It's time to end the lie that 1 in 5 women are raped or sexually assaulted during their four years of college.
Because if it were true, what parents in their right minds would send their daughter away from home knowing that she had a 20% chance to be raped or sexually assaulted.
26
This may sound crazy, but there's a part of me that believes if we didn't make the sex lives of young adult women a source of shame about being promiscuous, perhaps there would be less of a need to falsely accuse someone to preserve a woman's reputation. Young people have sex. That young men can sleep with as many willing women as they want makes them heroes. But for those willing women they sleep with, they're branded as sluts.
Personally, I'd like to see more stats about how often someone is falsely accused. From what I can currently gather, it pales in comparison to incidents of drunken date rape. So while I appreciate the intent of this article, I think we'd be throwing the baby out with the bathwater.
Bottom line, we need healthier attitudes about sex so that (a) men don't feel entitled to it just because they want to live up to some macho ideal, and (b) women shouldn't be shamed for wanting sex as much as any single person.
15
Gee how about college students get involved in real relationships before they actually engage in sexual activity?
Heaven help us that a 19-year-old college student has to go, oh I don’t know, a month or two without sex while they size up their potential partner.
14
It is only right that the accused have a voice. Title IX was not instituted to create biased conclusions. As much as I find Education Secretary DeVos to be anti-public education, biased against teachers, and just plain DUMB, I believe that the proposed changes to campus Title IX/Sexual Assault claims to be in line with the constitutional rights of the accused.
12
Many comments here argue that campus adjudication processes are meant to determine whether school rules or policies have been violated.
That's fine if we're talking about being found cheating on an exam. But if it comes to civil or criminal litigation after someone says he/she has been harmed, this should be done only AFTER the culprit has been found guilty by the normal judicial process.
Shouldn't the same go for being fired by your employer, as in many recent cases ? No matter what Emily Lindin affirms, it's not OK to punish innocents.
https://twitter.com/EmilyLindin/status/933073784822579200
9
The willingness of people on this thread to repeat fake statistics like "research places the rate of false accusations at 2-6%," in a place as sophisticated as NYT is staggering. To begin with, that's not what the studies show. As a general matter, the research tends to look at what % of claims are proven false. In other words, if 4% of the claims are proven false, that does not mean that 96% per cent of the claims are true. It means that the 96% includes claims that are true and claims that are false but which can't be proven false. This is very different than saying false accusations are 4%. A related problem is that there is no good way to independently test claims, so even the reported figures are based on subjective or biased definitions what is false. (Hopefully, this is not a big surprise. Isn't the first thing you thought when you first heard these percentages: "how the heck did they know who was not telling the truth"?) Finally, much of the research is about claims made to the police, not claims made to campus Title IX administrators. It requires little imagination to think that people may be more careful about making a false claim to a police officer than to a university. For all these reasons, there is good reason to think the oft-cited 2-6% or 2-8% false accusation rate is wrong and may well be understated.
25
See, isn't it way more fun when you have an actually interesting editorial rather than the same hard leftist stuff that we usually see here? People's comments are actually interesting, and there is a variety of views from everyone across the political spectrum. I do hope you do more like this in the future.
19
Finally, a sane voice emerges. Lara Bazelon, the country needs you and any other people like you, desperately. We all understand partisanship, party loyalty, closing ranks, and the like, but for people of my generation this code of stubborn, vicious opposition to justice is quite alien. I can't recall a time in my life when men and women for political reasons joined forces to deny others due process. Prior to the civil rights movement, people knew the difference between right and wrong, even if they were too cowardly to fight for it. Today, the defense of evil practices such as denying the accused due process is pervasive on college campuses and it is sickening. Betsy DeVos has earned her keep for this courageous act of intervention. You are to be commended for stepping forward. Trump was right to say as he did that this is a treacherous time for young men made targets at the most vulnerable time of their lives, when their entire future is at risk, when they are most tempted by suicide as a solution, when they are most insecure and desperate. Women, too, are vulnerable. The young need to be backed up by an unwavering legal system that respects their rights. You have contributed greatly to this debate, although I cannot see how anyone can make the case for throwing the young under the bus and defending practices taken straight from Hitler and Stalin's dungeons. Without you and DeVos we would slide further down the slippery slope toward moral ignorance and depravity.
7
Men and women have equal intelligence. According to Forbes report on the 400 richest Americans, "most of the country’s wealthiest females inherited their fortunes from husbands, fathers and grandfathers. Only 1-2% of wealthy females are self-made."
Perhaps if all the business and government leaders in the world had been females instead of males.....then females would have prevented WWI, WWII, Korea, Viet Nam, and the little fights in the Arab countries from ever occurring. Correct? Or are females just as angry and warring as males? In terms of human behavior, the more things seem to change....the more they remain the same. Correct? Then some will say, "no hope left for humanity." But actually there is hope if you believe in God. That hope is great for Christians. So what hope is there for atheists and agnostics??? Is this why separation of church and state exists?
I agree with Ms. Bazelon’s suggestions. Having two different representatives question accuser and accused seems a better way to proceed than what has heretofore been done at many colleges. I am reminded of the false accusations against athletes at Duke University that tied up their reputations and academic careers and cost them and their parents money for legal defense. And I am reminded of the false accusations of a fraternity party rape a young woman at the University of Virginia made that a “Rolling Stone” reporter and her editor bought hook, line, and sinker. The published story won a lot of sympathy until further investigation showed the rape had never happened. Again, young men were put in jeopardy of their academic careers.
There is a “good” solution that involves cultural, ethical, and moral values among young adults and officials at colleges and universities. It raises the question of sexual activity among students, many of whom are just starting their studies. In my day at college men and women occupied separate dorms. No men were allowed beyond the lobby of girls’ dorms and no girls were allowed in men’s dorms, period. Sounds draconian but the rules were designed to protect a student’s reputation and integrity and lessen the chance of unwanted sexual advances. No drinking at all on campus. This sounds quaint but the issue Ms. Bazelon raises concerns more than a moralistic “abstinence” code for students.
It's very heartening to see how well the Times responded to the flood of comments that condemned a previous op-ed that took the opposite side. Thank you, editors, for listening to your readers and soliciting this op-ed!!
3
Wow, for a Yale graduate, there are so many obvious errors here it's embarrassing (well, for Yale).
First of all, when your argument starts out by making appeals for legitimacy (I'm a feminist! And a Democrat!) it's already got problems.
Second, for all the people at Yale who apparently don't seem to understand this (Kavanaugh): FALSE RAPE REPORTS ARE INCREDIBLY RARE AND NOT AN EXCUSE TO IGNORE RAPE.
I don't know what's going on at these elite schools, but learning about the real world apparently isn't part of it.
5
I have a son and a daughter. I want adaquate protection and justice for both of them. Don't ignore the women; don't railroad the men.
14
Why is this seen as a brave article? Why does it matter that the writer is a Democrat and a liberal? I know the cookie cutter answer, i.e. it bucks against stereotypical positions. But the clamor for defense of we”defenseless" dudes is overwhelming--except perhaps in various bubbles here and there.
7
Relax, Ms. Bazelon, no one is perfect, even if your feminist Democratic party comrades may condemn you as a traitoress to their cause. It is almost never possible to determine after the fact if an act of sexual union was consensual or forced, irrespective of whether it was homoracial, interracial, or interdenominational.
All claims to the contrary are a fiction spun by the politically correct, leftist, radical, militant men and women Democrats.
I wish you wholeheartedly to see the light and reorient your political views.
1
I understand why so many of you would be doubtful that any good can come from DeVos, but please take heart.
My son's life was devastated by a false accusation. He was only three weeks into his freshman year of college. Our lawyer was not allowed to speak for him. Our solid evidence was not accepted. The accuser's own witnesses were on the fence about her story. We had less than a week's notice about the hearing and when we asked if it could be pushed up an hour so the lawyer could attend, they said absolutely not. Although my son was allowed to write down questions to be asked of the accuser by a designated official, it was left to this official's discretion as to which ones would be asked, thus skipping right past some of the harder inquiries that would have allowed my son the credibility he deserved. No follow-up questions were permitted.
He was expelled, and now that his transcript is marked, chances are beyond slim that he will ever be accepted into a residential four year college again. He will be denied future careers that require background checks.
I can not begin to describe the devastation he and the rest of our family has gone through over the past fourteen months. His trauma was so great that he lost all interest in social activities, stopped eating and had suicidal ideations. He is only nineteen.
Please reconsider your stance on this issue. Please try to be impartial and examine the proposals with an open mind. However small the statistics are, these boys count.
122
If it's only about suspension or expulsion then colleges should have a free hand, barring precautions they may take against getting sued. The college that suffers sexual harassers will get a reputation. If it's about crimes, the regular courts and police should be involved, not colleges.
3
Pardon me, Ladies and Gentlemen, but there are easy answers to this outrageous condition, and it is to fashion a truly fair legal process that permits no accusation to be aired or enforced without something like fairness, evidence, truth and justice. And this situation is not entirely confined to the poor and racial minorities. I've seen young working men accused with utter impunity of totally false vilifications, not on college campuses, but in courts of law, where a judge massively ignored anything like due process merely to accomodate a complete imposture of innocence. When accomplices in her family tried a new game of extortion, members of the aggrieved family at last found their courage; revolted and threatened to go into a state Supreme Court and re-air the whole process, from beginning to end, from bottom to top; and, if necessary, to resort to federal process for constitutional remedies, not excluding inquiries into the conduct of corporate cowards and a low court (in every sense) judge. The extortion threats vanished, instantly. This sort of rot and filth will cease when and only when our society recognizes that a pose of innocence and victimhood is no substitute for serious legal claims, fairly investigated, fairly vetted and fairly enforced, but not otherwise.
2
While not perfect, the DeVoss proposals reflect that due process is important and that we are all innocent until proven guilty and have the right to defend ourselves in front of an unbiased adjuticator who is without incentive to find any conclusion other based on facts that can be substantiated. Remember Blackstone's formulation which was adopted in principle and fact by the founding fathers:
From Wikipedia: In criminal law, Blackstone's ratio (also known as the Blackstone ratio or Blackstone's formulation) is the idea that "It is better that ten guilty persons escape than that one innocent suffer". This was echoed by Ben Franklin and John Adams in his defense of the British soldiers in the Boston Massacre.
One only needs to see the impact as cited by the author of a failure to uphold these principles of our justice system to see that the Obama era rules, while well intentioned, were faulty
6
Sadly, many colleges and universities warped Title 9 to shield themselves from harsh publicity--and in doing so turned what should be rape-free zones into rape free-zones. I have taught at three universities. One experienced what the student paper declared to be a "date rape epidemic"--and did nothing.
Another set up a system of secret hearings that shared zero justice for victims and saw dismissal from school as the ultimate punishment for rape. Had the same offense been committed one foot off of school property it would have resulted in a 20 years to life prison sentence.
Truly investigate this and you will find that thousands of rapes and other sexual battery cases have been swept under the rug and hidden, unpunished. Sadly, the news media (I am a former journalist) all but ignores this nightmare. I advise and warn every prospective student, parent, and grandparent to know the state law of the state where children or grandchildren attend college and involve local, state, or federal law enforcement in any incident impacting loved ones.
This has been and continues to be a national, and quite dangerous, disgrace. Time for all who care to step it up and protect all victims and potential victims. And severely punish wrongdoers.
7
Criminal defense lawyers, like Lara Bazelon, obliterate the difference between administrative proceedings/remedies and criminal ones. The amount of due process one is due depends on the severity of the potential outcome. While privileged people such as lawyers may feel that being expelled from a college is such a horrible outcome that one should have the full panoply of due process rights, I'd suggest they ask one prisoner whether he/she thinks school expulsion is equivalent to incarceration. The process mandated by the Obama Administration regulations is perfectly appropriate for an administrative proceeding and remedy. The law is filled with analogous examples.
7
As the saying goes, “hard cases make bad law”. The facts described by the author are undoubtedly deeply disturbing. However, as a workplace investigator, I vigorously oppose DeVos’ proposed revisions and do not believe they are the solution to the problem of racism. For example, raising the evidentiary bar above preponderance of the evidence implies that being suspended is analogous to losing one’s freedom based on a criminal conviction and therefore requires the higher standard. Yes, losing the opportunity to attend the college of your choice is certainly difficult but it isn’t not life-changing in the same sense as a serving a prison term. The author is choosing a solution that is disproportionate to the problem of sexual assault on campuses.
4
Rape is an awful thing and it’s victims should feel safe in coming forward and should be guaranteed justice insofar as that is possible. But there is a long history of false accusations against black men that goes back to the era of lynching. This is why I could not understand why Democrats like Kristen Gillibrand, Corey Booker and others have been in such a hurry to abandon due process before (in Gillibrand’s case) and during the Kavanaugh hearings. Due process is all oppressed people have. Democratics should be fighting to make due process more rigorous and more universal, not less. Rigorous due process would protect both the accused and the accusers by forbidding and even criminalizing attacks on both accusers and the accused while competing claims are investigated. . It is actually not such a complicated idea. Hard to implement, but easy to understand. So I am happy that Bazelon is on the case.
4
The professor brings up good reasons to care about equity of outcome under Title IX. If we care about fairness and process and any sort of presumption of innocence, we should welcome reform.
I’m a professor at a major university. A student anonymously accused me of making them feel uncomfortable during an academic discussion - outside of class - about drugs, alcohol, relationships, and sex. These conversations were conducted about the #metoo movement and how it was being adjudicated in various settings. Mostly, her complaint was that she disagreed with the concept of their being a discussion, she didn’t respect alternative opinions, and was afraid that her grade would suffer as a result.
This was then investigated as a title IX complaint. During the course of the investigation- which was done by a single HR investigator, who was brand new to the job - I was never allowed to know any of the allegations against me, nor the process that the disciplinary process was to follow. Neither the accuser nor any witnesses were interviewed. There were no standards of evidence. The university’s own rules were not followed (either on how to do an investigation, the standards of evidence, or the rules governing speech or interactions with students). It was recommended by the single investigator that I be removed from the classroom. While this was overturned by higher authorities - this process nearly destroyed my life. A single hr investigator should not be able to adjudicate free speech.
6
This conversation really frustrates me as a survivor who has to attend college with her assailant. I’m a woman of color and I always feel like survivors of color in these stories are - as usual - completely erased.
Moreover, there is a constant confusion of criminal law proceedings (where the state has all of the power against a defendant) and civil law proceedings (where the issue and power lies between two parties). The issue with arguing for “due process” is that it assumes a rape victim has the same level of power as the State would.
The issue with going above a preponderance of the evidence standard and going at all with a presumption of innocence standard is that you would essentially be building into the process that the rape victim is lying. There are also “providing false or misleading information” counter-complaints at schools that defendants (respondents in this case) use. Under preponderance, it is fair to have that claim available, under anything higher than that, it becomes a heavy burden on any complainant to bring a Title IX claim. In order to actually address the issue of sexual assault, you have to facilitate meritorious claims and reporting.
It’s important for schools to handle this issue because sexual violence and harassment can serve as a huge barrier to being able to access one’s education. Who better to assess access to education than an educational institution?
From my experience, claims are really difficult to win, even under Obama’s rules.
7
The Title IX reforms are needed whether or not they disproportionately affect blacks or other minorities. Colleges have run roughshod over too many of the accused fundamental rights. And far too many of my Democratic Party have supported this.
3
After reading a lot of the comments and the
opinion piece, it is stating the obvious that
we have no consensus about this difficult problem. The Obama administration knowing that there would be no legislative solution that Republicans would support approached
it through the strategy of denying federal funds if the schools failed to follow the guidelines that the government authored.
It became an equal treatment under the law issue and if for no other benefit it animated
the discussion. Good thoughtful legislation
is required. Here’s hoping the new Congress
will be up to it. This should not be left to
Betsy deVos.
1
No no no no no. This is all wrong.
Post- secondary educational institutions have NO business adjudicating crimes. What is the matter with you?!
If a woman claims she has been sexually assaulted she should go to the police, not the school. The same applies to assault, theft, and murder. There is an entire justice system in place to deal with crimes, and it does so every day. Schools are not the proper place for criminal justice. They are a place for education.
DeVos can put in place all the regulations she wants but none of them will fix the irrational thinking that concludes with schools being the right place to adjudicate crimes.
19
@Citizen
As several other commenters have said, what the schools are doing when they enforce their own rules has nothing to do with adjudicating criminal cases. The panels are there to determine whether the schools' codes of conduct have been violated, and whether the accused student should be suspended or expelled. The same act can violate many different rules, criminal and civil. This was true even before Title IX existed.
The article is arguing that using a low standard of proof for violating rules as serious as these has led to grave injustice, especially toward black men. The author knows from experience that the current procedures haven't been working to protect the rights of the accused.
Should a school have to wait for the owner of a copyright to bring a case, and win, to punish a student for plagiarism? Should a school have to wait to expel a group of students who hang a noose on a tree because the local ordinance that prohibits it might be struck down for violating the First Amendment? What should happen if some students defame other students on "social media" right around the time recruiters come to campus, to get an edge?
I wonder also what your view would be if the woman accuses her residence hall advisor, teaching assistant, or professor of sexual assault. Does a criminal case have to be brought before the school investigates the complaint? Is the difference just a matter of who pays tuition and who draws a salary? Would that seem right to you?
4
Frankly, most progressives who have actually worked within or adjacent to title IX investigations are supportive of De Vos here, even if they think she is atrocious at the rest of her job.
Overwhelmingly, the people who think the current system is somehow pro-victim feel that way due to an abstract ideology, and have no grasp on the reality on the ground.
10
Campus sexual assault is a difficult issue to address precisely because most instances are he said/she said situations. I think the Obama-era rules need updating and clarification, but I think the DeVos rules go too far.
The DeVos rules inexplicably fail to require schools to cover assaults that happen off-campus in fraternities, sororities, or student housing. Since these housing accommodations fall under campus security, they should be included if a student is assaulted. They also omit online sexual harassment, which is an important issue. For example, there was a case several years ago in Pennsylvania of a student who videotaped his roommate's sexual encounter with another male student, then posted it online. The student who was videotaped committed suicide. Online harassment should be covered.
The DeVos rules would also institute a system where the charges are adjudicated in an open courtroom-like setting and high-powered attorneys are brought in. The public nature and length of these procedures, most of which will take months, would discourage most victims from coming forward.
The Obama-era rules were an attempt to address a growing plague on campus. If we need to refine those rules to protect against false allegations, fine. I don't think we need to turn campus cases into criminal proceedings because then we'll be back at square one. The standard of guilty beyond a reasonable doubt is impossible to prove in most sexual assaults, so women will again remain silent.
6
When my boys are old enough to go to college, I'm going to advise them to either go to trade school or go to online college. The return on investment for college has gotten so low, and the risks of a kangaroo court so high, that college isn't even worth it any more. They'll go farther with a coding boot camp than they would with most college degrees anyway.
3
I continue to think that "clear and convincing evidence" is the best standard a college can apply. I think as well that not having the investigator be the adjudicator is essential, and that questioning of the accuser as well as the accused, by advisers, as suggested here, would lead to greater fairness.
At my school you're allowed to bring an adviser to a hearing if you've been accused, as long as the adviser isn't a lawyer. So someone who knows what they're doing can't do it.
6
@Jeoffrey
Isn’t the more important question why not go to police? The school can’t put a rapist in jail. Do some think there is a category of nice rapists who should only be expelled from school. I know I’m stealing a line from Talledega Nights.
3
Colleges are not meant to be courtrooms. What should be required of the colleges and universities is that they report each and every allegation of rape to the police/local prosecutors. They are far better equipped to handle an investigation and pursue an appropriate outcome, including incarceration and/or, if desired by the accuser, civil awards. The Catholic Church attempted to perform its own investigations and mete out punishments as it saw fit and look where that got them. I don't believe any institution is adequately equipped to handle these situations properly. And, if local law enforcement or DAs are not pursuing these sort of allegations with sufficient vigor, the federal government can penalize their funding.
6
Here's a larger question about Title IX that I wish a lawyer would answer: Why do sexual assault victims who attend public colleges and universities get to choose between two justice systems (or choose both), while everyone else has recourse to only one?
It seems to me that victims who aren't college students are denied equal protection under the law. Am I wrong?
6
@B.C.
In general, colleges have a right to enforce their own codes of conduct, and punish students by doing things like suspending them or expelling them. This is comparable to a workplace, which could fire you if you were to harass another employee, whether or not that employee sues or makes a police report. Obviously, being expelled is more serious than being fired in at least one way: the record will follow the student to other schools and very likely limit his opportunity to finish college.
The same act can violate more than one rule. It can even violate more than one set of criminal laws. We see this when the U.S. Attorney brings separate charges in federal court after the state court fails to convict. This happened in the Rodney King case.
2
Thank you for your article. As a feminist and a person who leans left (don't like labels) I appreciate your thoughts. I'am not sure De Vos'plan is much better, but the guilty until proven innocent attitude the previous policies brought only helped reinforce stereotypes, injustice, and was often used by the administration to support personal vendettas more than fair treatment for the victims or the accused.
6
The beginning of the campaign to address what was all of a sudden declared to be "an epidemic of sexual assault on our college campuses" was suspicious to begin with! First, because college campuses are where the generally privileged and more educated and gender tolerant/considerate part of our civilization resides. So it was strange from the beginning that for example minority communities or communities in poverty (where women have few rights and statistical proof of much abuse exists) were not the first places that the Left wing leaders of this crusade mounted their war against sexual assault. Then this, what was a blatantly political motivated movement was kicked off by lowering the bar on what constituted a 'sexual assault' which predictably resulted in more than doubling the reported survey rate. And this definition went something very much like 'any sexually related action that is unwelcome is a sexual assault' which made it possible for almost any women to claim sexual assault against some male. Then as the much needed reform indicates, the colleges in order to protect themselves against the mounting sex assault Inquisition more or less just started to declare everyone accused guilty.
5
Thank you for your essay. It has been most helpful to me. I now support the change. I think it is very important to have more than one person involved in the assessment and adjudication.
5
Nobody has the ability to know what is true or false with certainty, we are prevented by the limits of our perceptions and the limits of our mortality. To find out the truth in he said / she said cases can be next to impossible. It may take years or never.
The fear that a dangerous person being given a presumption of innocence while free to repeat offenses and the fear that a false accusation may ruin a life are both based upon experience. But nobody has the right to prevent a person from getting on with their life unless there are sound reasons for doing so.
Making up for perceived past wrongs by overreacting is wrong headed. It takes time to determine the mostly likely facts and proportion of the blame. Schools cannot deny anyone an education who is matriculating in a timely way without jeopardizing their ability to achieve their goals.
4
I believe one very clever aspect of the Dept of Ed proposal is that the standard, whether "preponderance of the evidence" or "clear and convincing" would be determined by whatever standard the university imposed on its own faculty and staff for employee discipline matters.
5
I'm a woman who had a bad experience many would call rape, but I see it as a bad call on my part. I was foolish to think I was too old and mature for this to happen to me, but it did.
There is a reason that until recently, women knew better than to expect they should be able to accept a man's invitation to his hotel room or apartment, without him expecting, and forcing if disappointed, sex.
Same thing about women expecting they can get drunk like men, and nothing bad should happen to them. Nice in theory, not in practice. Bad things happen to people of either gender who get drunk.
We need to go back to that social expectation, based on wisdom about human nature.
The new expectation doesn't, and can't work,because it ends up "he said, she said" about consent, and that isn't good for either gender.
14
Call me old fashioned, but after watching a documentary about Tinder and other online dating sites, I became horrified. Most of the males on it were looking for a "hook-up" which I inferred was a one-time date for sex. Many of the women wanted sex too, but with the hope of a more lasting relationship after.
Seems like both men and women are setting themselves up for trouble when you have such casual sex with a stranger after knowing him or her for just a few hours (or less!).
11
Frankly I still see no reason a universities Title IX office should do anything more than refer the matter to police and the courts where actually due process and guilty or innocent verdicts may be achieved. Universities are not set up to be detectives and courts of law.
13
This is a difficult one for me because by default I almost always side with the woman. I just don’t believe women lie about this. But sometimes they do feel like they were coerced into having sex.
But is it possible that women should sign a contract saying they consent to sex? Then if they change their mind three weeks later they are legally bound by the contract. It may take the romance out of dating but it would also eliminate a lot of confusion.
1
@Oliver
You don't believe women lie about this?
Tawana Brawley. More recently, Justice Kavanaugh accusers Judy Munro-Leighton and Julie Swetnick.
Women lie just like men, which is why a courtroom is where criminal adjudication should take place, not a college or university.
7
@Oliver Do you really think that, in the heat of the moment, anyone would sit down and hammer out a contract, let alone hormonally charged young adults??
Although its likely true and should be considered, I find myself nearly screaming, why does the lead argument here have to be "Title XI is disproportionately unfair to black men"? How far has identity politics gone wrong when the progressive reaction to an argument that Title XI unfairly destroys the lives of white, middle-class men is "meh..."?
13
And, obviously, I'm a proponent of the view that our schools should teach hexadecimals before Roman numerals.
1
Maybe the whole point of these regulations could be to make colleges act more responsibly in making their campuses safer places. If we had this kind of security in a town of the the same population we would be screaming bloody murder.
4
Here is a quote that offers a nutshell version of the current state of things:
"Since the administration of former President Barack Obama released the 2011 'Dear Colleague Letter' — which recommended that universities adopt a less demanding, 'preponderance of evidence' standard in sexual misconduct proceedings — dozens of male students across the country have sued their universities alleging they were disciplined for sexual misconduct on the basis of unfair procedures."
This is from the Yale Daily News from last January.
https://yaledailynews.com/blog/2018/01/31/students-accused-of-sexual-assault-suing-university/
3
Professor Bazelon is correct. But what's sad is that we've become so obsessed with identity group grievances that the only route she has to assert her legitimate point -- that the current system of adjudication is inherently flawed -- is via the argument that black men have an even greater claim to victim status than do the women who accuse them.
13
@Joel
I appreciate what you're saying, because the presumption of innocence for everyone is so important, and essential. But I read the professor's article as stating that in practice, the inherent unfairness of the current rules was stark in the case of black student athletes. This is simply where it became most visible.
This does make sense, when you remember that black men going to school on an athletic scholarship are the least likely to have the resources to hire private attorneys, so they come to her free legal clinic. I wonder whether she also sees more veterans, for similar reasons.
These are not the only Devos Title IX "reforms." She took exactly 13 days to overturn guidance from the DOE and DOJ which protected transgender students K-12. Like the rest of this administration, Devos contends trans discrimination is not sex discrimination. If this position is accepted by SCOTUS some day, all of Title VII, Title IX Section 1557 of the ACA, along with other protections will be unavailable to the transgender population.
Perhaps the headline shcould distinguish which of Devos' Title IX reforms is being supported by this feminist Democrat, especially given this rather strange reference to "trans-positivity."
All of this said, the due process afforded to anyone accused of something so serious should be continuously reconsidered. I agree the investigator should not be judge and jury, if that is what is occurring. The point about mediation is interesting but I wonder if this is referring to mediation agreements which would keep sexual abuse hidden. In the past, were those mediation agreements burdened with confidentiality provisions?
Sounds like a complex issue on which the pendulum has swung to and fro with sometimes unfair and crushing impacts on real lives. Who is saying the issue should not be reconsidered? I'm all for it but that has nothing to do with my support of, for example, transgender rights.
2
The issue seems to be that many universities have somehow established their own sovereignty and with it their own judicial system.
Parents and students should be made aware that attending and residing at these universities is like moving to a foreign country.
5
This is an issue of due process. Some colleges interpreted the 'dear colleague' letter issued under Obama to effectively eliminate the rights of the accused (see the judges ruling in the Brandeis case). When there were absolutely no consequences to false accusations women could damage men's reputations and lives on a whim. This does not mean that victims shouldn't be respected and that accusations should not be taken seriously, it just means that the accused is given their constitutional rights to due process. Unfairness in the past is not an excuse to be unfair in the other direction going forward.
6
THE DEVOS RULES Have some procedures and processes to recommend them. I write these words with the greatest of trepidation. But I must, being objective, accept the facts as described by the writer. The ultimate proof that the current system for dealing with allegations of sexual abuse on campus are biased is that the large preponderance of those found guilty are men of color. I also believe that requiring that students complete workshops/courses in asking and receiving informed consent when physical contact is part of the interaction. It sounds hokey, but asking somebody, Can I shake your hand? is a neutral way to begin practicing getting informed consent. Clearly identifiable responses can also be practiced such as, Yes I'd like a hug. Or, no thanks, I'd rather not hug. It may seem unwieldy, but it's the way to ask for and receive informed consent when physical contact is part of an interaction.
