer to confidentiality and an investigation has been deemed necessary and that the confidentiality will not be honored, but the document is not that clear in this regard. It’s also odd because it doesn’t really talk about “how” a college could “investigate” if they agree to the confidentiality request - it seems that this could also open the school up to legal issues plus I’m not sure how a college can even “investigate” legally without releasing the details of the allegations which presumably would “expose” the complainant.
Re the complainee…it’s a heck of a thing to try to explain to your classmates and professors at a little LAC why you are abruptly moving out of your dorm, avoiding the dining hall, and withdrawing from several classes in the middle of the semester. I don’t know what else universities can do. You have to have a system where you separate people who are having a dispute, or you can end up with violence. But there’s no realistic way to keep these things private.
There has been quite a lot of media coverage of the Drew Sterrett case. All, that I’ve read at least, sympathetic to Sterrett even in the liberal press (e.g., Washington Post, Slate).
This article (from a conservative site) makes some good points.
Oh but then she wouldn’t be “CB” she’d be fair game publically - and I’m sure her mother doesn’t want that! Plus according to some reporting the “diary” that her mom found chronicling her college life that started all this has been “destroyed.” I’m wondering if the Sterrett family, since there was no report of a financial settlement, will turn their lawyer to “CB” and the mother which they certainly could do in civil court or if this family and the young man are really stand-up people and all they wanted was a public apology by the university. If it was my son I honestly don’t know how I’d feel and it would probably depend on how much actual dollars we lost as a family in lost tuition and the defense. With the roommate in the top bunk complaining about the ruckus in the bottom bunk I can’t image any police department wasting time on this one. If she and her mother really honestly thought she’d been raped, they should have gone to the police in the first place. I hope he’s in engineering school somewhere…
IMO colleges are ill equipped to do any kind of investigation into sexual assaults. They should all be turned over to the police.
Just read this opinion piece, which addresses what happens when schools farm out the investigation, and sometimes the decision, also:
Justin Dillon, the author of the piece, is my law school classmate and co-TA from constitutional law. We now share a number of clients.
The article on the “Inspector Javert model” is quite interesting. Initially I hoped these outside investigators would bring professional training and impartiality to campus Title IX sexual assault proceedings, but it seems they’ve just added another layer of opacity to what is already a biased and capricious process.
I was especially discouraged by the authors’ conclusion that “it’s cheaper and easier for schools to deal with a lawsuit from an expelled student than a federal investigation, a Title IX lawsuit and a public attack.” As the OCR increases pressure on colleges to find against and expel the accused, the cases get even more Kafka-esque. Barring a change in administration at the DE, I don’t see this situation improving any time soon, despite some favorable settlements.
Reliance on an independent single investigator was challenged by a California Judge Joel Pressman who “ruled that the University of California at San Diego must reverse the suspension of a male student whose due process rights UCSD officials violated during a hearing over allegations he assaulted a female student.”
Here is another kid expelled fighting back. Interesting that Middlebury used preponderance of evidence when expelling a student, buts wants a clear and convincing standard when defending themselves against his lawsuit. What a bunch of hypocrites.
The Middlebury case is significant because the accuser is not a student at Middlebury. The incident at question occured when the accuser and John Doe (who was a Middlebury student) were studying abroad at a program administered by SIT (School for International Training). SIT investigated the accuser’s claim following Title IX guidelines and found John Doe not responsible. The accuser did not appeal SIT’s decision.
Then, after the accuser returned to her own college, she filed an OCR complaint against SIT and threatened to do the same against Middlebury unless they conducted their own investigation. They did so using a single outside investigator. No hearing was held. This time John Doe was found responsible and expelled.
He then sued Middlebury. A federal judge halted his expulsion pending further legal proceedings so now John Doe is, at least temporarily, back at Middlebury. The college is appealing that decision.
That Middlebury has claimed Title IX jurisdiction over a case involving an accuser who is not a Middlebury student is a worrisome development.