Why wouldn't someone who believes that they are the victim of a crime not report it to the police. IF and when, the accused is found guilty in a court of law, then they should be expelled or at least the school could institute a system that prevents the victim from having to interact with the accused. Since when, are schools quasi-law enforcement agencies. As far as Betsy De Vos, her and this administration is motivated by one thing and one thing one only, dismantling anything that Obama and other Democrats have done. Lara Bazelon certainly has many good points, well educated and experienced, too often black people are not given due-process that white defendants are given. The state prosecutor, based on circumstances should decide to charge the accused or not. If only the law was so color blind. Giving Betsy De Vos credit for anything however is misguided.
4
@DemonWarZ
Ask the gymnasts and their families. I have no idea why they didn’t go to police. The media is afraid to ask them.
3
From what I've witnessed in the workplace, about a third of sexual harassment claims are legitimate, a third are ambiguous but willfully interpreted for the worst, and a third are malicious. In every case, the man loses.
I read about a study by the Air Force that drilled down on harassment claims. They found about a quarter were legitimate, about half were ambiguous, and a quarter malicious.
So, it appears that the sexual harassment machinery is devoted to punishing innocent men for the most part. That's why my default position is to assume the woman is exaggerating or lying. I've heard too much hyperbole from women who want to hurt men gratuitously.
8
@Steverino Smart comment in a dark world.
1
"Due process", a standard of more than "51% he might be guilty"--what radical concepts! I have advised my son that he needs written and signed consent from any sex partners. Why have colleges not implemented written consent--it ain't that difficult!
2
@Rick
Written consent is not a solution. Consent can be withdrawn at any moment.
@Rick
On the other hand, a cancelled check should be sufficient if that is what you meant by "written consent".
I’ve worked at 6 different college campuses. I wouldn’t trust university administrative staff to investigate and adjudicate a parking ticket, much less an allegation of criminal sexual behavior.
Also, as others have said in these comments, many young people make poor choices about sex. There should be a high threshold for turning bad sex into behavior that warrants expulsion from college or criminal sanctions.
11
Shouldn’t sexual assault be handled by the police instead of by colleges?
Colleges want to save their reputations so have a strong incentive to sweep such accusations under the rug.
6
It says something worrisome about the left that the author has to frame her support for due process in terms of minority rights. The implication is that if black men and white men were equally likely to suffer as a result of being denied due process under Obama-era Title IX guidelines, then those policies would be legitimate. That's baloney. We shouldn't support due process rights because they protect black men (although they do). We should support them because they protect EVERYONE.
10
If she was shot on campus wouldn't the police be called? Sexual assault is a crime and nothing that should be under the university system. A crime is a crime. The accused deserves justice also.
8
>>>The Office of Civil Rights does not collect data on race in Title IX cases, but the little we know is disturbing: An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.<<
This doesn't surprise me about Colgate, where I experienced a similar situation with my son, a 20-yr old who was an athlete caught buying beer at the local store. He lost his scholarship and kicked off the team. All the "Kangaroo Court" said in a 20 minute hearing that I drove 11 hours to attend was "he had been warned because he harassed a white girl by asking her "where is your boyfriend?"
3
Why include the race of the people in this "hypothetical?" I know it was based on a real case, but as we're not given names or other identifiers, why does it matter that the accused college student was black and the accuser white?
It feels at once creepy -- playing to stereotypes of sexually predatory behavior -- while at the same time preening -- look how progressive I am, taking on the defense of a black male accused by a white female!
Young newspaper reporters are taught not to include race in crime stories unless it is absolutely necessary, as in a piece on police looking for someone matching an eye-witness description. Otherwise, using race could just reinforce prejudices. That same standard would apply here.
6
Mandatory alcohol education for all incoming students certainly wouldn't hurt.
3
My company's legal counsel is currently engaged in dozens of corporate sexual harassment litigations. One mere unsubstantiated allegation of any type of sexual harassment, in particular by a supervisor can and often does end up in multi-hundred thousand dollar settlements.
Some form of substance has to be delivered in these and any other type of civil complaint. The fact that black students seem to be on the receiving end of false allegations and subsequent processing should not be surprising in light of so many other instances of false reporting regarding people of color.
2
Ms. Bazelon’s example is premised that the victim is lying and that we must protect all accused because of a general prevalence of “false accusations” and because many tend to be African-Americans.
I think this is a flawed rationale. I am a man, but I’ve known and been friends with many women. I don’t know a single woman who would lie about such things. Are there some, yes. But how many? One in a hundred million?
Ms. Bazelon’s notion that we need to change the rules to protect the falsely accused over the victims of sexual assault is predicated on some misogynistic mistrust of young women not being full agents of their bodies. As though there are thousands of false accusers out there. That regrets over consensual sexual encounters doesn’t lead to pints of ice cream and hot showers as per one example, but instead to false accusations before college authorities and possibly the police and all the pain and discomfort that brings.
Frankly, I find it hard to believe Ms. Bazelon can call herself a “feminist” or a “Democratic”. Her defense of Ms. Vos’ proposal is based on a fundamental mistrust of women and young women telling the truth.
What the heck?
4
@J.D. So one falsely accused male is OK?
2
Laura Bazelon, who cares if you are a Democrat and a feminist? You do not speak for all democrats, feminists or women. Your opinion is simply your own.
6
If the one thing that everyone can agree about is that a Title IX investigation does not deliver justice for anyone, man or woman, what does that tell you?
2
Glad I dated 40 years ago in college, not today.
3
This is a fair point, people don't understand how prevalent these cases of false accusations are against black students, its so rampant that the general advice that black students get as they go to college, especially on an athletics scholarship, is to stay away from white women.
2
You may have a point. But I highly doubt that De Vos's intent is to prevent unfair treatment of young black men.
6
First, I take issue with the race based argument in defense of due process. All should be entitled to due process in America. And so to make a race based argument as we have read here is nothing short than an outrage. However, the larger issue, devoid of race, is a critical one: colleges, just as the NFL, and all other non-judicial organizations should not investigate any serious crimes. There's a reason why we have a Constitution, courts, and the entire judicial system. As dysfunctional as the Justice system is, it's certainly better than organizations that are not equipped to render critical judgements that may impact someone's life forever. Add to that 1) the fact that there's no genuine burden of proof in these quasi criminal "investigations"; and 2) the fact that these organizations have their own interest at heart, not the participants'. So, I don't like DeVos but I can see where due process is critical and should not be abandoned. We need truth, not scapegoating.
1
I have both served on, and defended individuals in campus disciplinary panels. The fact is they are not designed to serve as legal venues and should not be used for the purpose of determining criminal guilt or innocence. They are strictly advisory and should remain that way, handling the less serious harassment or misconduct claims. The question for the campus is the core of title IX, protecting the welfare of the students and thereby providing equal opportunity for their education. The accusers have to be treated fairly and taken seriously. For the more serious sexual assault cases, the accusations should always be investigated but the defendants must also have the benefit of their constitutional right to the presumption of innocence; they should only be suspended from campus if the administration makes a determination that they pose an immediate threat to student safety. Let the courts decide their criminal liability and then the campus can take subsequent disciplinary action if it is warranted.
1
@MTDougC "if the administration makes a determination that they pose an immediate threat to student safety. Again, that is an incredibly low bar that can destroy a reputation and a future. What avenue of appeal would there be and would any competent counsel say not to error on the said of caution, i.e., suspending stops the risk of adverse from the accuser for not taking step to ensure their safety.
2
@MTDougC
Is the school's administration able to determine if the accused student poses a threat to student safety ? Do they already do this as part of their admissions process ?
1
@Robert Avant This is a process that the University conducts fairly often for many issues, based on the student's conduct, background etc. There is process for this and note that they are only suspended, not expelled. They do have a right to appeal. They are not "convicted" of anything but responsible for their behavior. Suppose an accused student has a record of misconduct, they came to the attention based on the accusation, then later they march into a classroom with an assault weapon. People like you would howl because the university didn't protect the students. The university has an ethical and legal responsibility to protect the students, faculty and staff. Sexual misconduct and assault is no exception.
1
I notice that in order to preserve Political Correctness, the accused described in this article is a "person of color" while the accuser is white. So race trumps gender in this context. Perhaps there are some things in the DeVos regulations that are needed to deal with sexual harassment on campus, but why not face the larger problem (which needs serious discussion) and just label the accused as male and the accuser as female?
In the New York Times, it always seems necessary to get our PC ducks in line before anything goes to print. In this simplified universe, not all whites are necessarily bad (although editor Sarah Jeong would have us think otherwise), but all baddies are white.
How boring!
11
Race trumps gender in every context in the United States-
For reference see Hillary Clinton vs Barack Obama and Hillary Clinton vs Donald Trump after 8 years of Obama-
The societal fallout and rejection is always borne by women when race and gender come into the equation.
5
@Marlene Barbera No, not really.
Correct Donald! The ducks are in a row.
1
Emily Yoffe explained the issues with Title IX very well in this article: https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/
2
Expecting universities to come up with credible methods to investigate and adjudicate allegations of serious crimes is absurd. We may as well entrust NYPD Detectives to conduct seminars on post-modernism or review studies for scientific journals.
7
I've read through a lot of these comments as well as the article and here's what I'm thinking right now - if the behavior rises to the level of sexual assault or rape it's really a criminal matter and should be handled by the criminal justice system. If we're trying to provide an educational opportunity (that is what colleges do - or try to do) then it may be worthwhile having a parallel system internal to the institute of higher learning that provides, as some have noted, penalties such as reading up on correct behavior, writing essays, perhaps even some form of service to the college or reparation to the victim. When it's a crime, that's what we have criminal justice for. NEITHER of those systems is color blind, I'm afraid, and it still very much worth keeping track of disproportionate allegations based on race.
4
It only occurred to me somewhat belatedly: hasn't our Secretary of Education got anything better to do?
@John
She wouldn't have to be dealing with this if the previous administration hadn't already inserted themselves.
4
@John Obama's education department had nothing better to do than to instruct universities to set up these kangaroo courts in the first place, having the current one take a little time to undo that damage seems worthwhile.
6
@KM OK, I don't disagree with your sentiment on this.
Schools are not equipped to do this sort of investigation and trial. So why don't we just let the justice system handle it?
6
Rape is a crime. If you have been raped on campus (or anywhere else), call the police immediately.
If the perpetrator is eventually found guilty (beyond a reasonable doubt, in a proceeding conducted by professionals who are familiar with the rules of evidence), that is the time for the University to weigh in on any questions about public safety, etc. Until convicted, the accused must be treated as innocent.
If you are unhappy with the way the criminal justice system handles this problem, contact your elected representatives.
11
Why is ANY of this left to university administrators?
Criminal matters should be up to the police to deal with. The REAL police, not the campus rent-a-cops driving golf carts around.
It may be left to the school to determine if there is enough of a threat to student safety to suspend the accused from school, but other than that, the university should stay out.
Why? Because the school has a hundred messed up reasons to botch the case. Maybe the star football player is going to help them win a championship. Maybe the accuser is the child of a wealthy donor. Maybe a well-connected student is rallying the entire greek system to pressure the administration unjustly.
The messed up thing is that universities were allowed to hide in their ivory towers in the first place.
11
In today's world what was once simplistically deemed "romance" has now become a cause of action for both civil and criminal courts. The problem of sexually inappropriate or misunderstood behavior (or words) between people is not going away. Ever. Add to the mix the fact that every so often people lie about events for malicious reasons only deepens the abyss. Geez, it gets complicated.
Maybe Bob Marley had a good point. No woman no cry.
7
Ms. Bazelon: Thanks for speaking up on this issue. All of us must accept the reality that (a) false accusations (b) racial bias and (c) a complete lack of due process exist under the present system. We have transformed our society from a value system of "innocent until proven guilty" to "guilty until proven innocent" in the realm of male-on-female assault (sexual and otherwise). Trust me, the Harvey Weinsteins and his ilk of this world truly sicken me. But the present system in our colleges for adjudicating these matters is a modern-day version of the Star Chamber for those accused of sexual assault.
6
Thank you for having the courage to write this.
3
One thing I learned from the Kavanaugh business is that false accusations of sexual assault are extraordinarily rare, so proof and corroboration are unnecessary.
@Hunt
I see that you choose to be facetious.
My problem with Kavanaugh and I suspect that this is at the heart of the problem that most people have with him as well as with Donald Trump is not that either of them made mistakes as youths, even grave mistakes, but that they have not had to face those mistakes and so have learned nothing from them.
Did you see Kavanaugh's performance in the "job interview" for the highest court in the land? He was evasive, rude, flippant, and arrogant. He lied on several demonstrable occasions. Is this seriously one of the nine wisest people in America to get a lifetime appointment to the Supreme Court?
I understand that people see what they want to see and Republicans decided to make this a witch hunt. It was a job interview. And Kavanaugh was abysmal. He should not only have been denied this new job but removed from his current job.
NOT because of who he was at age 17 but of who he is NOW. An arrogant, entitled, angry, under qualified fool who was appointed for one reason - Donald Trump needs a guaranteed vote in his favor when Trump finally shreds the Constitution once and for all.
So please save your tongue-in-cheek jokes for something less important than a lifetime appointment that will profoundly alter America's future for the worse.
Good day to you.
4
@david
Pretty harsh commentary. But unfortunately, not surprising.
@David
How would you react if some lady from nowhere accuses you of these egregious things that you did not do?
Its more than a job interview, its defending your honor and your family. I think if he was not voted in but kept his dignity he would be happy.
I am curious what demonstrable lies he said, too...
This is not difficult. I strongly support women’s access to education and protection from sexual misconduct, but 2 wrongs don’t make a right. My son’s friend was falsely accused of date rape 3 years after the fact. College leaders at Bard College explained they had to send him away a semester to protect their federal funding. No evidence, no legal trial, no justice. A young life interrupted with all the social fabric tearing, emotional distress and financial costs that went with it. Tragic. The young man was white so this wasn’t a racial issue. I suppported Obama for many things he championed and think Betsy DeVos is misguided on almost everything Is doing - except this. This is not a woman’s issue or racial issue or men’s issue - it’s a a human right’s issue.
16
We have a giant rape problem and a giant racism problem in this country. If an attempt to fix the rape problem exposes a nasty side of the racism problem, then the solution is not to then reverse the fix for the rape problem, it's an opportunity to then work to fix the racism problem.
3
@Swinta "We have a giant rape problem and a giant racism problem in this country."
Cite facts and statistics please. Otherwise you are screaming the sky is falling.
If it were as bad as you say, people of all races and colors from all over the world wouldnt want to move here. I suspect you are rampantly over the top with your statement.
3
@Swinta
I am not sure the racism problem is as extreme as you infer, but I do think this is an opportunity to move forward to fix both problems, no matter their extent.
We shouldn't throw the baby out with the bathwater...
Isn't this what Zuckerberg and his classmates created Facebook for?
If I murdered a fellow college student it would not be left to college administrators to solve. Why is sexual assault any different?
11
Then you don’t support women’s rights just like Susan Collins!
1
A Black student is assumed guilty, yet proven White rapists like Brock Turner get a slap on the hand. Figuring out some meaningful, practical method for due process is only one awful part of a vast problem.
1
@DG So let's work to move forward and fix all of problem, not throw out this solution because it does not fix the entire piece.
The arithmetic of competing victimologies aside, anyone interested in just how screwy the current Title IX system of sexual assault adjudication can be, should read the below account of a 2013 case at Occidental College in Los Angeles.
https://www.esquire.com/news-politics/a33751/occidental-justice-case/
2
and there were jews that supported hitler, whats your point? why does NY Times give these people a platform? why not just have a mexican telling us why putting babies in cages is a great idea.
What surprises me about all these discussions is that while we are encouraged to believe the person who says an assault occurred, we aren't simutaneously encouraged to believe the accused. Is it not feasible that in a large number of cases there are mixed messages, borderline "enthusiastic consent", post event regret (much of which originates with a sexist viewpoint on acceptable behavior), alcohol induced haze, and/or any combination of the above. It's not blaming the victim or not believing the victim, it's understanding the totality of the circumstances and adjudicating if there is reason to believe a crime has been committed. Which, of course, should be done by the police and courts.
4
Under one of the most fundamental principles derived from our constitutional protections is the right of an accused to confront his accuser. This rewrote centuries of injustice where accusations alone were used, often as a pretext, to condemn the accused.
There is no easy way to circumvent this right, nor should there be, or it might be impossible in many instances for a wrongly accused to demonstrate their innocence.
We create a dangerous precedent if we begin making exceptions to that process.
However compelling it may seem to soften the rules in the highly sensitive matters of sexual assault, in the end, we are making the exception based completely on subjective factors. We weigh the presumed emotional hardship of the accuser against the right of an accused to, for example, question the accuser. Thus, for purely subjective reasons, we conclude that the importance of avoiding the possibility of further trauma to the accuser outweighs and dilutes the accused rights to offer a defense.
Administrative proceedings may not be subject to a innocent until proven guilty standard, but that does not simply mean that an accused is guilty until proven innocent.
The right to confront an accuser is essential to defend oneself.
Once we start accepting subjectively based departures from this fundamental right, we endanger the existence of one of the most essential protections afforded, for very good reason, by our constitution.
4
The author is missing the point. The privileged will make use of the "reform", but the ones who need to be protected will find it even harder to get justice. Just as one thinks the system has been getting less hard for victims to to come out in open, this regressive reform is going to push things back farther than things were before.
2
As far as I am concerned, every claim of sexual assault at a educational institution must be turned over to the police. Educational institutions have neither the expertise or the desire to act as judge and jury. But if a accuser does go to the police, the Police should immediately notify the institution which would be under obligation to issue some kind of restraining order keeping the accused away from the accuser.
9
Again, it is the police and the courts which deal with restraining orders, not universities.
7
Take it a step further and require the state-side based military to do the same thing, and report all alleged sexual assaults to the local police jurisdiction! It would free-up the military of a lot of paperwork and headaches, and cut down on frivolous accusations of assault as well..
1
“Frivolous accusations of assault”
is an expression that embodies all that
is inadequate and wrong about the,“traditional” way we manage sexual
crime.
1
For those who say victims will have no recourse I think you forgot that you are discussing a criminal allegation. A victim has every right to pursue a criminal complaint if there was an assault. A victim of an actual sexual assault always has recourse to the criminal justice system. That system can direct there be a no contact order of protection so the complainant does not have to interact with the accused. District attorneys offices have crime victim advocates and extensive systems to protect the victim. Victims choose to forgo this option, no one is preventing them from going to the police.
Offensive conduct, conduct that violates university rules still needs basic procedural due process because banishing a student from a campus and labeling them an offender can have life long repercussions. We are a country of laws where due process is equally important in civil, criminal and administrative matters where one sides faces a penalty. Don't whine about "the victim has already been harmed". The victim was not harmed by due process. The accused should face no penalty with out a minimum of fairness which means due process. Two wrongs don't make a right. .
9
Maybe it's an extreme idea, but is there anyway to formalize consent? Like in writing and with a waiting period to reduce the likelihood that consent was obtained under duress? It could be a voluntary arrangement but one that would protect both parties. My take spontaneity out of relations, but everything has a price.
1
@Kurtis E I heard about a cell phone app. that two people can download and then both express consent and a record is kept of date and time the consent was agreed to. It does wonders for trust in a relationship.
1
I teach at a university, and I have no confidence my colleagues, administrators, or students are as a group up to the task assigned them under the Obama administration. Assault or rape should be reported to the police, and the judicial system should handle it. The only sensible involvement for colleges and universities is that guilty pleas or verdicts should be reported to them when students are involved.
There is a larger matter to be considered here, and that is the question of what exactly do we mean when we speak of justice. Victims cannot expect their pain and suffering will necessarily be diminished, whatever the outcome. What can the justice properly be asked to do beyond attempting to protect society from people who engage in assault or other criminal behaviors?
15
So it is your view that a real victim should be required to sit in the same class as her attacker for the better part of 6 months to a year while his criminal case works its way through the system.
Sorry Prof. you get an F
A better answer was the Obama rules with a simple twist. If the University expels the student prior to a verdict the expulsion is generic, not labeled sexual predator. The accused is then free to apply to any of the 2400 other universities.
2
Assault is a crime, report it to the police, that's obvious.
Must be why it hadn't occurred to me before.
As to your second point, receiving comfort in justice served? That's rooted in human nature.
2
I agree with the professor here. This needs to be handled by the legal system and not the university. If the student is found guilty he will be expelled and not being able to enroll on the other 2400 institutions. Until proven guilty, the student has the right not to have his reputation and future destroyed by an institution that is ill prepared to handle such situations. BTW, I am writing this as a mother of college kids and a person who went through university herself. The current culture at American universities needs to be revisited. Binge drinking, porn consumption from a young age on, limited experience with real relationships all lead to these horrible situations.
3
"... 50 percent of the sexual-violation accusations reported to the school ..."
In order to have any significance, this would need to be 50 percent of a not-too-small number. For example, one out of two would mean nothing statistically.
4
there are so many things I don't understand, and in this case here's just one of them:
why is an allegation of rape handled differently according to where it supposedly took place? if it happened in a hotel, a restaurant, an apartment, a public place, I assume the police are called and, if cause is shown, things might move on to a law court.
so how come if it takes place at a college, it is the college that takes the complaint, does the investigation, decides on guilt or innocence, and administers punishment? would the same be true of complaints of another nature, such as theft?
14
The more frequent problem is campus sexual assault.
The less frequent problem is alleged assaulters being punished without adequate due process.
An aside: apparently, a lot of these incidents involve excessive drinking, but nobody ever suggests that students drink less.
The solution is to require a due-process procedure which adequately protects both parties.
That may be what De Vos is trying to do. I don't trust her and I haven't yet read the proposed rules, but there is a problem to be solved.
As far as the race issue, an anecdote based on Colgate isn't proof, but is it surprising that African Americans are poorly treated in a quasi or fully legal system?
4
Black male students aren't the only ones whose lives have been destroyed by a false accusation. These changes to protect due process are long overdue. Women should not be blindly believed simply because they make an accusation.
13
You are not a Democrat or a Feminist; this is the newest tactic of the right. Infiltrate to destroy.
While these are thorny issues, the proportion of validate sexual assault versus the mis-accused should guide policy. NOT incidental cases like you have cited.
4
You are literally saying that the minority should not have any rights.
3
Colleges and universities have no business investigating and adjudicating rape cases. Full stop. I sympathize with Ms. Bazelon’s experiences and believe her. But there is a larger fundamental issue at stake.
Rape is a felony. Rape is an index crime. It is a grave criminal matter for both the (alleged) victim and offender.
The truth is that colleges and universities don’t care about rape, victims, and rapists. They don’t.
They only care about the problems a rape accusation causes for the institution - potential liability, tarnished reputation, appeasing victim/accused/with as little noise and publicity as possible. That’s a real circus act - appeasing both victim/accuser when they have to attend class together.
Colleges/universities only want to be seen as if they are doing something. Hence, these kanagaroo courts and committees.
Make no mistake: colleges and universities don’t care about rape and how it affects their students.
If they did, they’d use all that brainpower and endowment money to liaison with the police; build on-campus rape crisis centers equipped with necessary staff and equipment (rape kits, beds);!create zero-tolerance alcohol consumption policies/consequences for underage students; keep publicly available detailed statistics.
But that requires acknowledging the problem. And they don’t want to do that.
12
Your thoughts seem both nuanced and, on balance, correct.
However, I wonder if they are in any way similar to the motivations for proposed changes in the law that drive Secretary DeVos.
2
Sex crimes among young people is especially a quagmire unlike with the Harvey Weinstien variety. There is so much room for misinterpretation, impaired reasoning and after the fact regret. Let the police investigate the matter, the embarrassment of the institution is nothing compared to the impact on the young lives involved. Truth is critical.
So it would be OK if the falsely accused men being kicked out of school were all white? The problem arises only because black men are disproportionately affected? I kept waiting for the author to state that the problems her black clients experienced were illustrative of the deeply flawed system for all accused, but in vain.
.
I suppose this isn't surprising coming from a law professor who runs a legal aid center for low income students, but only black ones. White low income students can feel free to exit the premises, presumably.
.
Did working class white men really leave the political left, or were they told to leave, and left no place else to go but the populist right?
11
What percentage of those accused are campus athletes, as compared to the percentage of males athletes in a school's student body? Are we studying a disproportionate number of young men who are athletes first, students second, and spending a lot of time segregated in a sporting culture of violence?
6
I guess even a clock made by Betsy DeVos can be right twice a day, so to speak. So, for me, it's comforting to think we live in a country where we can address what is obviously a damaging flaw in our culture- the "boys will be boys" mentality excusing men who force themselves on women- and even be angry about it, while at the same time we can work hard to be fair to the accused.
During our current cultural moment, where flux is the rule of the day, it's important to take into account the point of view, ideas and needs of all side of every equation. This new rule looks like a step in that direction.
6
The answer to this dilemma is clear. Consent needs to be defined as everything short of active resistance. My other suggestions are written consent forms, entered into as part of the terms of service for Tinder and filming of all sex acts, stored in a safe place like the Apple cloud.
4
The Apple cloud?
@No
The filming of sex acts...stored in the cloud. Sounds like a great idea. Just ask the Facebook users, the government employees, the (insert your favorite data breach here) what a great idea this would be.
take it all out of the colleges and in t the criminal justice system where it belongs. period, end of story.
11
And there is also that whole Duke lacrosse thing where a lot of peoples disposition toward believing that lacrosse players at Duke must be privileged monsters let them jump to erroneous conclusions. There should be due process and we should all try to be mindful of our prejudices. We should also do our best to protect the vulnerable.
14
Restoring basic due process protections to Title IX regs is the right thing to do. Two other points: (1) As parents, we should strongly encourage our daughters to report any sexual assault; too many men get away with crimes because of a lack of reporting; and (2) More sexual assault cases should be handled by the police, not by university administrators; these are crimes.
10
Everyone should be presumed innocent but all plausible accusations should be investigated. Investigators should not be adjudicators. Both accuser and accused should be heard and interrogated to be fair.
5
Agreed, but the only people who should be doing the investigating are the trained, professional investigators, aka the police, rather than a "panel" of academics and administrators.
6
20% of women will be the victims of sexual assault in their lifetimes. Sexual assault on campuses is epidemic even with the massive amount of under-reporting. In the larger society, most rapists get away with it with and most victims cannot expect justice. It is the 'perfect crime' in that if you commit it, you can rest assured that you will not be punished 99% of the time. Given all that, isn't that the problem we should be focusing on? Is the answer to the very small percentage of men who are falsely accused, to put victims on trial to be re-victimized even when it is not a criminal trial and the punishment is not a conviction or loss of freedom? If 20% of all men were sexually assaulted, would we be having these same measured discussed about fairness and justice and due process for less than criminal proceedings?
2
DaniMart-
The problem is that I’m not as smart as to automatically know when someone really is one of the victims you talk about.
Further- I have been falsely accused accused of domestic violence and had an ex parted order signed by a judge that took away my children and home.
The first chance I had at due process was three weeks later in front of the same judge who had already labeled me as an abuser.
False accusations are real and have real life changing consequences.
I’m concerned that some of the victims you speak of may not be the real victims
13
The 20% statistic could be most charitably described as dubious, and there have been a number of analyses that show the rate is more like 2.5%. This is still obviously unacceptable, but the 20% claim, which categorises unwanted touching and morning-after regret as sexual assault, trivialises the horrendous experiences of women who have been violently raped.
6
@DaniMart If assault on campus were truly epidemic, wouldn't we expect to see the numbers of women going to college declining? If I told you that a particular shopping mall had an "epidemic" level of assault do you think any women would go there? I don't. This is why I question the use of the word "epidemic." One assault is one too many, but that is not the same as "epidemic."
1
US colleges and universities are woefully inadequate to the task of judging sexual assault accusations. These are criminal matters and should be handled by competent civil authorities.
9
What needs to occur is that the education system needs to stay out of the business of law. STATE and FEDERAL law should handle this and DeVos out of the conversation.
About the SEX.
We do this and it is normal.
I really wish women would simply stay out of the situations that make them vulnerable. There would be no chance for confusion. As a man I'm getting kind of sick about all this because normal sexual relationships are hard enough let alone worrying about getting accused of forcing someone.