In another case, a lawsuit brought against Case Western University medical student who claimed he was discriminated against under Title IX was dismissed. The judge said that the plaintiff could not prove that he was discriminated against because he was a male even though he had established “a plausible claim that [he] was innocent of the charges levied against him and that CWRU wrongly found that [he] committed the offense.”
My new case takes the cake. This is based on the accuser’s statement to campus safety and her formal complaint filed with the school. According to the ACCUSER, my client asked for affirmative verbal consent when genital touching occurred. The accuser says she said “Yes,” even though she actually didn’t want it, because she “thought saying yes might get him to stop.” The parties agree that she never said “no” or “stop” or “ouch” or “I want to leave.” The parties agree that neither was drunk. The parties agree that nothing went beyond genital touching.
He was found responsible for sexual assault and suspended for three years. He applied as a transfer to several schools last year without my help and was rejected everywhere. We’re trying again.
Hanna, I am at a complete loss to figure out how anyone found him responsible for sexual assault on those facts. Is there something we’re missing? What kind of process did the school have to find him responsible?
She said that she felt threatened and intimidated, that she didn’t want to be in his room in the first place, that she told him she didn’t want to have sex and he kept talking about getting her ready, and that his kissing was rough and violent. All of that is disputed. She told this version to lots of other people in the days after the incident. But it is undisputed that there was affirmative verbal consent for the penetration – she just explained that the consent was no good because it was something she said out of terror.
I wouldn’t believe it either if I didn’t have the materials in front of me. The panel consisted of a faculty member, a staff member, and a student, none of whom had any legal training. Maybe they thought it was OK because they weren’t technically expelling him.
I had little babies during the daycare paranoia and I recall thinking “make it stop make it stop” and I have that same sick feeling in my stomach and desire to scream “make it stop make it stop” about this Title IX business. Probably a good thing I missed the Communist witch hunt era.
Suppose it’s true. We can have no idea whether it is, but let’s just suppose for the moment that it’s true-- I’m assuming that the examiners believed her.
So then he was terrorizing her, she kept saying no but he was ignoring her refusals, he was assaulting her (“his kissing was rough and violent”) and that she finally said yes to him to get it over with. Are you asserting that in that situation, that coerced Yes should be taken at face value?
It seems to me that in taking his side, you’re just asserting that she’s lying. Maybe she is, but you’ve given us no reason to believe it.
I guess my point here is, a coerced yes doesn’t count as a yes: nobody would say she consented if she said yes after he put a gun to her head, to give an extreme example. So then we need to determine whether she is telling the truth, and whether, if she is telling the truth, his violent sexual assault (violent kissing after her repeated refusals is sexual assault by anyone’s definition) would count as coercion. What did she think would happen if she said no? In her telling, the guy wasn’t taking no for an answer and was violent.
But if she is telling the truth, he was already assaulting her by the time she said yes to the intercourse. So even if her eventual yes counts as consent, he is nevertheless guilty of sexual assault if we believe her story about his persistence in the face of her repeated refusals.
And if we don’t believe her, he is guilty of nothing.
@Cardinal Fang, let’s revisit what Hanna said:
Where do you get these repeated refusals? It sounds as if she may have said once that she didn’t want to have sex. SHE agrees that she never said no. Not once. And in fact they did not have intercourse.
Perhaps he was a bit of a boor, but why was she unable to simply say “No, I’m leaving” and then do so? She was sober. She doesn’t allege that he was using a weapon or threatening her with violence. Is she lying? Apparently not: it sounds as if she told the truth, including all of the facts that proved that he was NOT guilty of sexual assault.
Sounds to me as if neither of them is mature enough to embark upon a sexual relationship. That doesn’t make him a rapist.
“she kept saying no”
She does not allege that she ever said “no” or “stop.” The only boundary that she expressed verbally was that she didn’t want to have sex, and she doesn’t claim that he tried to have sex with her. It was genital touching and then finger penetration.