5
I agree with the piece but I find it incredibly disturbing, and racist that the author only cares about the Injustice and lack of due process because they involve black males.
the implication is not the same Injustice and lack of due process applies to white males it's fine. I also know that the author specifically says she leads a pro bono clinic for black males accused of sexual assault on campus. does that mean if a poor white male comes to them for assistance because he has been accused of sexual assault the clinic would turn him down?
if so, then that is an abominable disgrace and the author should be ashamed of herself.
11
Why are educational institutions saddled with sexual assault claims? This should be entirely a police and court matter. Period.
8
(His suspension was based on this allegation and a second allegation by another accuser, which was found to be unsubstantiated by the evidence; that accuser is appealing.)
Uh Oh - second accuser -something smells rotten in Demark!
To say nothing of MY suspicion that everything De Voss does is politically motivated - based on shabby research and tainted with racism )and her general incompetence)
1
“An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.”
As always, this is taken as proof of systemic bias against Black men. It is so forbidden to suggest that this might also indicate a problem in the culture of some Black communities that comments like this are unprintable.
7
assuming your statistic are correct, it would be interesting to know more about the preponderance of accusations against the black students, and more about who these students are.
it would be good to know, for example, if the accused students are more representative of the student body at large, or more representative of students drafted for athletic abilities.
in short: is this a male-female issue, a black-white issue, an entitled football player issue, or some combination thereof?
7
This Democrat and a Feminist seems to working from the same basic assumption that women can't be trusted, their morals are less than those of rapists, and they are simply lying, coniving people for who false accusations are common as putting on lipstick.
One of the fundatmental problems is that predators aren't stupid and that they can use the law that was written for other types of crimes to protect themselves. If they know their victim needs 10 unimpeachable witnesses he will be sure he is all alone with the victim.
It seems that men are so comfortable holding all the power they don't understand that that leaves others feeling powerless and having to cope with it. When suddenly the men don't have all the power they are uncomfortable and don't like it and aren't used to coping with it.
2
@Marie
As a mother of a son going through this - I'd hardly call my son a predator. And yes, women lie; they thought a mutual consensual hookup meant they were in a relationship, when they are told no, they file a complaint (yes, this happens). In some cases, they seek the attention they receive being a 'victim' (multiple accusations against multiple young men). Yes, this happens. This is has little to do with power and more to do with personal responsibility....from both the men and the women.
And since when does someone who is accused doesn't have the opportunity to defend themself?? This is a far more complicated issue than you understand - unless you've been there. For the record, I'm a full blown, feminist, left winged Democrat who wore the pussy hat proudly for every march in our area.
6
@Marie
My daughter is in HS ...
thanks for the laugh ... your opening paragraph describes so many high school girls ...
Well ...how they act towards each other anyway ...
If criminal courts are too "harsh" to adjudicate rape cases, and universities lacking in competence to do so, why not set up specialized courts, similar to juvenile courts, designed to handle such sensitive cases?
3
The bottom line here is the same as it is in virtually all areas of life where rights are adjudicated, there must be due process, and due process includes a meaningful opportunity to cross-examine. We do not incarcerate rapists without a trial with cross-examination. This is a bedrock concept of our legal system. We cannot allow young lives to be destroyed without the same basic fairness. This should not be subject to debate.
8
I've never understood why schools are given any role in investigating and adjudicating sexual assault claims. Sexual assault is a crime. If an accusation is made, it should be reported to the police who should handle the investigation and hand the results of the investigation to a local prosecutor to either pursue or drop. These authorities are empowered to conduct these sorts of investigations, have the expertise to do so, and have a burden to meet Constitutional protections. School administrators have an inherent conflict of interest: protect their institution's reputation, protect the rights of the accuser, and the rights of the accused. As the columnist illustrates, that doesn't work very well for any of the parties involved.
If a student were accused of robbing another student, or murdering another student, would the school handle those investigations too? I don't think so. So why do we give them the responsibility to investigate sexual assaults?
9
No one should be railroaded by the criminal justice system, much less college staff with no experience in investigating or prosecuting allegations of a crime, who also act as juror.
I, too, am a Democrat who was appalled at the Obama Title IX policies.
As a feminist, we have to do what is necessary to raise women who report sexual assault to law enforcement & provide them all the support they need to see their cases adjudicated. And, we have to hold law enforcement & prosecutors accountable when they work against that goal.
6
Public universities should be able to resort to a separate administrative adjudicatory body funded by state legislatures to decide whether any student should be able to continue as a student after being accused of wrongdoing against another student, whether it is rape, hazing, harassment, assault - whatever. We owe it to students not to harbor those who harm others. We owe it to the innocent not to separate them from a learning community based on a lie. Universities are too interested in their image, and ill equipped for this task. Appointees should include professional sex crimes investigators, educators from other institutions, retired judges, etc. They should be able to compel witness testimony and the production of documents. The standard should be lower than criminal, and focus on the future safety of the campus community. And college students need a LOT MORE education and training on legal consent standards (I've read many don't know legal definition of rape or anything close), and the data on the factors that can raise the chance of becoming a victim, or of one's rapist not being charged - also on strategies for boundary setting . FINALLY - WHY are parents paying for schools with fraternities and athletes constantly in the news for engaging in what is at the very least unsavory and often criminal behavior with others? I don't get it. I really don't.
3
Thank you for this article. Due process is essential to justice being realized. My already existing objections to the 2012 “Dear Colleague” letter were more deepened when I read how disproportionately the regulations disadvantaged young men of color. I will comment in support of the revised regulations.
4
An App would fix this for many students.
In the heat of passion, stop, log into "Letsdoit" and have the sexual partners each take a picture and click "yes",- it snaps a picture and dates the transaction.
If there is subsequent physical, medical evidence of forcible rape, then the transaction is invalid- a deal breaker!
4
Betsy Devos is an insult to all women. Hopefully she rots in a cell with every other billionaire that sold out the United States to gain Trump's favor. Just as both Bush's have been war criminals, she too will be remembered for her crimes against humanity. But she's white and knows how to be polite so we have to honor her or else the GOP has too much ammo for their campaign ads.
1
Preposterous, isn't it, that 'a greater than 50 percent chance' of being perceived as guilty is enough to convict an accused person.
There must be a way to protect women that doesn't do this. Perhaps one start is to stop automatically referring to an accuser as a 'victim,' a word that will tell each person who hears it that the accused person is the 'victimizer.'
It's called 'neurolinguistic programming.' Trial attorneys know all about it, and so should Title IX policymakers.
8
At at the heart of the mess on campuses is the mess we've made of young people, raising them to be totally unprepared for the harsh realities of life. We have failed to teach them any kind of coping skills or resilience. They have come to learn that any misfortune or bad outcome is not only catastrophic, but unjust, and that every such incident must be adjudicated by an authority whose primary job is to protect them.
Add to this the fact that these are indeed young people who are often having their first real sexual encounters, while being dosed with a large helping of feminism 101, and suddenly you have a moral panic.
The way you come to the conclusion, as good progressives demand, that colleges are hotbeds of "rape culture," or the ridiculous and virtually unverifiable statistic that "one in four women will be sexually assaulted" on campus is to define "harassment" and "assault" to a point beyond absurd.
A woman discomforted by being asked on a date by a man she is not attracted has not been "harassed." A crude comment or awkward pass is not "assault." But for an administrator to make this point is to risk his/her career, to be demonized as someone indifferent to sexual assault.
The idiotic Title IX rules and hysteria over sexual assault on campus grew out of a dysfunctional, politicized and dishonest campus culture. The new DeVos rules are welcome, but rot is deeper than that.
14
Why do schools not call the police in cases of alleged rape? What makes them think they have the skill set to investigate a felony, hold a "trial," and impose sentence upon the "guilty" party? Is this not the role of law enforcement and legal system? This is 100% wrong, and all crimes must be reported to the PROPER AUTHORITIES to handle, not to school officials.
9
Reading the comments, I guess we now live in a world where many on the left equate "due process" with "permission to rape".
Can we please stop for a second and use our brains?
"Due process" is so very much a fundamental pillar of our country's society that it is a cornerstone of the Constitution. "Due process" does not provide an incentive for criminals to commit crimes. Removing "due process", however, sure does provide an incentive to falsely accuse another of a crime, whatever the accuser's motives may be.
13
I recommend the book “Missoula” by John Krakauer, on this topic. The burden of proof is different for universities, as assault is considered a violation of campus policies and the outcome is expulsion, not jail time. With many local prosecutors failing to charge potential rapists for a variety of reasons, the college review process may be the only due process that the victim gets. And, contrary to popular belief, false accusations, while scary and attention grabbing, are somewhat rare.
2
@SaK I think you are minimizing the number of cases where there is post event regret, or hazy circumstances, or alcohol, or near enthusiastic consent, etc. I suspect many cases are not a matter of a cut and dry all out clear cut rape, which explains why people don't want to go to the police or be cross examined. Many events are likely much more murky, and wouldn't even make it to court for a "rape" charge. One thing about the so-called "rape culture" SJWs is that their own lack of willingness to admit these nuances are the most threatening part of "rape culture".
I saw a study that showed that a large number of women have been raped (or assaulted or harassed or annoyed or... You have to love it when social scienists load a bunch of conditions in an "or" string like that), but only a small number of men have committed such acts. Now, either there a small number of very busy perpetrators....or....there is a LOT of grey area.
I am wildly sympathetic to those who have grievances, but I am almost similarly sympathetic to those who were in the grey zone and were unfairly punished. I believe a better system would be to encourage both parties to adopt better startegies to avoid such grey zone situations.
This whole subject is such a sticky wicket. Even though for all the right intentions, I really wonder if sexual conduct other than outright rape or physical assault can be codified in law. Assault is generally defined as "unwanted touching." That's a pretty broad definition.
It's like trying to reduce Brahms symphony to a mathematical equation. There are just so many subtleties: a furtive look, a misinterpretation, upbringing, power. revenge, race...all kinds of factors...
A saying keeps ringing in my ears when I read stuff like this. "A woman's smile is not necessarily and invitation to bed."
Though I unequivocally side with women (and men, too) that they are to be given respect simply as human beings, how the heck can some (not all, by any means) "sexual assault" problems be fairly adjudicated by either a panel or in a court of law?
At what point to we ruin a man's life by publicly hauling him in front of the authorities? There's a huge difference between Donald Trump's known behavior with Miss America contestants and some black college footballer who loses his chance at the big time because of some really stupid behavior at a college party.
Maybe what is needed is for everyone to take a course in human relations. Especially college kids. Hell, especially Donald Trump!
No regulation or law will ever put a stop to what's been going on for millennia. There has to be a better way to give women their due while teaching men how to behave like gentlemen.
3
Several points:
(1) If you want justice, you have to let the accused defend themselves. You may ultimately conclude that the accused is lying in a given case, but you at least have to hear their side of the story and let them question the accuser's story and present evidence. It's really as simply as that. No one is saying, "Believe the accused!"
(2) If you let the accused defend themselves, their side of the story may be very unflattering to the accuser. That's just the way it is. If an accusation is false, why is the accuser making it? The answer to that question is likely to put the accuser in a very bad light. But the answer to that problem is not to deny the accused due process. Defending yourself against accusations almost always entails attacking the credibility of the accuser. Moreover, the issue is almost always credibility: whom do you believe.
(3) Witnesses in mob trials are risking their lives, yet they still have to face the accused, and the accused still have the right to question them and wage a vigorous defense, including attacking the witnesses' credibility. Why would a young man (or young woman) accused of sexual assault not have the same rights as mob bosses? If those witnesses in mob trials can face the accused, accusers in sexual assault cases can do the same.
9
@Philip Even more so, both sides in many cases could be credible:
"She was grinding against me and laughing but pushed away from me when things got really heated until finally she decided to go for it."
"I really liked him and felt like he was pressuring me. I kept pushing him away when he got too close, but because he is bigger than me I got tired and worried he wouldn't like me so I finally stopped pushing him away and then the next thing I know we were having sex. My roommate walked in on us and I was so embarrassed."
Do you see why people don't want to be cross examined?
In cases where an accusser does not want to file a police report, there should be NO permanent action against the accused. In those cases, the accused should have to attend training, and, when the accused asks that the accuser also attend training, the accuser should have to attend as well (separate sessions if desired). Such training should be done by members of the opposite sex (in the case of heterosexual relationships) and should consist of case studies of how people can interpret actions differently from different perspectives.
If you really want to end the so-called "rape crisis", that's the way to do it. I suspect that in a certain amount of cases it's not rape, and hence the crisis is overstated. It's a combination of factors that cause bad outcomes, but it isn't a criminal act.
If we teach people to have better relationships, it will lead to much more happiness.
1
I understand and agree with most of the sentiments that the university should not be adjudicating what are viewed elsewhere as crimes.
But the university does and should play some in loco parentis role for both the accused and the accuser. 18 year olds far from home and/or with no or few funds of their own, emotionally and physically traumatized by assault or false accusation, may have no idea of who to turn to or how to proceed.
Universities spend great amounts on amenities such as climbing walls. They should be able to hire counselors and social workers to support the accused and accusers in the process until the young people can marshal other resources. Universities must help the accused find legal counsel and attend initial indictments if any, and emotionally and physically support the accusers as they make their allegations to the police or go to the hospital.
Although universities make a show of treating their students as full adults — not sending grades and transcripts to parents, for example —we know the sometimes 17 year old students and older are not full fledged adults. In fact, their very youth and lack of experience often leads to these sexual experiences gone awry that older participants would realize might be avoided. Universities must be ready to support their students even under the most dire circumstances.
2
Universities cannot act in loco parent is when the individuals involved are adults.
The fact that 18 year olds, by and large, are not mature or worthy of the label “adult,” notwithstanding. They are responsible for their own actions and must face consequences, whether the act is assaulting someone or accusing someone of assault.
7
colleges and universities can demand that students demonstrate proficiency in physics and calculus, one or more foreign languages,and all kinds of other high cognition skills, but can't expect them to have the brains to call the police if they have been assaulted?
college age people also go into the military service, where they're expected to face real dangers and take life and death decisions.
but colleges have bought into the myth of the sophomore: the wise moron. they reveal that they consider undergraduate education no more
if you can solve for three unknowns, you can learn to put on your pants one leg at a time and take care of yourself in the most rudimentary ways, or you should not be in college, or possibly even out in the big, wide, world.
3
Endorsing these changes simply on the basis of their implied benefit to a specific racial demographic is racist on its face. Falsely accusing someone of a violent crime is no less an injustice to an Asian, a white person, or anyone else, for that matter. But no, we have to politicize everything, apparently. If you want to play identity politics with justice, you would have garnered a broader audience by highlighting the immense injustice the current Obama-endorsed system does to males, specifically. Perpetrating injustice on an entire gender for the sins of a few is a heinous moral wrong. You should be ashamed of yourself for ignoring the real injustice the old Title IX policy inflicted on an entire class of human beings.
8
Why in the world should this only be a concern about fairness for black male students? How about getting over your race obsession and focus on fairness for all.
9
@Underclaw, her job is director of criminal juvenile justice and racial justice legal clinic? So perhaps this is the lens and prism she sees it through and the examples of abuse she has seen the most of?
Certainly totally agree that the Democratic Party should follow the advice of Democrat Mark Lilla (or sadly deceased Democrat Arthur Schlesinger, Jr) and abandon the insane extremist identity politics that have come to define the party and many in the media today who seem to support Democrats (but may have, if anything, unwittingly contributed to Trump's elections). But maybe we should cut Ms. Bazelon some slack here. As director of racial justice clinic, she may be like a carpenter the carpenter with a hammer who views every problem as a nail?
3
@GRH, good points totally agree. My critique was as much about NYT publishing decisions as the specific article. All race all the time is not just bad for the country (and agree: for Democrats) it's become eye-rollingly boring.
8
First, it is possible that black men do commit sexual crimes in excess of whites and Asians. What are the general statistics on this from the larger population? The overall black population does commit more violent crime in general as a percentage of their population than do whites and Asians.
Secondly, I see the writer took pains to only include reference to protected class populations. Would she care at all if white males were falsely accused? I have my doubts.
12
What I find rather despicable about this article is the suggestion that only wrongly accused black men suffer as a result of these idiotic policies. Why make such an unfair distinction? Any man or boy who has there college career ruined by lies deserves sympathy and justice, regardless of ethnicity.
13
why are colleges even involved in adjudicating these matters? hand off all incidents to the local justice system and law enforcement. students' not-in-school working peers are subject to local LE, so should be the students
1
Your conclusions are so right; but for the wrong reasons. You approach the subject entirely from your own "specialism". The real problem is the lack of due process, which you do note, but you do not go far enough. Universities and other institutions, public and private, are not appropriate for any "adjudication" of our legal rights. That is the purpose of courts and our legal system. When these crimes are alleged, the victims must be urged to contact the police. They should also be told that the institution has a public and legal responsibility to report crimes reported to them, and that they will report, whether or not the victim does so. Then, the institution has fulfilled its entire obligation in the matter. Justice is for our justice system, imperfect as it may be.
3
The writer is citing a rare incident in order to modify this regulation. Why doesn't it strike her that in order to provide for this rare occurrence she is putting hundreds and thousands or sexual assault victims in danger. Any relaxation of a law or regulation provides impunity to the perpetrator.
1
Racism against respondents is a real and a deep concern, but high levels of false reporting by accusers is not. Conflating the two, as this editorial does, is not useful nor feminist. The DeVos revisions are not concerned about racism, they are intended to make it harder to report and/or pursue real sexual misconduct allegations on (and off) campus. That too, is not feminist.
4
Title IX is becoming a federal legal jobs program. Gotta keep those Tier 3 and 4 laws schools in business, the interest on the student loans pays the bills..
5
"It is better that ten guilty persons escape than that one innocent suffer." -- William Blackstone
This used to be a bedrock principle of American society: the presumption of innocence. For hundreds of years, it was a cornerstone of liberal democracy. But no longer.
We now seem to have reversed this principle completely. It is considered far better for many innocent men to suffer than for one guilty man to go free. And, as this article confirms, of the many innocent men who will be made to suffer, brown and black men will be made to suffer the most. Because #MeToo.
It's all part of the unraveling of society that is occurring these days in the name of political correctness.
10
Indeed a tricky situation -- when two (or more) victim-groups are in conflict.
Compound it with the ever-expanding definition of 'rape' (as well as the ever-expanding definition of 'racist').
6
I'm taken aback by the idea that anyone could be judged guilty of a crime by a preponderance of evidence standard. That's what they use in civil lawsuits where money is the only penalty. It's bizarre that one person's judgment that an accuser is more credible than the accused could be enough to create any sort of legal judgment.
A real system to address campus assault is badly needed. However, these quasi-legal ways to handle campus assault claims play into the narrative that there is an unreasoning animosity toward men in general, and black men in particular. The system to address the complaints has to become more robust than the complaints themselves.
5
I work at a university police station as an administrative support person. We are required by Title IX to investigate all complaints of sexual assault. This involves having a trained sexual assault investigator speak with both the accuser and accused, as well as anyone who may have knowledge of the incident (other people at the party, friends who may have been confided in at the time), viewing campus video surveillance, and considering any other factual evidence available (sometimes phone records, texts). If the alleged victim is the one making the complaint, and is able to go to the hospital in time, they will be examined by a nurse specially trained in sexual assault cases, and forensic evidence will be preserved. Most often the accuser does not want to press criminal charges, and the investigation ends up in the hands of student conduct review board, who determines if disciplinary action by the university is warranted. The cases that cross my desk seem to run the gamut from misunderstandings to very serious cases of forcible rape. Alcohol is almost always a factor. Sexual assault cases are notoriously difficult to prove, and if these college cases were referred to our municipal law enforcement, they would receive no attention by investigators. Ms. Bazelon offers no evidence of her client's innocence beyond his own testimony. It's unclear how having him question the accuser would improve the process.
8
Universities can not control criminal prosecutions. They can't require victims to report to the police and press charges. They can't require prosecutors and grand juries to indite. And this goes for any crime; assault & battery, robbery, rape, and murder.
What they can (& must) do is determine whether a student needs to be kicked out for violating rules. They have lots of rules, and reports of rule violations have to be adjudicated.
So, the question is: should a college come up with its own procedure? Or should a procedure be mandated?
One option is to require a trial that comports with the criminal judicial system. That might sound great, but the system has inescapable flaws:
It's expensive to operate and hire investigators, a judge, and lawyers.
It takes a long time.
Defendants with means to hire better legal assistance get better results under the same circumstances.
There's an appeals process.
Factually innocent people are sometimes convicted even in the courts.
Racial bias is inescapable.
Also, in the criminal context the accused may be jailed pending the case, or barred from coming near the victim. What is the college supposed to do? The accused either continues his education or does NOT continue his education, which is a circumstance that can't be undone.
Accordingly, what colleges do, is do this as quickly as they can, and try to get things right, while recognizing they won't always.
Getting kicked out of school is severe, but it isn't prison.
6
Very interesting read. I think to completely agree with this argument, you have to accept that false accusations are common - but statistics show that they are quite uncommon.
One thing I think many can agree on, though, is that the procedural remedies for these claims can and should be improved.
3
Well done. Nice essay.
You can call yourself a feminist all you want, but when your conclusions are blatantly misogynist in the service of faux concern for men of color, I'm not impressed.
9
51% seems like a very low burden of proof, as that 1% can ruin someone's life if the charge is indeed unjustified
I also am a feminist and liberal, but I'm incensed that some have chosen to equate drunken sex and regret with rape. How many women (and men) have had sex while intoxicated only to regret it the next day? Why should the man be blamed if both parties were under the influence? Now a man plying a woman with booze or sedative drugs while himself remaining sober is one thing, but two people party a little too hard and have sex, and this is a crime on the man's part? Should men be forced to carry breathalyzers, and only be allowed to have intercourse with women whose blood alcohol level is equal to or lower than their own?
What about men who try to convince a woman to have sex, are persistent and ultimately are successful, but then the woman regrets it? Are they rapists also? (answer: No. You could have not agreed to it). Isn't this what happened to Aziz Ansari (except they didn't even ultimately have intercourse; according to the accuser he tried to pressure her to sleep with him, and when she declined, they watched a movie together on his couch). He may be an entitled jerk for all I know, but that is not a crime.
I'm afraid the pendulum has swung too far with some of the #metoo movement, which will ultimately hurt victims of actual rape.
10
The male is responsible because nature has made penetration an act of violence toward women and the alternative is a form of victim abuse.
2
I am a faculty who has been involved in several Title IX complaints on behalf of students - on both sides. I completely agree with this piece. We need a more balanced approach.
7
A woman is (supposedly) raped, and she willingly returns three days later for consensual sex? Who returns to a rapist to have sex again? This is ridiculous.
14
Wow. Victim blaming of the worst sort. Women have a right to full control of their lives. If at any time before, during or after such and act, a women comes to believe that they were taken advantage of, society has an obligation to give them recourse and to further inflict equal or greater penalties upon the violator.
2
As criminal defense lawyer I totally agree that the current rules deny the accused due process and need significant changes. But if you think for one second that Betsy DeVos had black males in mind when she proposed the rule change you are deluded. This was to protect the privileged white boys who usually get away with it. This was to intimidate legitimate victims and make sure the Kavanagh types always get away with it.
14
@hazel18 - better that 100 guilty "get away with it" than a single innnocent be convicted.
2
Thank you for articulating the obvious -DeVos had only privileged white boys in mind. I might have taken this opinion piece more seriously had the author bothered to acknowledge this fact.
1
Yes, in criminal court. Not in schools/colleges, workplaces, housing or public spaces.
It's really incredible to me how much animosity progressives have towards white males. Even in a situation as manifestly unfair to all men as the current preponderance of the evidence standard, they are only moved to empathy by the fact that black men might get caught on the wrong side of it. The fact that innocent white men also get caught up in these Star Chambers is apparently of no concern.
15
The story doesn't add up. If he raped her on the first encounter, why would she go back for a second? Also the jilted boyfriend would be much more likely to lie in favor of the girl ("she was raped...") to protect his ego or reputation. He would be less likely to lie and say that she had sex with his rival voluntarily. In this case, he was apparently honest, and had no motive to lie.
I smell a rat.
That said, anything that improves the process to reach a more accurate conclusion is an improvement. Having representatives from both sides involved seems self evident.
7
I have a great idea. No sex can occur between parties without video recorded affirmative consent that occurs twice with a 24-hour cooling off period in between.
I am very serious. There is too much thoughtless sex, too much casual sex, too much coerced sex. Too much to regret. Too many diseases spread and unwanted pregnancies.
Here is the solution. Both people who are considering having sex are required to take out their smartphones and video tape an initial conversation where they each ask each other the following questions (at a minimum). And anyone found lying in answering any of these questions can be prosecuted for a felony.
1) What sexuality transmitted diseases do you have? When were you last tested?
2) What is your criminal record?
3) How many children do you have now?
4) What is your relationship status, right now?
5) What are your current intentions for this potential relationship, hook up, or whatever this is?
6) What birth control will we be using for this encounter?
Then the two potential sexual partners must wait at least 24 hours. After which time they can come back together and make a second recording where they each affirm their intention to participate in consensual sex.
Any violation of these rules will be considered a felony. There is no "she agreed to it while she was drunk and I was pressuring her so it is consensual." Date rape as we know it would disappear overnight.
6
Race has almost nothing to do with this serious and intractable issue. The author is mostly using it as a bludgeon to ingenuously lend weight to their point. For shame.
9
@Bruce The racial disparity in application of the existing very bad rules is a side effect and distraction from what should be the central point.
The rules now semi-codified by "dear colleague" letters were written by mid-level bureaucrats. They were then "staffed" through the agency and possibly tweaked based on feedback from reviewrs. Finally they were signed off by a political appointee who, in all likelihood, had not read them in detail and considered with appropriate care and consideration what the implications were.
Now, after some years, some of the inherent problems have become obvious, and new rules proposed. Some, maybe many, disapprove of the messenger and would discard the changes based on that and superficial reports on their content. They should, instead, undertake the requisite study of the problem both sets for rules propose to address, evaluate the proposal on the table, and submit comments during the comment period.
1
I am a feminist. But anyone accused of rape deserves due process.
7
In a criminal courtroom. Not in a college or at work or where they live or where they congregate.
3
The vast majority of perpetrators are never punished by our criminal justice system (https://www.rainn.org/statistics/criminal-justice-system). Moreover, depending on where the survivor is in the country, they may be reporting their assault to police who are not trauma-informed and could re-victimize them. Thus, universities create their own adjudication systems because many survivors do not trust the judicial system (for good reason) and because universities can create an adjudication system with better support for survivors and alleged perpetrators (psychologists, trauma-informed care, etc). Given the statistics on how the judicial system treats rape, it makes complete sense for universities to have their own ways of handling assault, while encouraging survivors to also report to the police. Finally, I don't know how many black men are falsely accused but around 1 in 6 women are raped in their lifetime and that is more than enough to warrant these systems existing in universities. Racism is a huge problem in our country, but so is rape. We should fight them both and encourage universities to play a role.
4
Reading these comments from men one thing is clear to me. Women should be very careful allowing men into their lives. And they must be especially careful when allowing men to be near them when they are vulnerable, such as when they are drinking or when they are alone with the man.
Sex is the #1 way for a woman's life to be ruined: unwanted pregnancy, abusive boyfriend, sexual assault. I am no conservative. And I am not some Christian peddler of abstinence before marriage. But over the years I have seen more women lose control over their own lives due to the men that they allow into their lives than from any other cause.
13
And I would say the same for men.
5
Similarly, reading your comment one thing is clear to me. Men should be very careful allowing women into their lives. And they must be especially careful when allowing women to be near them when they are vulnerable, such as when they are drinking or when they are alone with the woman.
It's the Mike Pence rule, and it works.
10
As a Christian peddler of abstinence before marriage, I agree with everything David has written here.
3
All good points. You are correct about the racial dynamics here. However, the appeal to race should never have been necessary, and are not necessary to know these policies were spectacular failures. Their shortcomings were transparent before they were even implemented and represent a betrayal by the left.......and only by the left. Eat crow. It's good for you.
3
As well intended as the author is the problem is not that black men are being singled out under Obama's Title IX system. The author is a liberal as are most of the readers of NYT and by my observation most of the people involved in administering and judging the Obama Title IX rules in schools. By my observation those people of a liberal mind set bend over backwards to give black men the benefit of the doubt and I have no doubt at all they would do so in these cases also. The problem is not that black men are being singled out it's that men, the entire gender, have been stripped of any due process rights that our system holds as an ideal. The Obama new rules threw that out the window. That the author can't focus on the real problem is a symptom of the extent of her liberal bias. Basic due process should apply regardless of gender or race or religion.
3
The schools should defer to the law, where serious matters are handled by professionals who don't brook false accusations or false claims of harm.
Or if it must stay inside the school, you might as well invent a judicial system just for colleges using a control group ie a wide variety of alleged perps and alleged aggrieved, along with the actual pair, mix them all up behind glass windows, and then let some administrators make judgements like they are being tested by an ad agency about the quality of a detergent. Then hand the results to some statistician who can calculate an error probability. At least that would speak honestly to the absurdity.
3
This is so hard. How many times have women been accused of making false accusations. Knowing, from personal experience, what sexual assault feels like, I really don't know the right thing to do here. Women need to feel safe enough to report sexual assaults. The idea that some women lie about being sexually assaulted makes my blood boil. This hurts real victims. I also cannot understand how hard it is for wrongly accused to clear their names and get their lives back. What a terrible thing to be accused of. Often it is a he said, she said situation. How can others us really know what happened. Would mandatory lie detectors work here.
63
@Linda
It's not that hard. At least let the accused defend themselves. Not every accusation is true.
18
@Linda Lie detectors (polygraph tests) are so notoriously unreliable that in many States they are not even admissible in Court.
13
@Linda Lie detectors aren't reliable. They only measure stress responses. Our legal system is based on the fact that it's extremely immoral for the state to incarcerate an innocent person, so due process protections exist. The key is encouraging more honest, respectful behavior, so some of us are working on that end of the problem.
13
Fine. But what if it's just some white guy?
6
As the Brits say, this issue is a real sticky wicket. There are no perfect answers, only not-great ideas, and then worse ideas.
The issue of punishing some, few men unjustly is terribly unfair. The issue of allowing many, many young women to be sexually assaulted (almost institutionally so) with no realistic recourse because it almost always boils down to he said, she said- and, that that itself is something such aggressors count upon, is also terribly unfair.
There is a call here to always proceed to criminal proceedings, and that is where a tremendous number of such sexual assaults will just be left as a scar on the young woman, and usually little consequence to the young man, because given the harshness of that environment, most of the women will never report such an assault, and even those who do will rarely receive justice. Criminal charges are unrealistic in 80 - 90% of these cases. Now, some sort of "civil action" is another matter, and that is what these campuses are trying to implement.
There is no good answer here. But there _are_ worse answers, and the suggestions perpetrating injustice on so many young women because of some injustice on a much smaller set of young men is somewhat dubious in regards to civil type actions (different matter for criminal proceedings, absolutely.)
47
@Bruce
I respectfully disagree with just one line of this excellent comment. There ARE good answers. It's just that we don't implement them.
Clearly what's needed here is positive consent. It's not compulsory, but if you (as a man) get positive consent, then a woman cannot claim she didn't consent. Likewise, as a woman, if you refuse to give consent, that is a very clear indication that anything that ensues was not consensual.
Most teenagers today could design a phone-app that would make this work, in a way that would be perfectly confidential and only visible in case of formal complaints. It could even be voice activated, or as simple as a way to record the voice of the woman giving consent - already that would solve 80% of the problems.
The most important benefit: it would avoid so many of what seem to be genuine misunderstandings where a man (claims he) genuinely thought he had consent, and the woman clearly did not intend him to think this.
6
@Denis The problem is that people are change their minds and withdraw consent. So you're back to he said, she said.
9
@BellaMia Two responses to this:
1. perfect is the enemy of good. This mightn't be the perfect solution, but it would be a lot better.
And also, the main thing about positive consent is that it avoids ambiguity. Sure, there may be women and men who just plain lie about this, but I believe they are in a very tiny minority. Many of these cases are about shades of grey, where the man assumes that the woman has consented (e.g. from her body language, from a passionate kiss, ...) but never explicitly asks, while the woman does not believe she has given any signal of consent and so sees no need to explicitly say that she does not want more - and then you have an awkward situation which (while still absolutely no excuse for rape!) would be much better avoided.
2. as I mentioned in my own original comment on this article, an app would also enable a woman to withdraw consent at any time.
As with so many problems in society today, if people can just agree on what is needed, the engineers and scientists can almost certainly make it work.
4
It continues to baffle me that universities continue to "handle" charges of sexual assault. Why don't Universities also "handle" thoracic surgery? Good morning, sir, I'm Ted, and I'm on the Student Advisory Board and I'll be operating on you today.I don't really have any medical background but the hospitals are overcrowded.
7
Yes! I am nearly eighty, and have for years been mystified as to why anyone who has been assaulted would not immediately go to police! Why should a school deal with a crime? Or a corporation? If your boss assaults you, scream if there is anyone to hear you, and call the cops! OK, tell me why I just dont get it.
3
Your boss example is an offensive demeaning of what women face at the hands of men every minute of every day. Depending on the man receiving it, the boss’ actions might well be justified. If a guy doesn’t like it he shouldn’t have offended his boss.
The title of this piece should be "I am a lawyer for men accused of sexual assault and I support Betsy DeVos's Title IX Reforms." As a "Democrat," she should at least be suspicious that a policy, although creating reform she might believe in, comes from an administration which clearly does not share her goals of helping people of color. I would also add that you would have to be insane to think that a scale-back on protections for accusers will also not disproportionally effect students of color as well, although the difference would be that women of color accusers will face more hoops to jump through when accusing white males. Further, we should all be aware that, when scaling back protections for accusers, the history of interracial rape in this country is significantly slanted towards white men assaulting women of color. Scaling back the rights of accusers puts women of color in an extremely vulnerable place, as they have been within our criminal justice system throughout history and now.
I am further suspicious of Bazelon's use of the label "Feminist" despite offering no definition of what feminism means to her, no examples of how she has exercised her feminism in the past.
Bazelon should not just adopt the labels of "democrat" or "feminist" without explaining why she defines herself as those things. The title of this piece is misleading. Bazelon is a lawyer who defends men accused of sexual assault. No big shocker here that she would support DeVos's regulations.
2
Thank you. Due process is the foundation of the concept of justice in this country. There is far too much instant condemnation by accusation in society today. We cannot yield to mob (social media) rule.
3
Happily surprised you got something right for a change in the editorial section, of course not the editors' opinion, but glad to see some reason without all the outrage coming from the left. It seems rare these days. Some centrists claim that both left and right have more in common than that which is unshared. I don't see that and rarely remember the times I have agreed with Democrats, who all seem to be open border socialists. THIS, WE agree on; but not your own party. Most people on the left seem to be in favor of ignoring due process in favor of the insane idea of "believe all women." It's a little strange that you would say this extrajudicial process is only disserving a minority population, when it clearly is an unjustice to men of all races, but eh, I'll take the rare partial agreement. Also, what is becoming clear is that when the left sees a discrepancy between categories of race, it immediately jumps to the conclusion of racism. She can't prove that most allegations against black men are false, and it's not incumbent upon the accused to prove innocence, but rather on the accuser to prove assault. But she basically makes the claim that they are false because the accused are black, which is silly. Colleges should stay out of criminal justice, as they do not perform justice but Kangaroo courts. But this woman claiming this is a race thing rather than a sex/gender thing seems silly. Men should be innocent until proven guilty in a criminal court. Or not accused.
90
@PJ ABC "Colleges should stay out of criminal justice, as they do not perform justice but Kangaroo courts."
College and university disciplinary programs are intended to be educational and/or restorative in nature and to emphasize student safety and crime prevention. Disciplinary proceedings at higher education institutions are not meant to be analogous to court proceedings, but may echo some structures and language borrowed from the criminal justice system in order to ensure that there is a fair and objective process to resolve complaints.
And what should a college do when an accuser does not wish to pursue criminal charges or report to the police, but is aware of the accusation? Should they just ignore the complaint because they should "stay out of criminal justice"? Colleges and universities have a responsibility to respond to student complaints in order to keep students safe. There are clearly opportunities to make these processes better and fairer for all parties involved, none of which require we take a one-sided perspective that favors either the accused or the accuser. This comment author's opinion is clearly bereft of any actual expertise in higher education law or student disciplinary processes. I'd also bet a shiny nickle that the comment author is a straight, white man, perpetually aggrieved by the prospect of social accountability. But then, I'd be making an assumption similar to: "... Democrats, who all seem to be open border socialists."
17
@PJ ABC: Just to pick a nit: When you say that "most people on the left seem to be in favor of ignoring due process" you're making the same sort of mistake for which you criticize Prof. Bazelon: you really can't prove the truth of your claim. Shouldn't leftists be innocent until proven guilty, even in the court of public opinion? Or when speaking publicly is it OK to just make stuff up?
28
@PJ ABC These are not criminal proceedings and there is no guilt beyond a reasonable doubt standard. If you don’t like the risk of losing something by a preponderance standard, you’ll have to abolish most of the legal proceedings in the country.
8
Is it any surprise that removal of due process would disproportionately affect minorities? Due process and the right confront one's accusers are bedrock principles of the American justice system for a reason; the whole point of those principles is to protect the weak from abuse of power by the strong. How then could anyone ever expect that the removal, or weakening, of due process would not disproportionately create injustices for minorities or other vulnerable groups?
Kudos to the author for her courage to break with progressive orthodoxy. Any moves made by conservatives that are even perceived to disenfranchise or otherwise disadvantage minorities get these editorial pages howling - and rightly so in many cases. However bad policies introduced by liberals often get a pass. I am glad that didn't happen on this critical issue.
5
Is there any other violent crime where the victim’s identification of her assailant is doubted?
Robbery? Burglary? Mugging? Assault?
Nobody asks if the victims of those crimes was really assaulted, really robbed, really mugged- they are simply asked to help identify the culprit.
Why is rape different?
1
I'm a liberal, harsh critic of DeVos, and it pains me to agree with her, but these new policies are and effort to bring some fairness into a process that is anything but, for many young men. Too many Latino and Black, male college students are accused of sex crimes, and declared guilty without the benefit of legal due process. These accusations should be adjudicated by the local police departments, but if the universities demand the right to do it, then the system needs the reforms proposed by the Department of Education. Is the new, proposed system perfect, of course not, but it's a big improvement over what we have now, where an accusation is treated as evidence of crime, and young lives are ruined as a result.
3
As my son is in the throws of a Title IX case, I've had a front row seat to not just to the processing of these cases at a Big 10 school (serious lack of due-process), but the arena in general, including advocacy groups representing both 'sides'. I can say with certainty - this is complicated, confusing and unfair for all involved.
Defining sexual assault needs to be the basis of how these case are approached. No means no, yet there are accusations based on 'regretful' sex. Feeling uncomfortable during consensual sex is not rape. Many accusations come after drunken episodes that would not likely happen if participants (often both) were straight. The universities would be wise to address this in a meaningful way - perhaps student led rather than the brochure or "online class" my son's student body must take.
But at the core - all sexual misconduct cases, and there are cases against women, must be determined by affording due process; a fair investigation that includes the opportunity to question the claimant as uncomfortable as that may be.
No will always mean no. But personal responsibility; both accuser and accused, as adults, must bring it to the party.
9
@Anonymous, some Title IX officers on campuses seem to enjoy going after the accused. My daughter at a private university in the South has been harangued by the officer to testify against a friend who was accused of sexual assault and is innocent. Once the officer saw her case was flawed, she actively recruited witnesses rather revisiting a harsh sanction. But there seems to be no recourse.
3
@Claire O.
I am not surprised. The longer I am (unfortunately) engaged in this community - the more I recognize that many schools don't care about either the accused or the claimant. They don't want to lose federal funding....and I can't blame them for that. The kangaroo court system in place though, is not the way forward.
@Anonymous I am so sorry you, your family and your son are going through this. It's a nightmare. If you haven't found it already, there is an organization called F.A.C.E. (Families Advocating for Campus Equality). Our own hell began over a year ago, three weeks into my son's freshman year, and finding this group has been a godsend.
Unfortunately, many on the left are willing to throw due process under the bus for a Nixonian law and order philosophy.
So it’s nice to see a few people sticking their heads up from time to time to remind us that liberal values, such as due process rights, aren’t just for people or groups we happen to like. It’s sad that reminding people of this simple fact puts a target on people’s back.
6
As a former professor familiar with the "adjudication" process inside universities, it is a mystery to me why we continue to allow these hyper-invested and biased institutions primacy in overseeing and adjudicating these accusations/crimes. Universities have a primary commitment to their reputation, not justice. These accusations should be handled (at the very least supervised) by outside authorities who have the skill, experience and resources to handle them properly. It is bizarrely comparable to what we have done with the Vatican and pedophilia/sexual violence and we all know how well that has worked out.
7
I have real concerns about the example Lara Bazelon offers in this column. She's stacked the deck in favor of her "defendant," only to bury an important part of the lead, which she reveals only parenthetically: "(His suspension was based on this allegation and a second allegation by another accuser, which was found to be unsubstantiated by the evidence; that accuser is appealing.)"
So here we have a young man accused by two women who won't back down from their rape charges. Sorry, but in my book, two makes a pattern.
On a more general level, I think there is a sexism that raises its ugly head when you get two different cultures together. It's conceivable a man from one socioeconomic group doesn't fully understand signals from a woman of another socioeconomic group. The reverse is true as well, obviously.
This cultural disconnect may be more important than race per se.
2
Congratulations, Lara Bazelon, on this timely and important column. Too often we as a society embrace a rush to judgment against people accused of horrible acts, especially in cases involving politically sympathetic accusers. This column wisely reminds us of the harm that can be suffered by the wrongly accused--a harm felt disproportionately by people of color--when we fail to provide adequate procedural safeguards.
4
I have yet to see any explanation of why our national government should be involved in this in the first place.
4
Well thought out article - thank you. It takes a special person to say DeVos has done something right. Once, Pense found an ear of corn too.
2
Lara Bazelon's opinion certainly deserves strong consideration. She has both experience and perspective. The unspoken elephant in the room is Betsy DeVoss. Is her opinion and effort to reform Title IX to be trusted? She comes from a fundamentalist Christian background that embraces the idea that males are given a special leadership role by God. To be blunt, I find it hard to believe that DeVoss has somehow come up with a fair and balanced effort to reform Title IX. Maybe she has. I sincerely hope Lara Bazelon is correct.
I don't want any innocent person found guilty without due process. But most people know that rape is rarely prosecuted and almost never results in conviction. I want a solution/process implemented that treats the victims of rape and sexual assault respectfully and allows them to have their day in court without being victimized all over again.
4
It depends on who you are whether the college investigates the rape or not. If you are a top student athlete, changes are it will be hushed up hoping no one finds out. It's about the money.
2
How the Obama administration thought they could deny students constitutional and Bill of Rights guarantees is kind of mind blowing. Add to that the shielding of students from law enforcement and public knowledge of the alleged event makes it too convenient for false allegations to be made. A few years back at the U of O three black students were expelled even though the DA's investigation found it could not justify filing any charges. The three were expelled even though there was an lengthly, and thorough newspaper reporting with statements from many witnesses. And as it turned out there would not have been any issues if the woman's father had not been reading her diary and called police. The three male students may not have been saints but they did not deserve ruined lives because of poor judgement on both sides. The event was covered by the Register Guard, and The Emerald, the U of O campus newspaper.
2
im a leftist (not a democrat, as they are mostly DINOs) and i think it is RIDICULOUS that colleges are the ones doing the investigations. its not their job. its the job of the police.
when a student is accused of sexual assault what should be done is place the accused student on academic leave and remove them from campus until the police finish the investigation and conclude that the student was innocent. if the student is found guilty, they should be expelled.
anything beyond that creates an unfair system where the burden of proof is on the accused and not the accuser. educators should stick to educating and police should stick to policing.
3
@Ashley Have you thought this through? You're saying that the accusation itself triggers the removal of the accused from campus and therefore attending classes pending some resolution. That in itself is a severe punishment that would devastate the accused disrupting their life. And what should be done to the accuser should the charges be found lacking in evidence? Perhaps they should be thrown out of school for at least an equal period?
3
There have been numerous cases where white men and black men have been falsely accused, ostracized, and suspended from school with no judicial process, only to be exonerated later. So why is the author only outraged that it has happens to black men (she also makes the point by a white woman), and seems to have no issue that it happens to white men? What a world we've come to, where even the more moderate of the left is only for judicial process, but mainly because it effects certain races only. One would suppose that if she had used the example of a white man being accused by a black woman (Duke anyone?), than the victimhood hierarchy of current PC liberalism would not be so concerned. I would hope that people would be concerned about the lack of judicial process without the racial component that she felt the need to purpose. So much for blind justice.
4
Allegations of rape should be handled by law enforcement professionals and district attorneys. What Ms. DeVos proposes is nothing more than the addition of an extra layer of toothless, amateur investigation.
I fail to see anywhere in this piece how Ms. Bazelon's feminist/Democrat bona fides have any bearing on Ms. Devos' proposal, and thus find it suspect... like the stranger asking for personal data who says, 'It's okay, you can trust me. I'm a christian!' Interesting, but indicative of nothing pertinent, and suspect for the assertion itself.
4
Thank you for this column, it is balanced and appropriate. For another example of a false accusation, its horrible consequences, and what appears to be a lesser standard of justice when the accused is Black, see this article:
https://www.nytimes.com/2018/05/07/nyregion/innocence-project-manhattan-rape.html
Very unfortunately, there are many other such examples.
When the rules for justice and adjudication are written, a balance must be found between the rights of the victims, and the rights of innocent people who may be falsely accused. There is likely no system that will ensure that all who are guilty are convicted, and that none who are innocent will be falsely found guilty. This is a reality we must accept and deal with.
In the case of the Obama/Duncan Department of Education policy, a suitable balance was not found. The Obama/Duncan policy was grossly unjust; such is the risk letting unfettered emotion define the administration of justice. Additionally, the rules were written and imposed in violation of standard procedures, which mandated a public comment period, which never took place.
Prior to entering politics, President Obama was a professor of Constitutional law at the University of Chicago. That the policy was imposed on his watch is surprising and perhaps telling.
Secretary DeVos has done a reasonable, indeed admirable, job of trying to remedy a major injustice.
4
And also! The American system of "justice" affords all defendants this : a presumption of innocence. What does this mean? That the defendant is innocent. The judge and the jury believe that because they are told so. Why do or why should we presume complainants are truthful? If the defendant is innocent, how could the defendant also be guilty. Clearly un American but some would adopt that standard. Only for purple accused of sexual misconduct. Nice thinking.
A pretty nice piece but who knows, it could have been written by a close relative of an extraordinary American federal judge in Washington DC.
Once DeVoss's reforms are approved, the oh so "leftist" universities could tackle against an even bigger problem, the modern debt bondage system of student loans.
2
I'm sure the left has a great answer for how to deal with this: Due process for those in protected categories, and the prior single adjudicator method for white men only.
2
Schools have NO business enforcing the law — any law. I support expelling a student for proven behavior that violates community standards, but sexual assault is a job for police and the courts. If we consider "panty raids" serious enough to expel a student (which I doubt, but I did say *if*), and the case is proven, expel the perpetrators. If the charge is a crime, on the other hand, call the police. Done.
5
I have a better system: Teach girls in middle school that if they do not report rape immediately to the police, it will never be taken seriously. Yes, this a hard truth, but there are clearly too many women out there who think nothing of destroying an innocent man's life, as your anecdote plainly shows. This solution is the lesser of the two evils.
5
Approximately 40% of Black women report coercive sexual contact by age eighteen. Address those racial disparities.
For every African-American woman who reports her rape, at least fifteen African-American women do not report theirs.
Address those racial disparities
https://endsexualviolencect.org/resources/get-the-facts/woc-stats/
While 80% of rapes are reported by white women, women of color are more likely to be assaulted than white women.
Black women students in various academic settings who reported experiencing rape: 16.5% in a high school sample and 36% in a college sample.
Address those racial disparities
http://endrapeoncampus.org/new-page-3/
Only the police should handle these cases.
4
I don't like Betsy DeVos but I do like this column. Among other things, a "single investigator" is nowhere close to a jury of your peers.
2
It's not that complicated:
If it's rape, it's a police matter. If it's not a police matter, it's not rape.
7
I just want to point out to everyone discussing the % of false rape accusations so we are clear. Those are accusations reported to the police. We just don't have the numbers on accusations bandied about schools, offices, among friend groups. HR, the University reporting system, your friends at brunch =/= the police, and that is exactly what we are discussing here.
As it stands on this issue I think Bazelon is wrong and schools should not be involved at all. But that is just my 2 cents. Involve the police when there is a rape, and quickly.
2
The idea that Title IX can handle actual rapists via a maximum punishment of expulsion from a university is ridiculous. Many of us attorneys who do civil rights work are, like Ms. Bazelon, deeply concerned about a lack of due process where allegations of campus sexual assault exist, however we also believe that the system permits sexual predators to go free and continue to rape. An adjudication under Title IX simply forces them outside campus walls.
It has already been shown that Title IX cases make prosecuting sexual predators in criminal court nearly impossible. Saifullah Khan was acquitted in 2018 of having raped a fellow female student in her Yale dorm room in 2015 after he became intoxicated. Campus police botched the case. By the time it came to criminal court it was in shambles.
Jon Andrews, 24, a board member for Families Advocating for Campus Equality, an advocacy group working to defend college students accused of sexual assault, was Kahn's primary legal advocate. Andrews, who is gay, revealed after Khan's acquittal that Kahn became violent when intoxicated and had sexually assaulted him as well.
Upon learning of this Yale responded: "The new allegations made by Jon Andrews, who is not affiliated with Yale, do not fall under the jurisdiction of the University-Wide Committee on Sexual Misconduct." The District of Columbia’s Metropolitan Police Department wanted nothing more to do with mess Yale kept making and elected not to proceed with charges against Kahn.
I agree, and I too am very "progressive". I have seen some of my patients be accused of crimes while at college that they never committed. This resulted in immediate suspension and eventual withdrawal. All were eventually exonerated, but at a huge legal and social cost; their records were not expunged because they were over 18 and the women were not held responsible by any law.
Fairness applies in both directions, to both sexes, and requires THOROUGH investigation and PROOF before charges are formally filed or action taken. ALL complaints should be taken seriously AND anyone having been found filing a false complaint should be legally held accountable. That should be the essence of our justice system.
Granted, assault is often not, no pun intended, a black and white thing - it is often he-said, she-said, without physical or substantive proof. That is a quandary and the reality, as much as we hatter admit it, is sometimes inconclusive and unjust, but we MUST try our best.
DeVos, I am pretty sure, could not have drafted this legislation. She is too stupid and detached from the reality of normal life.
2
This article comes to the right conclusion, but uses myopic reasoning.
Why is the only measure of a law's fairness its affect on black men? As it turns out, this change fixes an issue that affects ALL men. I know rich white men are Satan's spawn and a scourge on our country, but last I checked they have a right to due process as well.
2
Supporting the right wing Amway heiress on Title IX reforms is a short trip to a bad choice. Her reforms go part of the way, but serve a murkier objective. Rightist ideologues are the enemy of justice and the sooner we are rid of these wealthy saprophytes the better.
Classic FDR liberal and feminist here. Meaning, not subscribing to what Peterson has called "illiberalism" nor the male bashing so-called third wave feminism.
Hard to say, I agree with Ms. DeVoss and the author. I've read through all of the NYT Picks and their comments. I've also pondered that when I was in college, en loco parentis policies prevented many of these tragedies. Likewise, gender segregated dorms.
What I have yet to see, this piece or anywhere else over the last several years is any mention of campus police. Once thought of as Barnie Fife's, most are now as well trained as any other police force. And, I'll presume now with a fair share of female officers. (My sister was the first sworn officer in Sarasota County.)
It seems to me that campus police is where a complaint should start. No Title IX inquisitions unless the victim reports it there first. Campus police would have a much greater insight into the university and the students to move things along, and then could be the logical channel when/if the local police get involved. Be the advocate.
As to the numerous women writing, who have benefited from the current procedures and support them, I ask to project into the future when your son is hauled in, no representation, for what he reasonably presumed was consensual fun. And if the occasion was violent assault, penetration, the worst behaviors, these Star Chambers have no place.
Thanks to NYT for publishing. Glad to see the comments are in agreement.
The author is half right- the threat to black men of false accusation is as old as America and accounted for so many lynchings. But the Obama "rules" were openly hostile to young men of any race, as they were intended.
But our actual law is still (for now) based on due process and assumption of innocence, so colleges implementing Obama's rules were getting slaughtered in court and losing tons of $, rightfully so.
Picture the reverse: if a young man could accuse a young woman of "sexual misconduct" after a hookup he felt went wrong, where things didn't go his way and he way stung by it, and, with any process, she was expelled and her future was destroyed. I can't image many women would support such a set of "rules".
2
Wow, what a rarity: a column that actually discusses the pros and cons of a policy change.
Sadly, it has to be posed in terms of the interests of one victim type (a minority) in clash with the interests of another victim type (a woman), but it's still progress. After all, due process is supposed to be blind, even to victim dogma.
Next thing you know, we'll be talking about protecting all free speech, even for those whose opponents seek to smother their speech by characterizing it as hate speech.
I guess that's why we call it the Bill of Rights.
1
Ms. Bazelon is, of course, correct. These academic kangaroo courts are a travesty.
But what I find very sad is Ms. Bazelon's conclusion that she could only convince her liberal NY Times audience if she argued that the "right" people (certain races, ethnicities, gender identities) will benefit from her proposed policy. Very sad.
5
It's pretty sad that the only way the progressives can see a problem with railroading innocent men is if they happen to be black. (And yes, this does happen quite often.)
4
Racism and sexism are inherent in every aspect of our current world. But why on earth the victims of these injustices must compete for their rights is beyond me. The solution to the unfair treatment of black males in the current system is not to punish female victims! It is to add protections within it for black males. I understand how difficult that is. Seemingly impossible. But please don't call yourself a feminist when you suggest this type of thing.
1
The injustice is not only racial. Perhaps 95% of all sexual assault victims tell the truth, but that still leaves room for injustice under the "preponderance of evidence" standard. Nadine Strossen, past president of the ACLU, has brilliantly addressed this issue, and she comes out squarely on the side of Lara Baselon...and DeVos. Well, DeVos may be wrong 95% of the time (grizzly bears, anyone?), but on this issue she gets it right.
1
The writer claiming to be a "feminist" and a "democrat" does so without defining what they actually mean. This is a propagandist strategy.
Worse, she uses hypothetical situations to argue her predetermined point of view, which is another propagandist ploy.
The truth is (as with Trump) if someone promotes Devos on any matter, then the reader should
consider the source, then look at motives, intent, and unforeseen consequences.
1
Ms. Bazelon, you claim to be a feminist, and yet your article has nothing to do with the well being or harm this policy would present for women. Rather, your article focuses entirely on the well being of men. Should we not consider at all what impact these new policies would have on women? Is this not worth talking about, even among self-proclaimed feminists?
1
Logical flaws in Bazelon's argument:
1) The number of male and female sexual assault victims treated unjustly far exceeds the number of men of color falsely accused. If the goal is to protect people as a class, her choice to protect men of color as a class hardly makes "feminism" her priority.
2) Bazelon is applying the rule of "due process" to a context that has neither the training nor intent to prioritize that principle.
3) Schools have the discretion to remove any student for disciplinary reasons. You don't see op-eds on how many students are falsely accused of cheating on tests and expelled without "due process."
4) Men of color may be falsely accused, but men of color are also predators. Let's not forget the four African-American Vanderbilt football players who joined a white player in gang raping a female Vanderbilt student. If those elite athletes had not been entitled enough to film their assault, the unconscious victim would probably to this day not even be aware of her own victimization.
1
The thing is, these rule changes (they aren’t laws) aren’t meant to make things fair for minority men. They are meant to protect the Beer Kavanaughs.
2
The American criminal courts are all too often lousy forums for exacting justice because of the need for proof beyond reasonable doubt, because of corrupt and incompetent prosecutors, because of biased or indifferent juries.
Look at the acquittal of OJ Simpson for a heinous double crime that he had almost certainly committed. On the other side of the coin, look at the many young black men languishing in prison for crimes they did not commit. Many rapists get away with or crimes in part because there's such a backlog of rape kits to work through. In so many ways, the US criminal justice system stinks. It lets down victims and their families. It lets down the accused.
A third and not exclusive option to the university disciplinary tribunal or the local criminal court is for He-said-she-said allegations of sexual assault to be pursued as a tort of trespass to the person in the local civil court where the plaintiff only has to show a preponderance of evidence, can hire her own team of lawyers, can win substantial damages from her opponent. That's how the families of OJ Simpson exacted some measure of justice.
A fourth option, of course, is to exact private retribution as depicted by Hollywood. The fifth is to leave it up to divine justice.
In my extensive experience of legal systems around the globe over many decades, civil action in the courts and private retribution are the most effective course of action.
It's all very good, but if Betsy DeVos has any good ideas, can we throw her out of office first, and then debate those ideas. It's the person herself who is bad and should have no place in government.
The author seems to assume that her being a democrat and a feminist means she can't be wrong, wrong, wrong sometimes. Well, she can, and this is one of those times.
2
The system is broken for all accused. I appreciate that Ms. Bazelon is calling out the liberal hypocrisy here, but suspending or expelling a white, fourth-generation, full-pay male undergraduate on questionable grounds is also a travesty of justice.
2
Cute, my structural racial discrimination trumps your structural sexual discrimination. I'm certain we can dig up a far larger number of sexual assault cases of black women from a similar background who's reported sexual assault's were ignored by a college administration. A supposed serious individual attempting to make policy recommendations by arguing from anecdote makes themselves look particularly foolish.
2
Women have been ignored by the school
punished by peers, and encouraged to shut up and get over it for 50 years . For every case of a male unfairly accused , there are cases where a woman was drugged , raped , or abused. Fraternities have been taking advantage of young women for years and somehow it is the womans or in most cases the girls fault for even being there . In many cases of drug rape , it is the same perpatrator but colkeges still sweep it under the rug. While racial sensitiviy is important , that is only one portion of the issue. Woman again are being victimized twice, once when assaulted and once when they do not get a fair or sensitive hearing. Welcome back to the 1950's when boys were boys and girls kept their mouths shut. The only option for women is now the Police and that will leave the university out of the circle . Oh well
1
I would suggest you graduated before tuition costs/ student loans were only a fraction of what it is today, with very few DeVos led private schools ripping off low income students. The fact that you graduated from one of the most expensive private universities is reason enough to discredit your OPINION.
How about a contract? I know it sounds crazy but if we're going to go so deep into the legal weeds over a college sexual dalliance, why not just require a contract before having sex? A video, a piece of paper, an email, whatever. Then this multi-tiered advisor panel structure will actually have some real evidence. No contract, no whoopee; also, no contract, no legal defense. We've gone have half way to ridiculous, why not go "all the way"?
1
@Frederick: Except it’s not a “dalliance.” What’s being discussed here is the way sexual assault is treated on campuses. Dalliance refers to a casual romantic or sexual relationship. Sexual assault refers to a sexual act that was not consented to, whether that means physical force, the implication that something bad will happen to the woman if she doesn’t, or by attempting to have sex when she is too drunk to be of sound mind. To say the two are the same is like saying that going out to dinner with someone and having a pleasant conversation is the same thing as that person violently beating you. And no, there is nothing ridiculous about trying to address the very real problem of sexual assault and making the world feel safer for women.
@Nell: As the father of two fair daughters and the husband of a wonderful wife I would never make light of sexual assault. However, in this article the author conveys a story of consensual sex between two Tinder matches. I believe the modern term is called a 'hook up'. I use the antiquated term 'dalliance'. It was consensual sex, not assault, or so says the author. In this one case, if there had been some formal 'contract' the man, who was later falsely accused of rape would have some legal standing. If the woman was in fact raped, there would be no contract (obviously). The man would have no standing, and rightly be punished.
Define feminist. You’re a woman, but that doesn’t make you a feminist.
And, I am sorry, I know this will sound like "blaming the 'victim'", but people need to be responsible for their behavior, both the accused and the accuser.
Stay away from drunken frat parties, limit what you drink.
Be responsible. Would the accuser drive while drunk?
And I am also a liberal female democrat.
Thank you Lara.
4
What the world needs is a reliable lie detector. One that even works on the shame-free psychotic mind. It would make criminal prosecutions easy, and fair to both sides.
Test the prototypes on Trump.
Intersectionality at its finest.
1
Nice extended anecdote.
The facts tell a different story.
Women rarely make false claims of sexual assault.
The process is demeaning, potentially dangerous, often conducted by people who don't think its that big a deal.
Yes, men may be falsely accused, and yes, they must have a mechanism to aggressively contest such decisions, but to make the victims responsible for the fairness of the process and the well-being of the accused is bizarre.
Today we hear Wall Street firms have gone Mike Pence on their women, refusing to meet, socialize, stay on the same hotel floor with female employees.
The shock jock consensus is "What did feminists think was going to happen?"
I suppose its too much think maybe men would learn to control their behavior, and treat women women with a little respect and care. Like they do with their buds down in marketing.
Its a mistake to lay this only at the feet of women. We're still living with assertions of gay/lesbian recruiters, out to inflict their sexuality on the innocent. Its a fantasy, and its a sign of bigoted thinking and lazy, irresponsible excuse-making.
In our society Evangelicals, have raised sex above all other issues. Whether we're talking abortion or rape, its all about the perfidy of women, and its because God said so. Its important to place DeVos squarely within that bizarre tradition.
Cover your hair, temptress, don't go out, drive, work, or study unless your personal Pence is beside to pass judgment on your every breath.
Glad to see women standing up against unjust stereotypes of men of color. I look forward to the reciprocity of an organized, visible, vocal movement of a critical mass of black men calling out the normalization of the sexual predation of women of all colors in hip hop culture.
1
If college men are being denied due process, that should be fixed. It should not matter whether they are predominantly white or black, but Bazelon seems to think it does, because she writes so much about race in this column.
So i want to make sure I have things straight (assuming I can still use that term). Believe the woman - unless the accused is black?
1
It's a delicate balance. Pre 1980, it was de facto legal to discriminate, harass even assault women.
Then came the great advancement by feminists and others to stop this around that period.
Then, the perverters came in, the post feminists, ie the man is always guilty, women can wait 20 yrs. to say something, worse only complain when favorable treatments stops, worse accept donations from predators to liberal causes and protect them or worse start the allege sexual activity and never admit that a majority of women use their gender to get ahead.
Women must be treated as a special class. They must be given 50% of everything whether they want it or earned it because they are women.
This always happens in history, after a great advancement the perverters always come in.
1
The American criminal courts are all too often lousy forums for exacting justice because of the need for proof beyond reasonable doubt, because of corrupt and incompetent prosecutors, because of biased or indifferent juries.
Look at the acquittal of OJ Simpson for a heinous double crime that he had almost certainly committed. On the other side of the coin, look at the many young black men languishing in prison for crimes they did not commit. Many rapists get away with or crimes in part because there's such a backlog of rape lots to work through. In so many ways, the US criminal justice system stinks. It lets down victims and their families. It lets down the accused.
A third and not exclusive option to the university disciplinary tribunal or the local criminal court is for He-said-she-said allegations of sexual assault to be pursued as a tort of trespass to the person in the local civil court where the plaintiff only has to show a preponderance of evidence, can hire her own team of lawyers, can win substantial damages from her opponent. That's how the families of OJ Simpson exacted some measure of justice.
A fourth option, of course, is to exact private retribution as depicted by Hollywood. The fifth is to leave it up to divine justice.
In my extensive experience of legal systems around the globe over many decades, civil action in the courts and private retribution are the most effective courses of action.
1
‘The Office of Civil Rights does not collect data on race in Title IX cases...’. Why on earth not??
No one as completely unqualified as DeVoss should be mucking around with the safety of our kids, male or female. She knows less about modern American youth, public schools, campus safety and sexual assault than my dog. She doesn't know what she's doing and she likely has some financial agenda. To support this I offer her record at Hewlwtt Packard. Didn't know what she was doing, had financial agenda. Folded the company and made a fortune. College kids, you're on your own.
College students are not “kids.” They are legal adults responsible for their own actions.
The federal government shouldn’t be involved in education at all, regardless of the age of the students.
This is a brilliant way to argue against the Title IX kangaroo courts and their Orwellian encroachment on human dignity and freedom.
Because so many on today's left flock to identitarian arguments, set one identity group (young black males) against another (young white females) to show the absurd anti-logic of the Title IX abuse now taking place.
Liberals addicted to virtue-signaling start to tremble here, no longer sure which group should have the upper hand in the grievance hierarchy.
The result of their moral trepidation shall be a juster recognition of the inheritance of Anglo-American law that has slowly evolved over centuries to provide both avenues for both vigorous prosecution and protections for the rights of the accused.
Yes rape is a monumentally evil crime and it can be difficult (in certain situations) to dispositively prove.
But the alternative is a universe where an accusation alone can destroy a life, and this sort of "justice" can eventually be turned against any human being by setting a destabilizing precedent that elevates the emotions of a moral panic above the rigor of rationality.
If you think only men can be wrongly accused, you are wrong. If you think only one racial group or demographic will suffer, you are wrong.
The West cannot afford to go down this nightmarish neoMarxist path.
2
So apparently the problems with Title IX are only worth addressing because you perceive that they hurt black men. If it were white men who were overwhelmingly unjustly accused of misdeeds you'd presumably be alright with it.
What is great about pitting one disadvantaged group against another? Why can't men--even (gasp!) black men--be held accountable for their crimes?
1
The main perquisite that drives black male athletes is having access to dating white women. Before they leave home for college campuses, someone needs to sit them down to explain the dangers therein. Women with credible claims still need protection however.
2
Clearly such miscarriages of justice can only happen to men of color. White men are never, ever unjustly accused of sexual misconduct.
Years before I ever went to college I was a minor participant in a school investigation in Middle School. A girl had accused a friend of mine of forcing her to give oral sex, and said he only stopped when myself and another female friend entered the room. I knew nothing of this story and I was called into a private room where the counselor, several teachers, and the principal were. They said I had witnessed something terrible over the weekend and done the right thing and they wanted me to tell them what had happened. I just looked at them like "what?" They repeated more or less the same thing and again I told them I had no idea what in the world they were talking about. They then called the other person who again was equally as clueless. The whole thing was dropped and the girl ended up moving away. I always remember her as an odd one who would give little white lies (once she said in front of her mother that she had just been shopping with her mother - the mom was like "no you weren't you've been home all day"). At the time I just thought these little fibs were harmless but I always wondered what might have happened had her story not included myself and the other person.
Not saying this is par for the course, just that the whole secretive closed door investigation by teachers for something which is utterly abhorrent didn't seem right to me.
All I can thin it that being a Democrat and feminist means nothing if your views are not either. What’s the point of a label if you don’t like the label?
Um...if your ex-husband or son were accused of rape in an academic setting wouldn't you want them to have an adequate opportunity to defend themselves as well?
3
Simple question: if you’re male and accused of misconduct, do you want anyone with the words “Title IX” in her title anywhere near your case? Such participation has Red Queen written all over it: “Sentence first—verdict afterwards”, the verdict being a foreordained conclusion.
Consider the number of feminists who consider it outrageous to even suggest skepticism about a charge. We must “Believe All Women” they harumph, and all dissent is relegated to the realm of misogyny.
As a conservative, who has absolutely no use for either gender/social justice warriors or the “disparate impact” racialists – perhaps more Blacks are accused because more Blacks offend? – the question has always seemed one of: upon which side should we err? In a criminal case, that’s clear. Not only do ties go to the runner, ALL doubts are resolved in favor of of the accused, because government is involved and that awesome power must be constrained.
Colleges, even public colleges, don’t present the same threat of abuse.
The problem rests with the folks, steeped in victimology studies at college, who tend to adjudicate these cases. If the words “misogyny” or “intersectionality” are in your vocabulary, you should not be tasked with such adjudication. If you come into the hearing passionately believing that women are victims and a “rape culture” exists, you simply can’t be trusted to be fair.
When a person, be it male or female, takes pleasure in crippling a person stating, "You're the only one that is crippled," that is abuse and harassment.
First, no Democrat and/or Feminist would ever support Ms. DeVos in any endeavor.
We may be caring, compassionate, and willing to lend a hand...but we won't be fooled again.
Ms. DeVos is trumpian amoral. Nothing of value will come from working with this person.
Second, Feminist Democrats spend precise little time identifying themselves as some political sub-group. That is a republican thing, character assassination instead of debate.
Nice try, but I call foul.
So, according to Lara Bazelon we need to change Title IX because it will have the social good of helping minorities? Should we still change Title IX if the only good is to prevent innocent white men from being wrongly convicted? Why do liberal Democrats see EVERYTHING through the lens of race?
The Duke lacrosse case was wrong, not because it hurt white team members vs black team members but because a just society needs truth and honest process in our procedures. We should, as a society, strive to make sure our laws are just for everyone, regardless of race, and if a law or procedure is unjust, even for white men, we need to correct that ASAP.
Another point that no one talks about: What if the sexual assault was committed by someone with a mental illness or perhaps a traumatic brain injury? I am uneasy with the one-size-fits-all punishments advocated by some feminists.
What we have here is racism trumping sexism. I don't see Betsy DeVos fixing either.
1
Flaws in this argument:
1) The number of female (and male) sexual assault victims treated unjustly far exceeds the number of men of color falsely accused. If the goal is to protect people as a class, Bazelon's choice to err on the side of protecting men of color as a class hardly makes "feminism" her priority.
2) Bazelon is applying the rule of "due process" to a context that has neither the training nor intent to prioritize that principle for either party. The priority of universities is to protect the institution.
3) Schools do not have to meet the same standards as our criminal justice system. They have the discretion to remove any student for disciplinary reasons if they see probable cause. You don't see op-eds on how many students are falsely accused of cheating on tests and expelled without "due process."
4) Racist tropes may make it easier to falsely accuse men of color, but let's not forget that men of color can also be entitled predators. Bazelon cherry picks cases of falsely accused men of color. One could just as easily point to Cory Batey, Brandon Banks and Jaborian McKenzie, the three black Vanderbilt football players who joined a fellow white teammate, Brandon Vandenburg, in gang raping a female Vanderbilt student. If those elite athletes (white and black) had not believed themselves entitled enough to film their assault, the unconscious victim would probably to this day not even be aware of her own repeated, violent, vile victimization.
So if due process were only being denied to white males it would be okay?
2
Prosecute all sex offenders to the fullest extent of the law. Having said that, it is absurd that Bazelon needs to play the race card to defend the toppling of Title IX Jacobinism, as if white males were not also subject to well-documented abuse.
It sounds as if the "real lesson" is to fix Title IX. Betsy DeVos, as far as I am concerned, will not do anything in the pubic interest.
She has proven this over and over in her quest to undermine Public Education.
Why should she be trusted?
1
A part of the problem lies in the fact that the University is put into two opposing roles. As a counselor to the victim, her story must be believed in all fashions so as to help her get through the trauma she suffered. However, as a prosecutor of the offense, all the statements both the victim and the accused make must be treated as unproven until evidence is gathered and evaluated.
These opposing needs are why the investigation and punishment, if any, needs to be handled outside of the University system, This releases them to act to assist the victim without need for due process.
Although I agree rape cases should be handled by the police, the Brock Turner case and the thousands upon thousands of untested rape kits give lie to the idea that women who are raped will be treated fairly. Look at the stats on www.rainn.org and weep.
2
Many of the comments address the issue as though it were binary: a person is guilty or not guilty, or should we believe what "he said" or what "she said". After having heard and participated in adjudicating some of these cases, I've seen a continuum from an interaction that was uncomfortable to one of the parties to obvious violence or coercion. In between are cases in which the complainant herself (usually) is uncertain. Bad date? Pushy partner? Someone whose actions become more objectionable when he never calls again. Yes, having the possibility of questions back and forth helps, but finally there is no clean judicial way to deal with such cases.
2
Many of this author's concerns are already fulfilled under Title IX guidance from Obama's administration -- the problem is that universities are not actually enforcing and/or using the standards correctly. For example, under the 2011 and 2014 DOE guidance, there should already be different people put in place so the investigator and adjudicator are not the same person, thus stepping away form the "single model."
One prominent factor that DeVos's new guidance ignores is focusing on "extreme" forms of harassment and assault. Under Obama, the DOE acknowledged that any form of harassment and assault can interfere with a student's ability to learn and continue their education.
Back in the day when crime was better organized (as portrayed in Mario Puzo's "Godfather" series) the distinction between the offender and the offended was seldom a matter of confusion or disagreement.
Either the cops and/or the victim's family would nail the offender. Mistakes were made but the neighborhood would soon relax so we could believe we really were the culture in those Norman Rockwell paintings.
But as Yogi Berra might have said, nostalgia just ain't what it used to be. It probably never was. Yet I don't think we've gained anything by including everyone on the "usual suspects" or "probable victim" lists.
Cases of alleged sexual assault should be turned over to the city police. Universities should stay out of it, other than to facilitate.
The accused should be assumed innocent and allowed to continue their education unimpeded, until proven otherwise in a court of law.
In instances where the allegation is proven to be false, there should be legal consequences for the accuser.
7
Sexual assault is a police matter. No dean of students, academics or housing is capable or qualified to investigate or prosecute such cases. DeVos may have her many shortcomings on education, but she is correct on this one. Time to clean up this mess.
5
Rape and sexual assault are badly handled by cops, our legal system and everyone else. Look up RAINN stats on how few rapes/assaults are reported; how few rape kits tested; how few cases prosecuted; how few convictions. The stats are worse than for other types of crimes.
Then look at how few false accusations and how few falsely accused get convicted.
There's a reason why this process is so flawed. I doubt Betsy DeVos has a handle on it, and fixing just the part that is unfair to the accused isn't going to fix the larger problem:
taking it seriously.
3
@AmesNYC
It is not only Betsy DeVos who doesn't have a handle on it. No one has a handle on it.
Because all police have not handled it appropriately in the past, it is foolish to delegate investigation to an institution that may be liable under the same regulation. At the same time, this same institution stands "in loco parentis" to both accuser and accused. This kind of structural conflict of interest is beyond resolving without these changes offered by these proposed regulations.
The statistics cited in this argument are beyond troubling and this conflict between the argument that women overwhelmingly tell and truth, and the rate of accusation against African-American males needs to be addressed.
Police must step up and through training do their jobs and in good faith investigate. using best practices, all accusations of rape and sexual assault. It is the American public's role to see that abuses do not occur.
Students, men and women, have to come together and agree on issues of consent. Surely that is the role of an educational institution not investigation but discussion followed by consensus and consequences.
I am intrigued by the references to a 2 to 6 percent false accusation figure. How was it determined that a false claim was made? Short of an admission or the introduction of new witnesses with actual knowledge or indisputable evidence it would seem difficult to ascertain the truth or falsehood of an accusation. Such a statistic requires certainty that there was a falsehood.
This requires going well beyond he said, she said. You cannot intuit facts.
If anyone who reads this has a reference to any of the studies supporting the 2-6 percent figure, please reply to this comment.
My remarks have nothing to do with the merits of Ms. Bazelon's piece. I just wish to know the basis for the statistic some of the commenters here have referred to.
2
A sexual assault is a serious matter and should be dealt with in a court of law, not a court of academics.
3
Thank you Lara! As a former public defender, I have seen again and again the complexities in sexual assault cases. "Believe the women" is a facile slogan that ignores the complexity of sexuality and relationships. Outside of the jump-out-of-the-bushes rape scenario, there does need to be a fair process and, as much as I dislike most of DeVos' agenda, even a broken clock is right twice a day.
5
Let cops handle criminal complaints. Why are we putting it on educational institutions to investigate and litigate criminal behavior?
It's like having a problem with your car and taking it to a baker.
3
Rape is a crime and should be handled by criminal courts, and no one should be branded a rapist in any way without being convicted *beyond a reasonable doubt*.
Our society is based on the idea that it is better for many guilty people to walk free than for even one innocent person to be unjustly punished. That applies to college sexual assault, too.
I say this as a rape victim who attended the same college for a year as my assailant and had to run into him on campus. Yes, it was awful. Yes, it negatively impacted my education.
But it still isn't a reason to punish other young men without due process.
We need to be honest that false accusations exist, especially in the heated social atmosphere of a university. The reality is that a lot of campus "rape" claims are regrets. And women are not inherently innocent any more than men are inherently guilty. Just as there are men who are truly predators and pigs, there are women (and people in other disadvantaged categories) out there who play the victim either for attention, revenge, or to try to manipulate the system for gain. Pretending there is not flies in the face of reality and the experiences of those who have been victimized and extorted by this kind of "faux victim".
And when making and getting away with false claims is easy, it encourages it, and it creates a culture where many people are more likely - at least socially - to doubt and trivialize real claims. This does a grave disservice to real victims.
5
@A F So well said. I've seriously dated two women who were raped, I despise rapists and am appalled by their behavior. But that doesn't mean that "believe all women" is any way a responsible response.
"Men's lives are ruined because women lie" is the message laid out at the beginning of this article, and unfortunately clouds any of the positive and necessary points made throughout. I work at a large state university and it is my responsibility to listen to my students and take action when they confide in me. Sadly, the majority of students on my campus are unaware of Title IX and/or have no understanding of their rights. Worse, most of the young women across campus lay blame on themselves after experiencing sexual discrimination, harassment, or assault. Because they repeatedly hear that they lie. That they won't be believed. That what they experienced isn't really what they experienced. Yes, there are fundamental racial biases embedded into our institutional structures, and especially our judicial system, but these should not be addressed and rectified by maintaining the lie that women are liars.
4
This is a fantasy. The percentage of false accusations is very small compared to the actual sexual attacks that go unprosecuted. Women are doubted, slandered, ignored, and put on trial for their dress, their failure to tell anyone, their motives. The system favors men from start to finish. The last thing we need is another thumb on the scale in their favor.
3
@amaldur
Yes and you can tell that the system favors men from the fact that over 2 million of them are incarcerated, many of them minorities.
All assaults should be reported straight to the police by the administration. The University's need to get out of the criminal investigation business. This is crazy.
2
Betsy DeVos is the Secretary of Education, appointed by Donald Trump.
The woman has no college degree in education. So, Ms. Bazelon, do you support that, too?
DeVos heads the Education for our whole country - but she has no formal education, no degree, no experience in education.
This qualifies her?
Where else would this be acceptable except the administration of Donald Trump and his list of wealthy pals?
My grandchildren are being educated under this woman’s jurisdiction. Their being in school has nothing to do with sexuality or untoward sexual behavior. And I get it that there are a lot of issues in that regard out there.
But how about getting somebody qualified to head Education that has some educational credentials?
Taxpayers are footing the bill for decimation of public schools, and replacing public education with religion under DeVos. That is what she’s about. This other stuff is a by product.
Get someone who has a clue about education, who has studied it, who has worked it. It is NOT Betsy DeVos! Shame on this country for even taking her seriously - about anything! We have schools of education, colleges, universities. People get Bachelor degrees in education, Masters, Doctorates - but not DeVos - and that’s acceptable?
Shame, shame, shame.
2
Ok, but the motivation of DeVos, and I assume Ms. Bazelon are very different - nothing in this about that. DeVos a evangelical or close to it bases her decision on original sin - all women are guilty and men are supreme. Perhaps the Catholic university USF embraces the same anti-woman ideology. Seems so.
2
Now that common sense and justice may be returning to the college campus, perhaps it's time to reform the "guilty till proven innocent" paradigm so fundamental to the MeToo cavalcade.
1
I was a Democrat and am now a socialist because of what people like the author of this article have done to the Democratic Party. It is fighting tooth and nail to not be a part of the people, and a slew of Democrats like Lara Bazelon have turned the DP into just another party of business and the elite, more and more like the Republican Party. It's a fool's game to think that either party represents the interest of working people, and the gutting of real education, one that makes people critical thinkers in a democracy, is just another tool in their toolbox. Let me hear you say Rahm Emanuel and President Obama.
1
I completely agree with this column. Universities are ill-equipped to sort out these difficult situations, and the pendulum is swinging far too widely as a result. There needs to be some guardrails in place, and our criminal justice system provides a basis for that, as it has evolved over hundreds of years and while not perfect, is pretty good.
3
A quick glance at the comments section shows that pretty much everybody here, no matter how learned or sophisticated, is driven by hate and prejudice, of whatever stripe. So why even pretend to be discussing this seriously? Universities are just about done, stick a fork in it. Better to move on to the next thing. People who hire will still need some standard assurances they are hiring someone educated and responsible, and a university education now confirms neither. But this is nothing new, it was a long time coming.
1
It's difficult for me to understand why anyone would be in favor of preferring a university to investigate claims of sexual assault instead of having the police do it. The police have training, resources, and enforcement powers that the university does not. Universities do not routinely investigate claims of auto theft, drug trafficking, or many other crimes. Why does anyone think it's desirable to have them investigate claims of sexual assault?
The only answer I can think of is that the "preponderance of evidence" standard allows for investigation and punishment of people whose actions are not provably in violation of legal standards for what constitutes sexual assault.
3
It's quite shocking that Lara has to use an argument for racial justice in order to get liberals to support due process. It's repugnant.
14
@Reasonable Guy "It's quite shocking that Lara has to use an argument for racial justice in order to get liberals to support due process."
It is the largely devolution and redefining of "liberal" where equality no longer means equal which has largely caused me to fully cease referring to myself as "liberal" or "progressive."
I'm not a big fan of the bully the bullies = ending bullying, intolerance of intolerance = tolerance, silencing the opposition = democracy, individuality = anti-social, and freedom = repression of anyone I don't agree with NewSpeak that passes for "liberal" and "enlightened" thought these days.
What a disaster in the making. Are there evidentiary rules such as not allowing hearsay? Who is the "adviser" for the parties? Is one a trained lawyer and the other a counselor at school making the playing field uneven? Who is the adjudicator and what is their training and how are they accountable?
The new rules require that the standard of proof be the same as a school's HR mandates for faculty and employees. Many schools have "clear and convincing" standards. This is a very high standard.
Kangaroo courts have never worked. Ever.
3
Latino men face the same type of hurdles in the current system. After all, a majority of white Americans votes for a President who called Mexicans rapists. So not much fairness can be expected in allegations against Latino men in overwhelmingky white colleges.
@Luis Rocha You are repeating a lie. The president did not say that.
@Tina Trent
Yes, yes he did, more than once:
“Women are raped at levels that have never been seen before,” Trump claimed of the caravan as he referenced his infamous 2015 remarks when he launched his presidential campaign that Mexico was deliberately sending murderers and rapists into the US. “Everybody said, oh, he was so tough. I used the word rape,” said Trump, as he reflected on his comments then."
https://www.theguardian.com/us-news/2018/apr/05/trump-mexico-caravan-voter-claims-speech-west-virginia
1
@Tina Trent
Yes, yes he did, more than once:
“Women are raped at levels that have never been seen before,” Trump claimed of the caravan as he referenced his infamous 2015 remarks when he launched his presidential campaign that Mexico was deliberately sending murderers and rapists into the US. “Everybody said, oh, he was so tough. I used the word rape,” said Trump, as he reflected on his comments then."
https://www.theguardian.com/us-news/2018/apr/05/trump-mexico-caravan-voter-claims-speech-west-virginia
https://www.youtube.com/watch?v=TML2cApMueU
I think we all understand, at least intellectually, the hell that a woman who has been raped lives in. Unfortunately, the rate of accusations toward men of color appears to be far to disproportionate to be realistic. There needs to be a proper means of adjudication other than a one man (usually) judge, jury, and prosecutor.
On the other hand, I have to ask why rape is being investigated by the institution at all rather than the police. While there has been a problem with rape kits disappearing, it is too much in the spotlight to continue. The accused still needs to report the crime immediately to the police and undergo the forensic examination necessary to provide evidence. Invasive as this procedure is, he said/she said has ruined the lives of innocent men far too often.
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@Rick Papin
White men get falsely accused too.
The Duke lacrosse team was mostly white and the “victim” was black.
11
@Rick Papin
How many do you personally know? How were their lives ruined?
I can, on the other hand, name among women I know: a woman abducted and raped at knife point, never caught. Rape kit never tested. A sister abused by an art teacher. A fellow student raped by a science teacher. A friend sexually assaulted by a doctor (this year). The rape and the sexual assault by the doctor were reported. The assaults against students weren't. Two of the science teacher's victims committed suicide (his daughters).
So yes, it's terrible when men's lives are ruined. Unfortunately, there are very few of them. Or I would certainly know some of their names — wouldn't i? Wouldn't you? Why do we only hear about them when some lawyer has a case they want to defend?
16
@Rick Papin : You fail to understand the problem. The criminal justice system has failed authentic rape victims as much as the University "justice" system has failed accused men, and the University is required by Title IX to maintain a hospitable educational environment for women (it, however, says nothing about men - even male sexual victims).
The problem is that the Obama administration forced a highly-unfair adjudication system onto America's campuses, using the lowest possible standard of guilt, lacking any due process for the accused, and creating kangaroo courts led by ideological advocates to impose "justice".
The DeVos proposals merely undo the damage to due process rights that Obama brought to campus without undermining the goals of Title IX.
11
In attempting to be "inclusive," being a proponent of biblical literacy--secular and religious-- I'm not sure the biblical verse Matthew 6:3 is working for some of us.
Harassment is harassment.
I’ve been wondering, is the school’s investigation happening at the same time as a police investigation? I would imagine that the accuser also files a police report, right?
2
The accuser doesn’t always file a police report. And even if a criminal court finds the accused innocent, this has no bearing on the school’s decision.
Why colleges and university even inject themselves into a felonious, violent crime of rape is beyond me. All these cases should be referred to the police and specifically a trained unit of the police like a special victims unit. It's truly bizarre that deans and student councils, with no experience or training, are allowed to sit as judge, jury, and life changing "executioner" in these serious and complex cases. No one is served by the present system. Schools often use sweep these crimes under the rug so that their statistics look better to prospective students and the parents. If they're not doing that then they are holding these kangaroo courts to give an appearance of justice. Rape is a serious violent crime and needs to be treated as such.
5
One of the entrenched issues is that colleges,vying for students, have a vested interest in burying the statistics and making the crime of rape go away...for obvious reasons.
How colleges handle this crime is not, but should be, secondary to how the criminal justice system handles it. Far too many students are trained to make their first and only call to campus security. For reasons that escape me, many students don't seem to realize that their campus is not a hermetically sealed bubble.
My daughter is a freshman in college. We told her that if, heaven forbid, anything should happen she should make three immediate calls, in this order: the police, us, and campus security.
This is part of the ongoing, underlying issue that schools at every level of education have been made to become responsible for everything...mental health, social well-being, and even safety.Educating is the least of it.
Tell me, what legal training does the Science professor or English adjunct have in the incredibly arcane field of sexual assault? It's both absurd and dangerous to expect justice from academics with zero training in dealing with crime, but who, for the roll of the committee dice, have to become "experts" in it. It's a burden on the college that should not be there.
Even the police punt on handling rape well, but they're far better trained than the professor preparing notes for his or her lecture on the Canterbury Tales when the call comes to sit in judgement on their students.
7
@AhBrightWings. Don't blame the police. Police kick rape reports upstairs: it's the lawyers who make the decisions, and they do so under a state of triage because we don't spend enough to prosecute any but a token number of the crimes people report.
@AhBrightWings Professors are not usually in charge of investigating assault. Universities have added a whole cadre of administrators to handle these cases, title IX coordinators and others.
1
This article points to the difficulty of writing laws based on identity politics rather than due process.
7
Good article and a reasonable opinion. The problem with these cases is that the accused is usually banned from campus while the adjudication proceeds. This is akin to emprisonment without bail. There is also the problem of defining sexual assault short of outright rape. And the liability of the colleges in such cases under Title 9 assures that they are not able to act without the appearance of self interest. I don't have enough experience in these matters to have any idea what solutions might work but hope those who do can find them.
3
The statistics from Colgate prove that there is something very wrong in the process! These protections must be available to accused!
1
@Gailmd What statistic? She used one school where half of the two or four reported rapes had blaxk offenders -- which is still underrepresenting black offenders if you consider real rape statistics.
I have been saying this all along, apparently no one remembers To Kill A Mockingbird. What happens when you make it easier to prosecute someone for an infraction? Every time, black and brown men are the ones who are found guilty. This is a long overdue time in our culture, but be very very very careful with it.
99
@Daniel : While it's true that blacks have suffered disproportionately in these campus kangaroo courts, it's also true that under the Obama rules college men are the new blacks - assumed guilty and deprived of due process.
2
@Daniel
...these kids aren't being prosecuted in court. This isn't a criminal proceeding. Why does no one understand this? Referencing To Kill a Mocking Bird has never really made any one sound smart or worldly or thoughtful as the speaker obviously desires, and this is especially so when you get basic facts about the situation wrong.
5
@C's Daughter
I understand perfectly well. I read your response as saying that you think over-expulsion from college for people of color is a perfectly fine outcome, please correct me if I am wrong. If I am wrong, then I think my comment still stands as I intended it.
8
The irony of this article is that the author is oblivious to the real problem. According to her identity politics, the problem is that one grievance group is getting mistreated. That kind of reasoning is the source of the original problem; due process was irrelevant as long as a grievance group could attack the "privileged" group. Only when the target is another grievance group does due process matter. This kind of reasoning is unethical, and it caused the very problem that she complains about.
10
Thanks for writing this. Ordinarily, I would automatically disregard any initiative that Betsy DeVos backs strictly out of principle.
1
The idea that colleges/universities have their own judicial system is a throwback to the medieval period. It is time to modernize that system. If rape is a crime, it should be dealt with like any other crime, namely, by the public legal system. Personally and professionally unqualified academic bureaucrats inspire no confidence that justice to the parties is possible.
4
It's possible to be a Democrat and a feminist, and also miss the point completely. You just proved it.
1
Why are the local police not called when a sexual assault charge is made at a University?
Why do these cases not go through the established judicial system like any others?
Why do we treat instances at universities differently?
5
@Melissa
I don’t know. Ask Obama. It’s his policy. But I guess that’s too much to ask.
Spot on.
I'm not sure how to handle sexual assault accusations. I'm not sure that anyone is. But I think I know how not to handle it, which is the way that it is being handled now. Swapping injustices is not a victory for anyone.
6
Finally...I am glad to hear this very important perspective on accusations of sexual assault. Due process has been thrown under the bus for so many men. Rape is a crime. Accusations of sexual assault must be explored thoroughly for all concerned.
2
I agree with this writer because, as Sartre said, there are no innocent victims. The consequence is not the result of some random cause but the result of consecutive decisions that sooner or later implicate everybody. Crazy as that sounds, that's what the University does. The Law may wear blinders, but the University is about full awareness, even when it is in conflict with the prevailing ideology of the times. Let the law do its job and let the University do its. Mixing them up is like watching TV and getting the news mixed up with the commercials.
41
@Max & Max There are no innocent victims? I am not familiar enough with Sartre to know what context surrounds that statement but I can tell you what it sounds like to me in THIS context. Women are always complicit and culpable in some way when they are assaulted. ARE YOU KIDDING ME? The problem with letting the "law do its job" is that a) it takes years and years and years and b) many sexual assault/rape cases are never prosecuted because a PROSECUTOR decides that there is not enough "evidence". Yes, some men are falsely accused. But the number that are falsely accused pales in comparison to the number of assaults & rapes that are NEVER reported or prosecuted.
23
@Darlene Moak
Sorry that the law takes years. That's the cost for living in a society of laws. There are quicker ways, of course, but that would only return the power to the bully, would it not? Would you sue a restaurant or a bar if a sexual assault happened there? Would you create a court of employees and entrust them with the task, for which they are not really trained in? Academia does not have the authority to deal with sexual assault cases because it does not have the practice, skill, or tradition to. In anything, they make matters worse by wanting to count every angel on the head of every pin before settling on anything. Investing in qualified due process is what we cannot do, in Academia. That's why it's assigned to the Criminal/Justice folks. If it's dangerous, stay away. If you're aware of risk, you're not an innocent victim. Existentialism 101
5
The accused needs fairness; no one is questioning that. The institution involved is the issue. It seems to me that in providing fairness to the accused an opportunity to coverup is being provided to the institutions. Institutional misconduct or coverups need to be severely punished.
1
Individual cases in which law or regulation produces a bad result can always be found. In this piece I see no data, no studies showing whether or not this one story is emblematic of a problem that extends beyond one man or not. I see nothing discussing the impact on women of the current rules, and no attempt to balance the needs of raped and assaulted women with the need to safeguard against women who lie.
I do see the author invoke the structural racism in our society, while remaining entirely silent about the structural sexism in our society. I have no particular answer to this, however I suspect that DeVos' rules will protect why more white, privileged scions of the upper classes than 'first in their family to go to college' black men
127
@Mark Stave : This article addresses only the racial disparity problem with Title IX tribunals. If you had paid any attention, however, you would know that this is a pandemic problem on America's campuses since the Obama rules were forced onto them under threat, and almost every case that has gone to court (hundreds) have been adjudicated for the falsely accused college men - black and white.
The Obama rules created a profound "structural sexism" on campus that has railroaded hundreds of innocent men by denying them any semblance of due process.
Nota bene: government studies have found that as many men on campus are victims of unwanted sexual encounters (almost always by women) as women, yet Title IX is silent on male victims and men's justice.
5
@Mark Stave - Extremely well said. Something about this article didn't feel right to me and you've nailed it exactly.
6
@Mark Stave
Just give me the identity attributes, kind audience, and I shall divine the guilt or innocence of both parties!!!
6
For those that propose that rapes be referred to local law enforcement rather than an extra-judicial process conducted by the college or university, it needs to be understood that the burden of proof in the criminal justice system is not the same as would be applied at the university. According RAINN (Rape, Abuse, Incest, National Network), out of 230 incidents of rape reported to police, only 46 lead to an arrest and 5 are convicted. While I agree the rights of the accused must be protected, educational institutions need to be able to have a recourse against forms of sexual assault that don't rise to the legal definition of rape and meet the burden of proof demanded by our criminal justice system - with the ability to suspend or expel students that exhibit behavior that may not be criminal but is not appropriate in a university setting. We see this happen with de-certification of fraternities when their behavior is unacceptable but not necessarily criminal. So long as the accused can defend him or herself and has the right to confront the accuser, I think a fair process is achievable. Asking the criminal justice to be the only way to sort this out is unrealistic.
46
@Mister Mxyzptlk So those who go to college live under a different standard of behavior than those who don't? The standard of behavior during our college years are different from the rest of our lives?
17
@Mister Mxyzptlk
Perhaps the legal definitions need to change, then, instead of adjudicating crimes in two places. Schools are not equipped to investigate, collect, store, and protect evidence from tampering or poor collection techniques, and their primary job is to educate. Leave investigatory work to the police, who are trained to process criminal activity and prepare a case for the court's eventual role in the process. It is also inappropriate for those accused to be held to account by institutions who do not specialize in processing crimes. Schools - particularly private colleges are not transparent to the public nor accountable to them.
In trying to fix one problem, a lack of arrests and convictions, more problems are opened up by your suggestion.
14
@Mister Mxyzptlk "While I agree the rights of the accused must be protected, educational institutions need to be able to have a recourse against forms of sexual assault that don't rise to the legal definition of rape and meet the burden of proof demanded by our criminal justice system - with the ability to suspend or expel students that exhibit behavior that may not be criminal but is not appropriate in a university setting."
Sexual assault is illegal! "Not appropriate" is NOT within the purview of the law. Illegal behavior must be investigated by law enforcement.
11
The issue of race has concerned me since I saw statistics on how much more likely the accused is to be black.
As a feminist, however, I am also concerned that young women are being encouraged to confuse regret with rape. My goal as a feminist is for women (and men) to own their sexuality and their decisions about sex. I have seen many descriptions of regretful sex in which the woman says she didn't feel she could say no or get up and leave—not because of any coercion, physical or otherwise, from the male partner, but simply because she felt it would be awkward or was unsure about how to set her own boundaries. And yet this was construed later as "rape." This is an insult to people (like a good friend of mine) who have been raped and who bravely pursued a case against the rapist (and in my friend's case, secured a conviction).
Women must be taught to set boundaries in full awareness of their own agency. You can't depend on men doing the right thing or reading your mind about how into it you are. Most of us have made poor choices about having sex with a person we found unworthy in mid-act or after the fact. But it's troubling for all kinds of reasons to construe this as rape. This may pertain to limited number of accusations, but it's another reason the accused merits due process by experienced professionals.
But trust DeVos? Never. And that's what's wrong with having such a thoroughly compromised and corrupt administration in charge.
262
@C Wolfe
Good for you for opposing sound policy because it is the idea of another party.
19
@C Wolfe. Really, you’ve seen many of these “regret” reports? Where? Seems to me that once again people make assumptions without evidence.
13
@C Wolfe
Your comment was commendable until you decided to "shoot the messenger".
17
Brava for taking a stand for due process and integrity.
5
Dear Ms. Bazelson: Thank you for speaking out on your position. I am one of your "allies on the Left," and I agree with your position, because I have witnessed similar miscarriages of justice against men at colleges where I've taught.
I would add that the problem isn't just that men of color are being harmed by the system; the cases I have witnessed have involved white men. So while I agree that men of color are likely to be viewed more suspiciously because of racial bias, I don't think that the issue should be presented as being mostly about men of color.
Furthermore, I know of some cases in which a female faculty/administrator encouraged a female victim to *not* ask for an investigation ("don't make waves"), seemingly to prevent potential bad publicity for their program.
Uncomfortable fact: Colleges care more about protecting their public image and their legal liability than they care about seeing that justice is truly served. Thus, they are not the appropriate body to execute these investigations and render judgments/penalties.
So, I argue that the problems of the current system go far beyond issues of black/white, female/male, etc. Framing things around those binary perspectives doesn't serve well to engage everyone in the necessary discussions.
The system is broken; and even though the Obama admin's intentions were noble, their directives made the problems worse.
I disagree with DeVos on almost every stance she takes; but I do agree with her on this issue.
417
What a thoughtful and well-articulated comment. It seems odd to also say it is brave because this sort of response should be considered part of normal discourse about these issues. But, unfortunately, it is also brave in the current environment.
20
@Paul-A
Excellent points. Thanks.
6
@Paul-A Take the investigation out of the hands of the schools and put it in the hands of law enforcement. Did you forget about Penn State?
As a gay man man pretty much out of the loop I have to ask the question as to why schools are left with the job of law enforcement so far outside the confines of their expertise. Administrators and fund-raisers are not skilled at policy or judicial inquiry. Wouldn't it be more productive to make changes to the blundering and poorly funded police programs that are failing to due an adequate job in cases of sexual misconduct. While I can appreciate that campus policy is always in need of updating, why is the job of law enforcement being handed over to schools that seem even more inept than the Justice Dept. Rates of on campus or off campus sexual assault are not changing radically because of policy changes at the desk of the Dean or the University President or the convoluted mind of Betsy (I don't a clue about education because I never went to public school) DeVos. Change law enforcement policy and practice rather than debating fairness on campus. It really is not relevant to the failure of enforcement of existing law or the creation of a level field of action in public life on or off campus. Rape and sexual assault are not part of the college curriculum. Why try to make it so?
1
Kudos to Ms. Bazelon for her brave stand, but she is right. As an administrator at a University this is a broken system. On what basis should Universities be relegated judge, jury, hangman, and counselor? We should have no more right (or obligation) to take the law into our own hands than any other institution. Imagine if your bank decided they didn't like the current regulations and decided they would create their own legal framework. You'd think that was ludicrous, yet that is essentially what educational institutions are expected to do (at tremendous cost). What's worse is the standard of guilt is 51% chance it happened for what amounts to a very serious criminal allegation. Universities need to protect students to the very best of their abilities, and when unfortunate incidents occur, they need to be at the front of the line to insure allegations are taken seriously and channeled to legal authorities. There are many complexities to handling these cases. I would not be opposed to setting up a special court with expert lawyers, counselors, and judges who specialize in the unique aspects of these cases (just like we have special courts for juveniles and the military) but under no circumstances, should Universities be serving as these courts themselves. It is a travesty of justice that Universities not only currently do function as such courts of law, but are forced to by the DOE. It is a well intentioned directive that grossly failed to understand its repercussions.
108
@DispatchesVA As you correctly note, a preponderance of evidence standard suggests that 49% of defendants, and I use the term loosely because they cannot actually defend themselves, who are convicted by these extrajudicial proceedings will be innocent.
How could it ever be just that an incompetent authority judges very young individuals on a standard that almost guarantees a high number of incorrect convictions? Furthermore the consequences of conviction are devastating, dismissal from the university (probably with a bunch of student loans) without a degree, permanently diminished earning potential and a scarlet letter for the rest of their lives.
I in no way want to play down the concerns of the accuser and their legitimate claims to justice. However, the consequences of a conviction are such that these decisions should only be made by competent authorities that are properly designed and equipped to make them.
4
@DispatchesVA
What does your university do about violating other rules it has, no doubt, established as part of a contract between student and university? Rules against stealing university property or damaging university property must be rules that, if broken, have consequences, even if they might also be crimes. Does your university have a process it must follow before it decides to expel a student for vandalism? One hopes. Does your university refer all misdeeds to the local police? Likely not.
The rules for students can be improved and the processes to ensure accuracy and fairness can be improved for any accusation of wrong doing. I would not put much stock in DeVos, but resuming the process to improve things is better than asserting that higher education has no clue and must "punt" to federal, state, or local law enforcement.
2
@DispatchesVA I disagree that the DOE "Dear Colleague" letter was well intentioned.
1
Someone accused of sexually assaulting another student on campus goes through the same due process that someone accused of cheating on an exam does. This is NOT a criminal trial. So why is Lara Bazelon writing as if it is?
This article seems to intentionally leave out that fact. Students "punished" by the university for rape are treated like students punished for other university infractions. They are NOT incarcerated. They may be - at worst - expelled. And often the punishment is even lighter. Just like the punishment of a student caught cheating who is punished does not mean that the student can demand a different due process than the one all students are subject to.
2
Cheating and plagiarism are not criminal offenses and those accusations are leveled by professors who must provide proof of the offense.
Equating an accusation of rape with plagiarism and how the accused should be treated is fatuous.
Why is the matter of cross-examining an accuser even worthy of discussion, much less contention?
3
Good piece. I don't think that we'll fix this until we change societal views, and the criminal justice system will then follow. Already, I think, things are getting better--victims are not as stigmatized, I think, as they once were--but are still not where they need to be. To think that college administrators using preponderance of evidence standard can arrive at justice is ludicrous.
Two things, I think, would be helpful.
One, abolish university police departments, particularly when schools are in urban areas that tend to have better police departments than rural areas. College students live in larger communities, they should live under the same standards and rules and arbiters of justice--and that includes police--as everyone else. Abolishing university police departments also reduces any chance of bias in investigating and adjudicating cases.
Two, treat allegations of sexual assault as criminal cases, to be handled by police and courts as opposed to college administrators. Many others have suggested the same thing. There are many reasons for that, all of which should be self evident.
Why on earth, in this day and age, are we relying on Universities to police themselves, when they've proven time and again they cannot?
These are police matters and should be treated as such. Not campus police, but local/county/state PD.
If an allegation of sexual assault comes to a mandatory reporter, the police need to be involved. Colleges shouldn't do their own investigations, nor should they be judge and jury of people over the age of 18 who make or are accused of any allegation. If the accuser doesn't want the police involved, fine, then nothing happens with it, either on the public side or the university side. Punishment for sexual assault on a college campus should have no different ruling of incarceration than if it happened on a city street, someone's domicile or in an office setting. Why is that even allowed?
And before anyone jumps down my throat for any reason, don't ask me about my past, I have suffered much at the hands of men, both in college and out.
4
You mean all accused are not guilty?
7
Rape is a felony and must be reported to law enforcement.
Period.
College personnel are not competent to investigate such crimes and the interests of neither the accuser nor the accused are served by asking academics to take on a task way above their pay grade.
4
Due process is not a zero sum game.
3
Whenever Betsy DeVos's name is attached to a policy change, I wonder about her motive. But I shouldn't.
It's always about someone making money.
For that reason alone, she should be disconnected from anything as far-reaching and destructive as assault. Leave police matters to the police.
I'm sure the self-righteous meddler can find other clever ways to harm to an entire generation of non-rich students.
@KJ That's just it - right now the police are not involved. And I fail to see how allowing due process "harms an entire generation of non-rich students."
3
@Harlod Dickman
Part of my (badly stated) point. Campus police forces can't be counted on to act in the best interests of victims. Investigations should be complete and unbiased.
There are so many things wrong with the kangaroo courts of universities trying to deal with the unintended consequences of the Title IX legislation, that you don't need to add any superfluous racial element to it.
3
This argument is still wrong! And race is beside the point! Schools and other private institutions have absolutely no business adjudicating criminal behavior, EVER.
That is for what we have police, prosecutors, and courts, and above all as a civilized society, due process.
I do not doubt that it is hard for someone who has been assaulted or raped to overcome their feelings of shame to call the police. Police are not always responsive, but that is a separate problem. Among other things, our obligation as citizens is stand up and take responsibility when we make accusations. Uncomfortable? Yes! Difficult? Yes! Essential? Always!
Recent feminist ideology conflates unpleasant consensual sex and rude remarks with criminal behavior. This is desperately unfair to the victims of ACTUAL crimes because it trivializes them as the public comes to see the whole thing correctly as a game of left-leaning "gotcha." This game of "gotcha" can and does destroy the lives of the falsely accused in the absence of due process to establish, beyond reasonable doubt, what actually happened.
De Vos' reforms go in the right direction but avoid the central issue, which is that the job of schools is to teach, and the job of the courts is to adjudicate.
Mixing the two compromises both!
7
I know I'm thinking outside the box here, but this could even happen to a white male student. And probably has. And that too would be a bad thing....
The problem is not a specifically racial one, it's just not very legal. Our judicial system doesn't work this way so why have colleges gotten away with it, ever? Colleges are not courts of law. There was never a legitimate reason for them to keep these "cases" in house.
5
At last the New Improved Justice of the Sexist Feminist Movement, especially the Instant Decision Kangaroo Tribunal, has started to undergo careful reconsideration. The present article contributes with a very welcome critique of the authoritarian legal innovations in their application to the campus, the administrative 50% crapshoot.
May this cause grow and accelerate. With due process, of course.
3
Ms. Bazelon gives us this quote: Professor Halley told me. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?”
The fact is, the REAL left does support the changes for there is nothing "progressive" about the current system. The support for this horrible system comes from a right-wing branch of feminism that continues to believe that women are the weaker sex and supports a return to the puritanical past.
4
There is a real heartbreak here for both the real victim and the accused because sadly, there is now a small movement of university women who are "setting up" promising academic men, then making false accusations towards them to the university whereby the men are suspended or expelled and their collegiate careers ruined. These men cannot take courses on-line or apply to other universities because of the question on the applications about violations of code of conduct. Meanwhile, these same girls are flooding their social media with how they have been "a victim of sexual violence and want to help others." This discredits the true victims and destroys many. In most cases the university favours the one who makes the allegations without giving the accused a fair hearing. The New York Times and Miami Herald really should consider doing some intense investigative reporting here. I say this as one who hurts very much for the true victims.
1
It is so uncomfortable to have to agree with Ms. DeVos, but if due process is in fact a value, then what has happened on college campuses, with male students summoned to answer questions without being informed about the charges, without being allowed to face their accusers for fear of re victimizing the accuser, who needs a "safe space," then we have to agree.
Nobody wants to allow rape on campus.
But the failure to recognize the power of and damage done by accusation is deplorable.
This is an issue made to order for Fox News, Rush Limbaugh and all those who travel with them.
5
I realize that schools have social and community characteristics, but it seems foolish to expect them to competently exercise a criminal justice function. Law and courts are complex enough that even our justice systems have difficulty getting them right. How can someone reasonably expect college professors and administrators, who engage in this function only occasionally, to be as good or better?
3
It is a shame that one needs to appeal to the liberal soft spot for disenfranchised minorities in order to use common sense about an issue that can ruin people from all walks of life. Ms. Bazelon's work is inspiring, and the list of things I don't despise about the Trump Administration is extremely short, but it feels so odd to need to identify as a Democrat and Feminist in order to credibly reason through a problem. I hope a story about a white man would get equal NYT sympathy, and I hope I don't need to post my voting CV in order to praise the police, examine the efficacy of a tax cut or talk about transgender questions.
5
Title IX created a misfit when it made schools the arbiters of disputes that were criminal in nature. Colleges are not courts, and both habeas corpus and presumptions of innocence were lost in the bargain. I despise Betsy DeVoss; she is a religious zealot and spoiled rich girl, has no sympathy or even understanding of the role of public secular education and protections for disabled students, and has worked to protect the for-profit sector's abuse of indebted students. That said, nearly everyone in academia agrees that campus sexual abuse policies require a fundamental reboot. I don't care whether it is DeVoss or a saint that does it, but restoring habeas corpus and presumption of innocence has to happen. Relocating the entire process to courts is the best solution.
9
I don't see how labeling one's self as a 'Democrat' and/or 'feminist' has anything to do with anything. This is a classic case of settling for the lesser of two broken options. Is that mentality seamlessly bonded with being a democrat and/or a feminist? Remind me to stay away from both of those subcultures if that's the case. Boo.
3
“I’ve assisted multiple men of color, a Dreamer, a homeless man and two trans students,” Professor Halley told me. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?”
Easy answer, identity politics is like Russian roulette. You might be the "victim class" in one situation but the "oppressor" in the next based solely on your identity and not anything you've done or haven't done.
The answer to that is to treat people equally regardless of their identities.
7
Race has nothing to do with this.
Rape is a serious crime and must be tried in court, where both accused and accuser must present their cases in front of a judge and/or jury.
College administrators and faculty members are utterly unequipped to deal with matters of law.
5
Coming from the perspective of outside the US, it sounds crazy to me, that people will be judged by these amateur pseudo justice system for crimes as serious as rape..
It's not fair for the accuser nor the accused, because neither is covered by the full protections of the law. Also, the gathering of information and clues is also amateurish, which means that it's more difficult for justice to be served.
This college justice system is flawed, and it's results can not be trusted.. it should be Illegal.
5
I am a progressive male old enough to have participated in the fledgling struggles for equality, etc. I certainly don't want Title IX weakened; DeVos and Trump would do that given any little pathway to "reform". I am wary!
But Lara Bazelon sees a lot of innocents accused; appears to be her business specialty. Brava! I appreciate her concern.
She sees the grave damage that overzealous/politically oriented prosecutors and/or agenda oriented "detective work" can inflict on the really innocent or mildly guilty accused.
She sees how becoming an "accused" of certain crimes like rape or child abuse can stigmatize even a person shown 100% clinically innocent by investigation or by actual trail.
She knows the court of public opinion including bigotry too often overtakes clinical official process.
And perhaps Title IX has a flaw; it may give learning institutions the power of legal detective, judge, and jury re: activity that should not be in their parochial purview.
Really correct above!
Victimless crimes are one thing but crimes with real victims another.
For the latter there should only be one path - the official professional legal system. Victims call 911, or sue for protection, sue for damages. Learning institutions must support those actions and not assume other powers extra-judicial.
Official legal system must protect accused/accusers and issue severe penalties to accusers if they are found to have purposely falsely accused.
If you want a real fix fix it right!
3
This issue of how to handle rape on college campuses continues to mystify me. Why should an accusation of rape be handled any differently when perpetrated by a college student against a fellow student than it is in the "real world". Are the effects not the same? If a student were to walk into an off campus bar, meet a woman and rape her would he not be subject to the legal system? If an act rises to the level of rape the police should be called and if warranted the accused should be arrested. By utilizing the legal system we achieve three goals. One, the accused has all of the rights afforded by law, two the victim can achieve justice, and three we will change the culture of "boys being boys" in America's colleges. Young men will be better able to understand "no means no" when they or one of their friends is sent to prison.
3
It shouldn't matter if you're a Democrat, a feminist, white, black...whatever. If you're an American you should have deep issues with the way sex crimes are being adjudicated in our colleges. We're all supposed to have the right to due process, the presumption of innocence and the right to confront our accusers. Under the current rules, none of these things exist. A person is allowed to anonymously accuse someone of a crime that is subject to the death penalty in some states, the accused is immediately removed from any classes or the vicinity of the accuser, and no actual police report is required to be filed. If found 'guilty' by the kangaroo court, the accused loses any/all tuition paid, is expelled and labeled a sex offender. That's not justice.
5
In this day and age of 'believe the women!' (at all costs, forever and always just as if no college woman has ever levied a false accusation simply to avoid embarrassment at home), I thought I had to be seeing things when I, too, noticed Betsy DeVos actually doing something right: Bringing due process back to campuses all too willing to believe--without a shred of evidence--and expel at will any male student who stood 'accused' of 'alleged' misconduct.
TITLE IX didn't escape the feminists that matter the most: the ones who really ARE about equality like Camille Paglia, Erin Pizzey, Christina Hoff-Summers but especially Janice Fiamengo of the University of Ottawa and Karen Straughn who both publish regularly via You Tube videos and present the best arguments ever for men who can easily get trapped in a feminist web which the court systems in both the U.S. and Canada not only condone but encourage with the new dictum that, once accused, no amount of retraction can ever restore your innocence.
Brava to Lara Bazelon for noticing also and not making me think it was all a mirage. Most feminists who wish, of course, to always have the upper hand with men, will likely comment as if they hadn't read the article the same way so many of them are all for the first amendment, as long as it suits them. The ones who organized protests on campuses against men. I'm no conservative and was the first one to scoff at DeVos's appointment but this time, she's on to something I'm behind.
3
Ms. Bazelon, thank you for this article. As a fellow Democrat and feminist I agree wholeheartedly. I've come under attack by some on the left for expressing similar views and for what I can only describe as not being ideologically pure enough. Originally I was on board with the 'believe women' movement as so many of us have been assualted and yet our claims have not been taken seriously, But what I've seen again and again is a line of reasoning that goes something like, "most women don't lie about these assualts therefore the accused must be guilty." Yes we need improvement in the way sexual assualt allegations are handled, but we also need to have due process and believe not just women, but the truth - something women don't have a monopoly on.
7
Neither extreme (de Vos or the Obama era letter) is correct. Universities are very bad at adjudicating serious crimes like rape - their investigators are naive and poorly supported, their definitions of sexual assault are over broad and their judicial process bears little resemblance to the well-developed and generally thought to be fair adversarial jury system. On the other hand, they need to be welcoming to all students and likely should adjudicate and/or negotiate resolutions - likely generally short of expulsion or similar - to many sexually related offenses which are non-criminal but remarkably offensive or criminal offenses which hard to prove. Such things as "we were both drunk but now one of us hates the other" or fraternities with rape and offensive sex enabling customs and mild sexual harassment really belong in the university, and university specific consequences to crimes should clearly be adjudicated by universities.
1
The ultimate answer to campus sexual assault is to await the end of the "hook up" culture. Until that happens, as it will, defendants are entitled to due process protections against such claims. This protection applies not just to public institutions but to private/religious colleges as well. There have simply been too many egregious examples of abuse (e.g. the infamous Washington & Lee "regret rape" case) where courts have had to step in to protect defendants' rights to ignore the outrageous outcomes of the Obama system.
2
Having a university carry out criminal justice trials is opening a can of worms. It’s like asking the baker to perform heart surgery. Call 911.
4
The problem is that we can't trust DeVos, and the devil is in the details.
Yes, the Obama rules went too far in the direction of not giving due process to the accused.
The problem with the DeVos rules is that they are very cleverly using the details to undermine the ability of women to seek and get redress.
You can easily find articles that go into detail on this.
2
Bazelon justifies her position based on "racial dynamics" which is flawed and unfair.
All accused,regardless of race,ethnicity,religion and gender, deserve "due process" rights.
Additionally using disproportionate racial statistics based on accusations of sexual violations is meaningless without the facts of who actually committed those sexual violations.
2
I guess my fear is that it will make it more difficult for women to accuse men of sexual assault. It's already very difficult and the woman normally pays a huge price for it, no matter the outcome.
I doubt DeVoss cares much either way. Somehow she sees this as a way for someone to make more money. That seems to be the only thing that drives her.
3
I am always suspect when an author resorts to self-labeling (Democrat-Feminist) to enhance their credibility. The purpose of Betsy DeVos’ regulations are to stifle victims and let higher education off the hook. Due process is very important and the accused must be able to confront allegations and present a robust defense. However, in this instance, you cannot decontextualize these regulations from their political source.
2
Do universities also decide cases of robbery, assault, murder, etc. etc. etc? Why are schools, or churches for that matter, adjudicating sexual assault? It's a crime, not a misbehavior.
4
There must be a recognition that college deans, or any other "educrates," are ill-equipped to handle cases of sexual assault. It is no wonder that few people are satisfied with the results of college administrators acting as prosecutors, judges, and juries. The only responsibility that colleges must assume is the responsibility of making sure that allegations of sexual assault are reported to law enforcement and/or the judicial system immediately.
The police and the courts are the places to adjudicate allegations of criminal behavior. These systems are designed to protect the rights of both the accusers and the accused. Colleges that fail to report such allegations to law enforcement should be penalized with the loss of all or part of their federal funding. College officials who fail in their duty to report allegations of sexual crimes can be indicted for obstructing justice. A few indictments is all it would take for "educrats" to get the idea that they when allegations of criminal activity are reported their sole job is to report those allegations to law enforcement and the courts...the two systems best equipped to adjudicate such matters.
2
What are colleges and universities doing to prepare 18 year old men and women for this part of adult life? Very little as they continue to focus on the publish or perish demands of academic life. College faculties have to grasp the nature of kids being cast upon their campus. Younger than they appear and in need of more parenting than professors like to deliver.
1
I believe in justice, but the writer left out a salient part of the DeVos plan which greatly redefined what an assault is whereby given a person the right to inappropriately touch someone and get away with it!
The problem is giving the colleges the right to investigate over the police. If a person lied about the asssault, then criminal charges should also be in play. But the DeVos plan is wrong on so many levels like her changes involving student loans and unscrupulous for-profit tech schools like Trump U. Not to mention how she is undercutting special ed students and public ed.
1
I still don't understand why students who are victims of crime at their university do not go to the police in the community. Why do they rely on these quasi-judicial college proceedings, conducted by administrators and not law enforcement and that can only result in expulsion from the school, but no real justice? If my child was a victim of any crime, I would go directly to the police in the city, and I would expect a full investigation like any other citizen is entitled to. Why are college students denied this right?
2
How about we nix university/college fiefdoms?
Allegations of crimes should be processed by local/state/federal law enforcement who have the resources, education and oversight.
2
Ms. Bazelon begins by stating that she's a Democrat and a feminist, as a way of bolstering her credibility. There may well be flaws in Title IX, but the reforms which Sec. DeVos would have us change would take campuses back decades, and put women's lives in peril. I'm a Democrat and believe in Feminism. My opinion is that across the board, placing any faith in the idea that any Secretary in this Administration will promote positive change, is dangerous.
So what your saying is that because the policy comes from the current administration it cannot be worthy of any consideration and that debate on the issue is not necessary? Indicative of the larger problem here.
3
Which parts of these regs take us back decades and put the lives of women in peril? Does your opinion happen to be rooted in any facts or just a general distaste for where they’re coming from? I can’t stand DeVos or anything about this administration but I support what’s right, and these proposed regs are absolutely just.
2
tl;dr: "I have a client who may or may not be guilty and to protect him, I think the law itself should change and Betsy DeVos should be applauded for trying to protect institutions from being sued."
I'm a feminist and a socialist, and nothing Betsy DeVos has done (or will do) is worthy of support.
Don't protect sexual predators in the name of anti-racism. It is possible (preferable [obligatory]) to address racial bias without attacking victims of sexual assault.
2
The college or university is in a conflict of interest position, and the truth of the matter must contend with the irrelevancies of the institution’s concerns over public image, professors, alumni, student activists, and possibly funding issues. Unfortunately, colleges and universities are dictatorships or oligarchies and have limited ability or impetus to accurately assess conflict and behavioral issues that have wider implications for the institutions.
2
In "he said, she said" cases of sexual assault, I think the benefit of the doubt should go to the accuser. The accuser should not be forced to attend classes with the accused. However, that being said, if the evidence is not clear (and the accused denies the accusation), perhaps arrangements could be made that instead of expulsion, the accused was allowed to transfer to another, similar school (schools could partner with each other). The student would be on probation at that school (so the school would be aware of the accusations), but would be given a chance at redemption (or be allowed to continue their life with a minor hiccup, if they are innocent).
Clearer cases of sexual assault could be prosecuted criminally, but there, the presumption of innocence should be with the accused (as it is in any judicial case).
These cases are complicated, but we need to keep trying to resolve them rather than ignore them and hope they go away.
Almost every article on this comes from one side or the other. Either "I was victim; the current rules are necessary" or "I was falsely accused; the rules must change."
This is typical of the dysfunctional state of politics these days.
We need to see both sides and find a solution that works for everyone!
As a parent with a small boy and a small girl, I can imagine (with great horror) that either could be involved in such a situation at some point.
This double-perspective drives the discussion in a totally different and more productive direction:
First and foremost: the goal should not be primarily about punishing offenders or giving due process to the accused, it should be about how to prevent these incidents happening in the first place!! Even if the accused is punished, the victim has still been greatly harmed.
Second: We need a much more reliable process to assess guilt and find out what happened. "He said, she said" is an example of the utterly pathetic lack of progress that we have made in criminal justice - it's no better than they had in Greece 3000 years ago!! Imagine if science or medicine were still at that stage. It is shocking.
In this case, both lines point clearly to one solution: positive consent. This rules out any misunderstanding. This could easily be verified (e.g. with an app), and could be withdrawn at any time. A man who does not get consent does so at his own risk. A woman who consents cannot later claim that sex wasn't consensual.
2
Ms. Bazelon presents a powerful anecdotal case, but misses the forest for the trees. Recognizing the possibility - likelihood - of implicit racial or ethnic bias is an issue in both adjudication within higher education and in the criminal justice system. It is not justification for endorsing DeVos's so-called reforms. DeVos and her companions are motivated by something much different than protecting the rights of powerless students. They are part of a much broader campaign to diminish the voices of thousands of women. For every sensational case of a black man wrongfully accused, there are 500 cases of women, including women of color, not being heard.
The preponderance of comments suggesting that colleges have no business adjudicating these matters are rather astonishing. Colleges have a higher obligation to maintain a safe community. A college can, and frequent does, make decisions of great consequence with no fastidious regard to criminal standards of proof. Students are expelled or suspended for academic dishonesty, for example. One highly recommended comment suggests that events on a campus should be treated "no differently" that allegations of assault at a "bar downtown." There are many, many behaviors that might be legally protected at a "bar downtown" or another place, that need not be tolerated on a campus. For many reasons, educational and other, campuses have an important right to hold students to higher expectations in order to remain in the community.
1
@Barking Doggerel: Academic dishonesty is one thing. Allegations of sexual assault, aka felonious behavior, is not at all like allegations of dishonesty. Colleges may have a duty to provide a safe environment, but that does not mean they get to replace the criminal justice system when it pleases them to do so. The only duty colleges ought to have in this matter is to immediately report allegations of sexual misconduct to the police or the court system. Period!
3
@Cheri Solien You present a false choice. There is no reason a college can't adjudicate such an allegation and also report it to the police. I was not suggestion college discipline as a replacement for appropriate criminal justice. My point is that the college may, perhaps should, remove an assaulter from the community even if the court system does not convict.
Your position and those of many commenters imply that college students can behave with impunity unless their behavior is criminal and proven beyond a reasonable doubt. That is not a reasonable standard for maintaining a safe, collegial campus environment.
This analysis is disturbing, and not for the reason most NYTimes readers will care about.
That the author relies on the potential race of the accused to make her case is ... racist. The process shouldn't rely on the race of the accused or accuser.
Justice should be colorblind.
I applaud that she points out that the current Title IX process is broken and needs to protect all parties involved. Accusers (presumably women) deserve no different process because the accused is a specific race. Women of color also deserve the same process as white women. In the end, justice should not bend to us because of the color of our skin.
3
@ML
In your zeal to pounce on the dreaded Diversity Politics you have misread ms Bazelon’s point. She is simply pointing out that in an adjudicatory system differential harshness to members of a minority group is a good sign of a process that is unfair at the root. There is nothing political about this familiar phenomenon.
I’m amazed that the Secretary of Education can’t seem to focus on education.
This is where we get to ask the question(s):
"What Would Betsy Do?"
and,
"What Would Lara Do?"
Would either of these women sit around and place their future into an "advisers" hands?
Would either woman "opt in"?
No.
Both of these women, if sexually assaulted or abused, would call their attorneys and those attorneys would then call the cops and there would be depositions taken and witnesses lined up and on and on and.....
Call the cops.
Enough with these quasi-legal legal systems where you sign away your rights before anyone will even take a report.
These women would never use this system. They would use their personal and political power and wealth to call a cop.
And, yes, this is pitting one disadvantaged group against another.
But what I find interesting is that "feminist" Lara Brazelon does not advise any of us to PASS THE EQUAL RIGHTS AMENDMENT, a legal solution that would clean up half of this self-created confusion.
What would Betsy and Lara do?
Nothing that they are telling others to do.
That's your warning.
5
The issue is the trivialization of crimes which occurs when they are left to any one other than the police and the courts.
While the system is far from perfect--universities don't adjudicate accusations of armed assault, why should they adjudicate crimes of a sexual nature.
Crime is crime. Sex muddies the water.
What we need is an overhaul of the criminal justice system in how it deals with victims of crime, but there is not place for the courts in this.
If the young woman in the article had needed to go to the police to make this accusation, I'm fairly certain she would not have done it. And yes, I know, that many people do not report such crimes to the police, because of how the police deal with them, but that's the place for reform, not schools, which are ripe for this kind of nonsense.
I speak as a feminist,, a university professor, and a mother with both male and female offspring in their teens and twenties
10
I agree with Lara Bazelon about the injustice in the way universities handle disciplinary cases, sexual assault among them. I come from the perspective of having served as a faculty member reviewing such cases. In addition to the lack of legal protections for both the alleged victims and perpetrators, there is the lack of sufficient training and screening of disciplinary committee members. Further, some still act in loco parentis in the way they treat those who come before them. The alleged victims and alleged perpetrators must have adequate legal and procedual protections. The stakes are to high to do anything less.
5
Fair is fair, as both sides should have a chance to have their truths heard - equally. However, Ms. Bazelon, are you showing us the whole of the reforms? Mrs. DeVos and the trump administration have a way of distorting the truth and the law to their own advantage or distorted views of their world.
I want to see all of the Title IX reforms.
Ms. Bazelon, I do not understand why you immediately think that the "left" will disagree with you. I thank you for your point of view.
2
@Another Consideration
The use of the phrase "their truths" creates space for a fractured understanding of facts.
There is one truth and our ability to perceive and recall it varies.
Realities like climate change and rape and a tree falling in the woods are no less true because we don't accept them in some narcissistic view of the truth.
2
@ML - Thanks for the correction.
This is a thoughtful and serious consideration of this issue. And in the context of today's increasingly hostile discourse, it is downright heroic.
7
Simple question: What's the chances of DeVos coming up with something that would actually be better? OK. That was an easy one.
After reading almost all of the comments, it seems that both options (report to the police or the school) for victims need to be improved.
Many of you commenters have many valid points and although DeVos's reform might be a step towards fairness/justice, this just ain't that simple.
1
I appreciate Ms Bazelon’s standing up for the Title IX changes being put forward by Secy DeVos. However, I’d like to hear whether she would have applauded these changes but for the racial factors she discussed. A prevailing issue on the left is to see everything through the lens of race.
10
We need to have Justice points system, where the accused and the accusers privilege is taken into account. In the case discussed in the article the accused should be afforded more due process since he comes from a group who has suffered more than that of the accuser.
2
@Dave
Wow. I hope you are joking.
1
Wow, affirmative action for criminals. Just when I thought I’d heard it all.
2
I consider myself a liberal, and I support the rule changes for a different reason. Men are punished based on "preponderance of the evidence," while women, like the infamous Jackie Coakley, who fabricate stories of sexual assault are never punished for it. That sort of unequal treatment can only lead to backlash, not to better treatment of women. I believe that women who are victims of sexual violence will be more likely to be believed and more likely to obtain justice under a system that is perceived as fair for all.
16
This is a brave piece. It's also an example of how social justice warriors working on the front lines of an issue often see it differently than people who just read about it. (Immigration is another example.) Some of the comments here, intelligent as they seem, betray a lack of understanding of how we got to where we are today. An example are those questioning why these cases are handled at the campus level. I'm a former prosecutor (although never sex crimes) and have taken a dozen Continuing Legal Education courses on sexual assault over the years, including several that focus on challenges peculiar to campuses, and I still don't have a good understanding of the issues. It's challenging; listen with an open mind to the experts.
5
If 18 year olds out of college are required to be adults and are held to that legally why are our "best and brightest " in college treated as school children?
Friends and associates that work in university housing with students now must help dormies learn how to communicate face to face instead through digital devices. Real life social interactions are foreign to many college students and they stumble through them misinterpreting each other.
9
Title IX is a fundamentally flawed by imposing a requirement on universities to be judge and jury without corresponding justice and judicial authority. Unlike K12 schools, where schools have a custodial responsibility, universities a community of adults. They must adhere to the laws. Lara Bazelon is correct and the Obama administration overreached threatening initially 100 universities with sanctions and creating a regime which resulted in an unbalanced scale of justice. Title IX should be modified to force the reporting. But the adjudication of what amount to criminal issues should be done by the police and the courts. Period.
12
Isn’t this pitting two disadvantaged groups against each other? Rights of women vs rights of African American men. Why can’t we have both? If there’s racial bias in the system, let’s fix that instead of weakening protections for victims. The Devos’ of the world would much rather we fight over their scraps after they’ve enjoyed the full meal without any inconvenience.
4
@Rachel
We have the right to accuse people who harmed us. The accusation should be believable and properly investigated. If charges are warranted, then we have the right to have our accusation heard in court.
The right to question our accuser protects us all. If I make a criminal accusation I must be able to back it up with evidence and I must be questioned to ensure I am telling the truth.
To be a victim, one has to have evidence there was a crime. The focus on evidence tends to be lacking in the Obama Title IX process. This puts us all in danger. I would prefer the Federal government bans these Title IX hearings and requires these cases be handled in the local courts.
17
@skramsv
How would you address the fact that these crimes typically take place without witnesses or physical evidence? They are about the abuse of power. Abusers deliberately exploit secrecy and silence. You have to address this if you’re going to take the position above. If a tree falls in the woods and no one hears it, did it fall? How are you going to address this?
Unfortunately, I must consider the source of the Title IX overhaul and I expect nothing good to come from DeVos.
8
@Tatateeta - unfortunately, your attitude is part of the greater problem. DeVos is on the right path with these changes, like her or not.
5
@Tatateeta
Even if it’s a great idea I will oppose it because it is advocated by my political opponents? Huh.
1
“The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.”
According to the U.S. Bureau of Justice Statistics (BJS) in 2013 black males accounted for 37% of the total male prison population, white males 32%, and Hispanic males 22%.
The blame is placed where logic would dictate it be placed.
6
@Tom ,Retired Florida Junkman: No, not necessarily. For the same crimes, rape in particular, Black males are often punished much harsher than White males.
The administrative due process proposals discussed by Ms. Bazelon apply not only to allegations of rape and other sexual assaults but also to allegations of sexual harassment, which in employment contexts are handled through civil, rather than criminal, proceedings or an employee disciplinary process. Sexual harassment allegations short of sexual assault are typically not subject to police jurisdiction.
Even if sexual assault charges are brought to the police, university disciplinary proceedings are important, especially to deal with the effects of an alleged assault during the often lengthy course of a criminal investigation and prosecution. In this context, the due process proposals Ms. Bazelon defends are, on balance, beneficial.
The real evil of the DeVos proposals are not these due process provisions but their significant narrowing of the scope of university disciplinary proceedings, which would not be triggered by off-campus misconduct among students and/or faculty and would not bring complaints into the system unless they were made to a designated university official, rather than to teachers or coaches to whom a student has ready access and an existing, trusting relationship.
2
@rungus
If a student commits rape, they belong in prison, not just off campus. No rape “lite” anymore.
1
Statements made to the police detectives are not "proof" of anything. They are often made under duress, without counsel present and misinterpreted and designed to reflect the "opinion" of prosecutors and the district's bias. Even circumstantial evidence presented in a Court is flimsy at best. Rarely, if ever, does a "victim" suffer the consequences of exaggerated claims. Leaves one wondering, where does the alleged perpetrator of any crime go to get their reputation back?
5
The same place that women get their sense of personal safety back. And on that subject, a recent study showed that in NYC, the steps that women take to feel safe are in effect a pink tax of over $50/month for things like lost wage opportunities, the cost of UbEr over mass transit, etc.
@From Where I Sit
The same place that women get their sense of personal safety back.
Umm...please enlighten us as to where that is?
@JH
I doesn’t exist. That’s the comparative point.
Sexual abuse is a very difficult area of our existence. I'm more inclined to side with the alleged victim, but in the example first given, where there is a 50/50 rule operating, it is hard to understand how anyone could decide on one over the other, but yet they did. No doubt, race may have entered in to the decision. It certainly seems unjust, but how would you fix the situation?
If it was just a matter of revising the regulations that defined a just investigation, one could not argue with that, since much of what is described here as unjust sounds like the kind of hand washing we might expect from school administrators, which leads me to the suggestion that these complaints should not be investigated by the school at all, since in reality they require a neutral authority, and that is certainly not the school. It could be and should be law enforcement, investigators trained and experienced in these kind of investigations.
2
Excellent article and example.
I feel fortunate to have been to shy to be involved with any woman at a physically intimate level until after college.
Was a blessing..
13
Don't blame Title IX because Universities don't know how to dial 911.
When a felony is alleged to have been committed, it stops being a University problem. Unfortunately, to protect their precious reputations and endowments, officials try to "handle" the "issues" without honest law enforcement intervention. That is the problem here, not Title IX.
Remember Florida State's Jameis Winston? The star QB that should be in prison, not playing for the NFL? It was a cover-up of epic proportions designed to skirt not only Title IX but honest law enforcement. Winston's crimes were covered up by the University, the Campus police and the local police. One call to an honest local, not university, police department (or the FBI when the local cops are dirty) to report the crime and file charges would have begun due process. When we are talking about rape or any violent crime, the University should get the heck out of the way.
The woman falsely accusing is the exception, far from the rule, and the author of this piece knows it. If a rape is alleged to have been committed, don't look to Title IX to solve it.
Don't blame Title IX. Dial 9-1-1, and stop the cover-ups.
FYI: Title IX is MUCH more than this one element highlighted by the author. It provided for millions of females like me to get equal opportunities in sports to that of our male peers.
17
@Sarah
Title IX and the Dear Colleague letter directly lead to the common practice of not going to law enforcement. Directly. Without a doubt. Your view is not the majority view on campuses as a crazy as that sounds it’s true, even outside of universities we had gymnasts not going to police.
1
Colleges find themselves having to resolve sexual assault cases because they have taken on the responsibility of providing 24/7 babysitting for legal adults.
Put me in charge of a college:
Focus on education. Close the dorms, shut down the frats. Forget touchy-feely “campus life”.
Message to students: Attend your classes, then leave. You personal life is your own business, just keep it off campus. And if you are the victim of a crime, call 911.
26
@hb freddie: I tend to agree with you, but many parents of 18- or 19- year olds will send their kids to another college that practices "in loco parentis", and your's will have to close its doors, or focus on older students.
1
Whenever issues such as this is discussed, you get people citing the false statistic that only 2-10 percent of rape claims are false, implying that the other 90-98 percent are true. No such study has ever found that, nor could it -- since so many rape allegations are never adjudicated, how could any study determine whether the accusations are true or false?
What these studies do is define "false" as essentially "undeniably proven false." Then they have category of proven true, and then a category of "can't tell if it's true or false." And guess what -- the last category is always in the high 40 percent range. So even if you believe in these studies, they always end up showing that as much or more than 50 percent of accusations are either proven false, or could be false. But nonetheless, the false spin on these studies goes on and on.
18
Doesn’t matter. Rape and sexual assault and harassment and male privilege are too serious and far too damaging to be worried about stats.
Having worked in higher education, I am convinced they are incapable of providing a fair and equitable judicial process for cases involving alleged criminal behavior. When an institution of higher learning is involved, there are now three interested parties with skin-in-the-game: the accuser, the accused and the institution. The possibility of the decision being made for reasons other than the evidence presented, looms large.
If an individual believes they have been sexually assaulted, they should report the incident to the police and let our criminal justice system handle the situation. Alternatively they could file suit in civll court. In either case the accusation is dealt with by system designed to do so.
Simply put, academics educate the do not litigate.
27
@sjpbpp I’m under the impression a lot of the accusers know they don’t stand a chance if they go to the police, because what happened was really consensual sex and regret afterwards.
@HLN There are a number of reasons accusers don't go to the police but research shows that "consensual sex and regret afterwards" is seldom the reason. Self-blame, fear, embarrassment and lack of confidence in the criminal justice system are much more common.
The real purpose behind DeVos’s reforms is not to protect the accused. It is to help schools avoid liability. Period. This op ed, while describing an unfortunate case, does not address many of the real problems with the proposed reform. For example, the proposed rules would absolve schools from liability for failure to act in cases where a sexual assault occurred off campus. If you are unlucky enough to be sexually assaulted at a fraternity house or in an off-campus apartment, your school does not have to take action. Plus, the proposed rules significantly narrow the definition of harassment and require an accuser to prove that a school has actual knowledge of harassment even if they reasonably should have known that harassment occurred.
Proving sexual assault in a “he said, she said” case is almost impossible in a criminal court, so Title IX is supposed to provide an option to students who can’t prove assault beyond a reasonable doubt but who also may not want to attend classes with their rapist. Removing a probable rapist from school is not the same as putting someone in jail and labeling them a sex offender. But the biggest problem by far of the proposed regs is that they remove almost every obligation from a school to act at all in cases of sexual assault or harassment.
5
That's just not true. Higher education almost unanimously - certainly with a large majority - opposes Trump, DeVos, and these proposed changes.
2
@Kristi Do you believe that guys should be expelled and have their records tarnished forever for an unwanted kiss or for looking at someone the wrong way? Because that's how many schools define harassment. And your use of the word rapist implies presumed guilt. Accused does not mean guilty, in any allegation.
And your last point is just wrong. Have you read the proposed regulations at all?
3
@Kristi Probable according to who? That's the problem. And that "probable rapist" has a name, has a life, has aspirations just like you and me. Harming that future should be based on much more than the word "probable." That's really what this article is about.
2
Bravo to Ms. Bazelon.
Critics of DeVos seem to think that a few dishonest criminal charges (e.g. Duke lacrosse team in 2006) are just fine, in the name of "getting justice". This is a lamentable contradiction. There can be no justice without due process.
22
There is never any good reason to get rid of "innocent until proven guilty". The evidence of bias against black men and easy assumptions of malfeasance or sexual intent (remember Lena Dunham's accusations against Odell Beckham for SITTING next to her ) make it even more critical that everyone get due process with robust protections for the accused and high consistent standards of proof.
21
The standards you demand only apply in a court setting where one is being prosecuted by the government with possible outcomes of fines, imprisonment and/or death. Without ALL of those parameters, “innocent until proven guilty” and “beyond a reasonable doubt” DO NOT apply. As far as Odell Beckham, if his actions made Ms Dunham even the slightest bit uncomfortable, he was violating her rights. Women are not subject to some broad standard of conduct they will accept. Each woman deserves to set the bar when and where they wish. That can vary by location and to whom it applies as well as the acts that trigger it. I recently was on the receiving end of a loud, lengthy, obscene tirade by a woman whom I held a door open for as I exited. She was but two or three steps behind me and I would have held it for anyone. But it turns out she was offended. That was her right. She felt it necessary to point it out to me which was also her right.
Bravo, Ms. Bazelon. You are absolutely correct. Perhaps not politically correct, but the moral and legal version of correctness still carries resonance, too.
7
@John D
Why is Obama never asked about this issue?
And that pesky little thing called the right to remain silent? DeVos' changes do not go nearly far enough. The right to confront an accuser, the presumption of innocence, the right to remain silent, the right to representation by counsel -- these and others were won over centuries of struggle. Many colleges, including the Ivy League Cornell, came out of the struggles of the 60s and 70s with codes that preserved each and every one of these, and had standards for guilt that, if they were not always "beyond reasonable doubt", at least reached "clear and convincing." And they were not adjudicated by a Title IX officer with a vested interest in job security.
Only some of these protections are being returned. It is typical of the Times that not a jot or tittle about the right to remain silent is present in this story, an essential part of the burden of proof on the accuser.
9
Having a young relative in prison for a crime he did not commit because it came down to he said/she said and the juries response was "why would she lie?" we know the heartache of the family of the falsely accused. In this case it was an attempt to get money from a young man who had just come into a small inheritance. Of course the money was spent on his attorney's fees so everyone lost, but especially the one in jail who will be labelled as an offender for the rest of his life!
16
The solution to MANY of our society problems are mental health, aggravated by drugs used to address those mental ‘issues’. Pharma drugs, or street drugs, or alcohol. Start by eliminating the ‘celebrating’ or ‘making light’ of drunkenness.
2
This was an excellent, thoughtful column. Thank you for publishing it.
4
This is an interesting look into the psyche of women regarding whether it is appropriate to make exceptions to the judicial canon or 'innocent until proven guilty' when it comes to accusations of sexual assault.
There is a tendency for the 'socio-politically correct' class to redefine what is and is not allowable in speech, in race relations, and now in bed. These revisions are based not on facts and evidence, but what Stephen Colbert called 'truthiness' and virtue signaling.
There are many posts about women not receiving "justice." Yet what would "justice" look like? The hookup culture on most campuses encourages sex, but not commitment- and when a woman wants that, and the man does not, it can easily become an accusation of sexual assault. If the University admins are told to believe the woman a priori... Is this the fairness you are looking for?
11
Camille Paglia has made a forceful argument that the standard of beyond a reasonable doubt is abusive to women and should not apply in cases where women are victims of male sexual assaults or rape. We would do well to recognize this and offer such protection to women.
@From Where I Sit How many young men falsely accused, lives ruined would be 'acceptable' for you to feel that women are adequately protected? Our justice system is predicated on 'better to let 10 guilty go free than to imprison one innocent'. Do you not see where a judge could find herself saying "there's no evidence, but I believe where there's smoke (an accusation) there's fire- guilty!"
1
I have been part of a university's discipline system and finally resigned because decisions were subject to change by a senior administrator. When a crime is alleged, dial 9-1-1. Cut out the arbitrary middleman.
23
Let's see . . . attempted rape, rape, and other sexual assaults are crimes. It has never been clear to me why colleges think they need to adjucate these situations themselves rather than engaging with local police departments with officers who are trained in dealing with rape/assault cases. No, they are not perfect either. But from some of the horror stories I've read about college sexual assaults, I gather that neither the victim nor the perpetrator is likely to be treated justly. And maybe the knowledge that police will be involved might act as a deterrent.
26
@MB
No colleges think that they can adjudicate these situations--they're being forced by legislation and by Justice Department mandates to adjudicate these problems. Blame your Congress and Justice Department, not the university.
2
@MB
4th sentence should read . . . But from some of the horror stories I've read about colleges handling sexual assaults, . . . .
A long time ago I sat on a college honor council for four years. Allegations of sexual misconduct were among the most difficult we had to adjudicate.
Some of these cases did not involve just an accuser and accused. In some instances friends and acquaintances abandoned their social responsibility by allowing risky situations that endangered others (e.g. drunkenness) to develop.
Although going to the police is always an option for an accuser, quite often an accuser simply wants to avoid the burden of reliving the experience by having the accused removed from campus. This becomes a matter for campus authorities, unless they choose to abdicate all forms of campus resolution of disputes to the criminal justice system.
One of the greatest challenges to resolving cases of sexual assault was to establish the burden of proof.
My college’s honor code required that all decisions be reached by a consensus among the honor council members hearing a case. This reliance on consensus decision-making had the practical effect of establishing a burden of proof that was similar to the “clear and convincing” standard, as it was difficult to reach consensus if the proof was weak.
I question the wisdom of allowing these cases to be resolved by a single hearing officer. Consensus decision-making is difficult and time-consuming, but in my experience it comes closest to being fair to all concerned.
10
Thank you for helpfully breaking down the old and proposed rules and processes. As a criminal defense attorney for many years, what you have recounted rings true. Rape and sexual assault on campus (and off) must end everywhere; and we must continue to work to create a culture supporting (and not discouraging) the reporting of rape and sexual assault. Due process reminds and compels, however, the examine the particular facts and circumstances in the individual case with the opportunity to examine and test the evidence.
8
The problem is that universities hire inexperienced Title IX coordinators who lack the necessary experience to adjudicate cases involving sexual abuse and violence. In California, an attorney is not Constitutionally eligible to become a judicial officer until such person has practiced law for a minimum of 10 years. Moreover, sexual abuse cases are adjudicated by judicial officers who receive specialized training. Universities hire Title IX coordinators that would never be allowed to preside over a case in court. It’s no wonder that the cases are being overturned and that they lack fundamental fairness. The issue with Title IX cases is not the burden of proof; the real problem is that these cases are being adjudicated by persons who lack the necessary experience and training to adequately manage Title IX cases.
16
Another one of those pieces arguing that "I am a good person, therefore my support for this horrible policy means it is actually not so bad."
Does anyone still buy that? Not me.
7
We seem to have read different articles, as this one supported its position with sound reasoning based on real world experience, concrete examples of deep systemic flaws in the current system, and reference to Circuit Court decisions critical of the current process.
You’re free to ignore the weight of all of that and draw a different conclusion, but it’s a bit delusional to pretend this article contained nothing more than an appeal based on the author’s character.
1
@Lars Maischak
Brilliant response. Not repeated enough. Gymnasts are great people but not smart in reporting rape to a sports federation instead of law enforcement.
@Lars Maischak Thank god someone else read this piece....I mean, someone who is aware of reality is a gem to find. Especially while I'm busy using my favorite negative coping device: cynically trolling for hate-mongers who get rewarded for abusing the freedom of the online press.
Aloha,
What makes zero sense to me is that possible CRIMINAL CONDUCT comes under the Dept. of Education. WHY should anyone - student or not - who is accused of a criminal act be subject to any possible sanction from Betsy DeVos or any other Education Secretary? Makes ZERO sense to me, ladies and gentlemen.
23
Assuming your ‘why’ question isn’t rhetorical, here’s my $.02: because, as a practical matter, if the victim doesn’t press charges and follow through with testimony, there *is* no criminal case. In the absence of that, having at least some kind of process with real social repercussions for all parties (justice and safety for a victim, expulsion and a permanent record for a perpetrator) is far better than nothing, and in some cases possibly better for everyone and for society.
1
This is all starting to backfire. Males are just quietly excluding females from business trips , mentoring opportunities and social activities. Better than being accused of wrong doing and you are guilty until proven innocent
37
@Patrick I was attacked by a female student who then ‘pulled out’ and left. If that had happened today I would be the ‘guilty party’. The assumption of male being ‘dominant’ is not valid; how would one prove being attacked? The DNA ‘evidence’ would ‘point’ to the male. So BEST to eliminate the risk by eliminating engagement. VP Pence ‘may’ be right.
7
I’m incredibly skeptical that any of that is known by anything other than anecdotes and hearsay. Where is the data supporting these broad assertions?
1
Eh, they were doing that already.
1
As I understand it, "due process" is a legal concept reserved for instances where the accused's life, liberty or property is at stake. It seems to have no relevance in the setting of an educational institution, which lacks the power to deprive an accused of any of the above. And since there is so much disagreement about what kind of evidentiary standard is advisable, why don't we ask US News and World Report, as well as its rivals, to start publishing data on this question so that college applicants can add this to their list of criteria? Let transparency help young people sort themselves into schools where they are more or less likely to have their assertions credited.
4
@Melissa I am sympathetic to your position however most legal scholars and economists would consider a college degree to be a very valuable intangible "property" much like a license to practice some profession. "Reputation" is also an intangible with similar qualities of being property insofar as it allows one to earn a living.
6
@Ylem, thanks for your response. A college degree may well be valuable, but no college has the power to see to it that you must manage without one, unlike a state licensing board that decisively determines which citizens may practice a profession. And reputation is indeed valuable, yet I'm unaware of any case in which a woman has recovered damages for having to go through life with a reputation as a false accuser. Women's credibility overall seems to be chronically suspect, yet scores of millions of us obtain employment despite this, albeit at a discount of 20% in wages.
2
Getting kicked out of university can forever alter your life and property. It also takes away your liberty to pursue education.
Check out the SHIFT program begun at Colombia U which frames college sexual assault as a public health issue. Alcohol and a party culture contribute to many if not most campus assaults. Barring cases of physical violence (many cases don’t rise to that level) the program encourages responsible behavior by both parties and questions whether finding one person victim and the other perpetrator must always be the outcome, especially if both drank to excess.
13
The preponderance of evidence standard is essentially the same standard as is used in civil cases.
Sexual assault is a criminal matter, and the standard of evidence needs to be high. We shouldn't compromise this based on the type of crime committed or the identity of a class of victims.
The idea of university forums dealing with these allegations makes me glad that I went to university decades ago.
13
Right idea, wrong reason. The original Title IX was grossly unjust because it was crafted to get a certain result. A class of people was elevated to special status based on understandable sympathies. This is not justice. Now the author has another special class she wants to advocate for. How about we look at justice without thinking about the color or gender of the individuals involved in these situations. There are many things that can and should be done to promote justice. Tilting the scales for your favorite group is not one of them.
17
@Teal
Well said!
This is the key: "we cannot allow our political divisions to blind us to the fact that we are taking away students’ ability to get an education without a semblance of due process," although the realization came too late and should have prevented the previous rule in the first place.
11
I present, without comment, the following excerpt from Caitlin Flanagan's June 1, 2018 story in The Atlantic about a very real Title IX filing:
'The event in précis, as summarized by Robby Soave of Reason magazine:
“Male and female student have a drunken hookup. He wakes up, terrified she's going to file a sexual misconduct complaint, so he goes to the Title IX office and beats her to the punch. She is found guilty and suspended.”'
https://www.theatlantic.com/ideas/archive/2018/06/title-ix-is-too-easy-to-abuse/561650/
20
@Bob
I put the exact scenario to a radio panel of women whose jobs are to educate about sexual assault. I asked what does a prosecutor do? None had any idea. This area was their only job.
except that men can't do it, that's the fundamental flaw in the title IX system.
man and women are both drunk and have sex, and if there is a problem then the man is the assailant and the woman the victim, automatically, because of their genders.
its trying to use sexism to solve sexual assault... a strange logic
Look what happened to Armaan Premjee at USC. The Title IX officer expelled him even after a criminal investigation cleared him. Surveillance video and witnesses indicated there was consent. Even with these DeVos reforms, it’s not enough. When evil, bitter, vindictive feminists are given power over such important decisions, there’ll never be justice.
Only courts and the adversarial process should decide these matters.
Excellent article - thank you for writing this. I am also a liberal feminist - however suspending due process for the accused on college campuses in matters as serious as sexual assault has always seemed outrageous to me. I see nothing progressive about removing the presumption of innocence from accused students who by the way could be women, transgender etc. I didn't know about the racial impact however, which makes me even more supportive of the DeVos reforms. While I have generally been horrified by DeVos policy positions to date, it is a relief to hear something positive coming out of the current Administration.
35
The essential question is this.
In determining guilt /innocence in cases of sexual assault should we use preponderance of evidence [P] or guilt beyond reasonable doubt [G].
If we use [P]
More guilty persons will be found guilty.
More innocent persons will be falsely found guilty.
Less guilty persons will escape punishment.
If we use [G]
More guilty persons will escape punishment.
Less innocent persons will falsely be found guilty.
There is a tradeoff.
Is the higher instance of falsely convicted persons using [P] acceptable.
We do not use [P] for other violent crimes and should not do it for sexual assault.
A better procedure is that every instance of sexual assault be immediately reported by the police and investigated by trained forensic investigators who can obtain physical evidence. .
Guilt /innocence should then be handled thru the judicial system.
Many cases of alleged sexual assault are of the form he said [interaction was consensual] she said [ interaction was forced i.e. rape].
Using [P] means the victim is always believed.
We might also consider banning alcohol /drugs on campuses.
End co -ed dorms and certainly co ed floors.
Have adjoining single sex male and female dorms which have common areas where males and females can meet but not have sex.
Many students away from home for the first time are ill equipped to handle their new freedom.
3
Forget the racial aspects. The present system is a logical and constitutional abomination.
First, sexual assault is a mealy mouthed way of saying rape, a very ugly crime severely punished in all cultures. The current definition put out in the "Dear Colleague" letter from the Department of Education, includes any sexual touching without explicit consent, even is welcomed. That makes any quick pat or peck or squeeze common in any marriage a sexual assault. That robs the term of any real meaning.
The kangaroo court procedures put in the same letter is a blatant violation of due process. Those procedures were so defective that the DOE wouldn't put them in a binding regulation -- it would have been struck down by any judge in the land who probably would have recommended revoking the law licenses of any attorneys involved on the grounds of incompetence.
I question if colleges should even be involved. Criminal courts can deal with rape and sexual assault. Sexual harassment can be dealt with on the civil side as well, intentional torts are not discharged in bankruptcy, making the judgement with interest recoverable years later.
18
Can I ask - how common is it that someone is falsely accused of sexual assault? My understanding is that it is an exceedingly rare occurrence. This doesn’t mean the process shouldn’t be fair, but the importance of this argument changes considerably if these cases just aren’t that common. A colleague of mine at an Ivy League school was sexually harassed by another professor. Among the evidence, there were many disturbing incriminating emails documenting the harassment and it was still very difficult for her to convince a jury, So I’m wondering, how often does a false accusation ever go very far?
6
Baldwin@ https://en.wikipedia.org/wiki/False_accusation_of_rape Between 2 and ten percent are "unfounded" according to the FBI.
2
@Uncommon Wisdom But well over 40 percent cannot be determined true or false. So over 50 percent could be false. No one knows.
10
@Baldwin It only takes a handful for it to be a problem.
Additionally we shouldn't handwave away the fact that
"while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process"
That sounds to me like some serious bias that ought to be addressed.
1
Betsy DeVos's document of proposed revisions for Title IX enforcement states that sexual assault and sexual harassment will be "collectively referred to herein as sexual harassment."
Why everyone continues to conflate these two things is beyond me. Lumping sexual assault together with sexual harassment suggests they are on some sort of continuum. They are not.
Sexual harassment is a form of bullying, and can be handled well by administrators, faculty and staff, or even faculty/student committees, so long as institutions establish clear codes of conduct with consequences spelled out for those who violate them. Sexual assault, on the other hand, is not about bullying, but about violence. To be fair to both victims and the accused requires involving the police and lawyers.
So long as we let sexual assault cases be handled by schools, we're letting amateurs do what should be done by police, lawyers, judges and juries.
29
.
When you cast a legal net ...are you really concerned about how many black fish or white fish you catch?
This is not a racial issue -- it's a due process and preponderance of evidence issue.
And I'd add that everyone needs to learn impulse control and to ask for consent.
5
@avoice4US It is a racial issue when you are more likely to cast the net when you see black fish!
It is also a due process issue, but it's no surprise that in a racist society many white females will use the machinery of said society to levy accusations against black men-the ultimate racial other.
1
An excellent argument for a position I would have never considered. Well done.
10
What a shame that the author had to invoke racial disparities to get liberal buy-in to this reform. And I say that as a liberal.
53
@Brian
Excellent point. I was raised to always substitute another group name and listen how it sounds before making any statements that involve groups of people,
4
I tried to raise these exact same concerns when I was renewing my ACLU membership. The ACLU has chosen to challenge DeVoss' reforms by disregarding their long insistence that due process is the cornerstone of the principle of justice under the law.
The disproportionate number of black men faced with these charges here at the University of Wisconsin strongly suggests that there is a racial component to these charges.
Unless , of course, the left wishes to go down the road of suggesting that black men are more predisposed to committing crimes of sexual violence.
18
Kudos, Prof. Bazelon. The Obama "Dear Colleague" letter went too far in undermining principles of due process. We should not be too quick to throw out improvements just because we dislike the person heading the Dept. of Education.
8
I hope President Obama and former Sec of Education Arne Duncan are reading this article and these comments because they "messed up big time" when they implemented those "jacked up" Title IX rules. Turn sex crimes over to police. Let HR or Student Affairs Departments deal with harassment. What is sad is that female employees are using Title IX as a tool against male supervisors too because they know that the university process and low preponderance of evidence standard stack the deck in their favor.
15
We encourage and revel in this culture of Tinder and frat parties, of easy and drunken hookups, of inconsequential sex with a visit the morning after to the university health clinic to erase what happened the night before, and we want to fix all that with a judicial-system-lite?
Wake up. Start with education: education of the effects of alcohol, education of the toxicity of certain social norms, education of actions and consequences, education of reduction of risk, education of consent, education of respect.
Education *is* the mission of a university, no? Not sports camp for the major leagues, not alternative to the judicial system.
Alas, we lost the moral and educational compass a long time ago.
23
This strikes me as a terrible take, and I'm disappointed that the Times would run with it. The adjudication process at colleges is not a criminal one; it never results in jail time and rarely involves severe punishment. The number of college men who are ever expelled--even after being found guilty of sexual misconduct--is vanishingly small. Perhaps this author's case really is an innocent victim who was falsely accused by multiple women simultaneously, but the odds would suggest otherwise.
It seems telling to me that we've moved in the last 20 years from impunity for perpetrators to giving them a slap on the wrist, and people wonder "have we gone too far?" When you're accustomed to privilege, equality feels like oppression.
12
@ALH It is not "equality". It is merely shifting the privilege from one group to another.
1
@ALH, the “odds would suggest otherwise” is not a legal standard I would care to live under.
Why bring race into this at all? An error-prone system of punishment is bad whether or not it disproportionately harms one race. If all races were equally unfairly harmed, that would still be wrong and require fixing.
31
@Ilya Shlyakhter How can you say why bring race in it? Race is already in it. I agree that due process is important for everyone. The problem is that when we move away from due process that makes it much easier for biased students , professors, and administrators to induge their biases.
And that's what the data is showing. That is why race is mentioned. It's the data.
The cherry-picked "stories" offered give an unrealistic view of the actual majority of sexual attacks mostly on women.
Most young men going to a college party have no concept of being sexually assaulted, most young women have to have that reality in the back of their minds.
I grew up in the era of "No meant no," not the starting negotiation point. Furthermore, in many cases it doesn't even get to the point of a woman making that statement.
While some young women make false claims of sexual attacks, most are justified, yet rationalized by the woman being in a location that normalized exploitation.
The idea of watering down the variety of review systems is absurd, but then DeVos can look to the stats for her for-profit online schools that have a very low number of rapes on their electronic CD campuses.
4
"Only about 2% of all rape and related sex charges are determined to be false, the same percentage as for other felonies (FBI). So while they do happen, and they are very problematic when they do, people claim that allegations are false far more frequently than they are and far more frequently than for other crimes. Put another way, we are much more likely to disbelieve a woman if she says she was raped than if she says she was robbed, but for no good reason." cf: https://web.stanford.edu/group/maan/cgi-bin/?page_id=297 ("Myths about false accusations").
That same piece notes that only about 40% of rapes ever get reported to the police. So whether it is DeVos or someone else, the system is in need of repair, and there is good reason to question how universities handle these cases (not to mention concerns about what might happen to reporting when women are forced to deal more directly with law enforcement).
As Prof. Bazelon notes, the idea that racial bias is built into existing punishments is hardly a shock--it is pervasive within the criminal justice system.
I also hope that the forthcoming open comment period will lead to some sensible and necessarily bipartisan actions. This is but one of several arenas within our criminal justice system that is in serious need of reform.
6
@JSK Being "sensible" starts with being honest. The "unfounded" claim for rape ranges from 2% to 10% You would never support a justice system that falsely convicts 10% of defendants charged with rape. Let this sink in: one in ten rapes are based on an "unfounded" claim.
11
@Uncommon Wisdom
@Uncommon Wisdom
No one is advocating for a system with a 10% false conviction rate. That number is potentially just as distorted as what you claim for the 2%.
I've seen reports of the higher numbers. This gets into notions of "unfounded" vs "false": https://www.psychologytoday.com/us/blog/finding-new-home/201810/rape-allegations .
That does not change the idea that universities should not be handling adjudication for these situations. They should be handled within the criminal justice system.
The racial skews remain a serious problem: http://www.law.umich.edu/special/exoneration/Documents/Race_and_Wrongful_Convictions.pdf ("Race and Wrongful Convictions," 7 March 2017) The idea is to improve the judicial process for all involved.
1
Uncommon Wisdom, you’re making a mighty big leap by conflating 2-10% of reports with 10% of rape convictions and 10% of all rapes. I have never seen a 10% used as the figure for false rape complaints - it’s usually estimated at 2-5%, or about the same as other crimes - but your argument fails to acknowledge that a/ rape is a massively under-reported crime, in part because women (rightly) feel that the process is stacked against them and b/ it is also extremely difficult to secure rape prosecutions if the jury has any doubt as to whether there was consent. Most rapes do not happen in a dark alley wth a stranger. And many rapists take advantage of beliefs like yours to get off scot free.
It's a pity that Ms Bazelon has to justify doing the right thing by rationalizing it for the wrong reasons. It seems to me that she sets "justice" on its head by invoking an extra-judicial contexts to make it work. Clear up racial or gender discrimination, by all means, but don't embed its mirror opposite in the process. The issue is not the race of the accused (in sex); it's the way in which an accusation is processed. One might ask whether a racialized student wants to be judged "found innocent," but with an asterisk indicating By a politicized adjudicator.
12
If a man is convicted of sexual assault, he should be punished and expulsion from school is certainly reasonable, in addition to criminal penalties. If he has not been convicted of sexual assault, the school has no business doing punishing him for that.
This has been the way of our criminal justice system since the beginning. Before independence it was part of English jurisprudence, as it still is.
6
I'm also a Democrat and a feminist and I think the reforms DeVoss is proposing strike a good balance in making Title IX more fair. The situation as it was is completely unsustainable.
16
I sat on a college disciplinary board for three years before resigning as I could no longer participate in a Title IX process with so few protections for the accused (in the cases I worked on, the accused were always male). We were told that if the woman kept her story straight, we must believe her.
With one exception, when two women who did not know each other came forward with similar stories about the same man, there was no way to fairly judge what had happened. In most of the cases, both the accuser and the accused had been drinking, they had sexual relations which he thought were consensual, and afterwards (sometimes many months afterwards), the woman reported that it had not been consensual. That is why I resigned, but in the back of my mind I remember thinking that a disproportionately high number of the accused had stereotypically black names. We were not told the race of those we were asked to judge, but I wonder, in retrospect, whether I was not only participating in an unjust but also in a racist process.
43
I have a daughter and two sons. For many years I have advocated for the position of ...ignore the university. If any thing happens, go straight to the police. Minimally trained; conflicted investigators are in no position to bring a conclusion to any accusation. I think lawyers will have the ability to bring a stronger case than any on-campus staff. Why schools ever got a say or an involvement in a potentially crime, is beyond me.
36
Some people are confused, thinking that if a college shouldn't use the preponderance of the evidence standard, the only alternative is to use beyond a reasonable doubt, as in criminal trials.
That is not correct. There's an intermediate standard called the "clear and convincing evidence" standard. Here's the definition, from the Wikipedia article, "Burden of Proof." This seems the most logical standard of proof for campus proceeding, and many schools already use it:
"Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted."
8
Thank you Lara Bazelon! We should be able to find a way to address the long-standing issues of sexual assault on college campuses while protecting the rights of the accusers and the accused. As a feminist and a physician, we do not do young people any favors by not teaching them to speak up and get out of sexual situations where they feel uncomfortable. Young men (or women sometimes) should not be presumed automatically guilty as was more prone to happen under the current set of standards. If a sexual assault has occurred, that is a criminal matter and should be handled by the legal system and not a college panel. Finally, when substances are involved, the circumstances at the time and in retrospect can be very unclear and difficult to sort out for both participants. Prevention and education on consent should be much more of a focus. I do not agree with Betsy Devos on much (including some of her proposals on this matter) but do agree these rules need to be modified and encourage all of us to take full advantage of the public comment period.
16
Why do the college bureaucrats should do police investigations?
13
@alecs
Why not ask Obama? Or is that not polite.
As someone who has been falsely accused of domestic violence - to gain legal advantage during a divorce- I’m intensely interested in maintaining due process during emotionally trying times.
Women do lie and they also tell the truth, just like everyone else.
83
Victims lie. So do perpetrators.
1
When are we going to see "REAL" reform and strictly enforce a statutes of limitations of 24 hours to report the rape? If a rape truly occurred that would be indeed unfortunate, but she owes it to herself, other women and justice for all involved to come forward while evidence can be recovered to either prove or disprove rape. Anything less is short-sighted to the point of being a silly "he said she said" and women make infinitely more sympathetic figures. If a woman is tragically raped, that's unfortunate, but it is also unfortunate for her to take a decade or two before coming out and possibly subjecting untold dozens of other women to be preyed upon by the same predator. Conversely, there's nothing tangentially appropriate or fair about a long suppression rape allegation with zero evidence uprooting an innocent man's life. There's much improvement that can be done when the fate of one's life hangs in the balance, but timely reporting is paramount for true justice.
5
Not sure what,”tragically raped,” means. As that opposed to other kinds of rape? As for your 24 hour statute of report limitation, what about victims who can’t get away to report or who fear injury or death?
5
@Catherine Green Tragically raped means just that - tragically. As for the statute of limitations...I suppose it can be broadened a bit, but certainly not wide enough to eliminate recovery of DNA, signs of struggle, etc. The system will not be perfect, everyone will not be made happy, but heck...no evidence is just plain silly when a persons reputation, livelihood and destiny are hanging in the balance.
1
Ms Bazelon has written an insightful editorial about the dynamics of race and sex on college campuses. It also speaks to a broader set of concerns about race that the #metoo movement has yet to adequately address. The fearful fantasy of the sexually aggressive black male has its roots in America’s darkest chapters of racist terror, but it continues to inform our present as well. When we say without qualification, “I believe her,” there will likely be times when this belief corroborates that old racist fantasy.
18
I'm in favor of having the police investigate any and all complaints of sexual assault, sexual battery, etc. As with the ongoing scandal within the Catholic Church, I just don't think that colleges and universities should be entrusted to conduct investigations and adjudicate these issues because they have an inherent conflict of interest. That said, we have a long way to go before we can expect law enforcement and prosecutors to satisfactorily perform their duty without bias.
27
This is a powerful argument in favor of the changes. They seem to be replacing what can be egregiously unfair with something closer to fair.
Thank you for the work you are doing, for writing this piece, and for being willing to face the flack you will undoubtedly face.
25
There are many problems with the argument presented here. First, attending college, even a state u. on federal loan is not in any way a constitutional right. Thus the Due Process argument is model, but an improper standard. ... Yes, the first reform is highly flawed, but the DeVos roboot looks equally biased, pro-accused and pro-college and still leaving the alleging person with not just the risk of an assaulter going unpunished, but the choice of changing schools or having the accused around for years. ... Finally, schools have a clear alternative to expulsion. Just as they control admissions, they can refuse to register a student for coming semesters. Attendance is a privilege. Where I worked 35 years there has been a policy for decades that when a complaint has been filed the employees will be separated even if neither is terminated. ... Few colleges today have an honor system, but that does not justify extra-judicial inaction when a felony is alleged.
11
Allfolks Equal: You are exactly correct. Many people throw around these legal terms, such as "due process," without much knowledge of their legal definition. Without going into a lengthy explanation, I suggest that those applauding De Vos' proposal are beguiled by hearing that men will get "more due process." However, the amount of due process to which one is entitled is based on the potential injury. So, someone who is facing the death sentence is entitled to more due process than someone who is only getting kicked out of a college that they have no inherent right to attend. Or, as Allfolks suggested, someone who is interviewing for a job, like Kavanaugh, when he already has a. very highly paid, cushy job.
7
As an attorney who has practiced for 24 years, let me say that you both are thoroughly wrong. The "amount" of due process is not changed by the magnitude of the crime. In ALL criminal cases, from murder down to a stop sign ticket, the government must prove the elements of the case beyond a reasonable doubt. Period. As for the idea that men (because of course that's who we're talking about) are entitled to minimal or no due process because, hey, they're only being expelled from college, no. That's not how it works either, at least if the school is subject to government jurisdiction. Furthermore, the kangaroo courts you favor are fundamentally unfair,amd you are vastly underestimating the destruction of a man's life that results from being expelled from college based on the denial of even the most minimal standards of due process. People who don't understand the lack of fairness in these kangaroo courts will naturally assume that the man was guilty based on a reasonable amount of due process that, in fact, didn't happen.
79
Agree that this is a problem but what about the lack of fairness towards victims in the courts? The fact that some states don’t process rape kits because of lack of funds tells me exactly whose side the courts are on-the rapist’s.
4
Reforming Title IX adjudication is necessary to protect not just people of color; anyone accused in a Title IX case, regardless of color, is at grave risk.
Unless you have been through such a case, as one of my sons recently was, you have no idea of how flawed is this process. Until one has direct experience, one assumes Title IXs are adjudicated with the same care, objectivity and due process that Americans expect from civil and criminal court cases.
In fact, Title IXs adjudication procedures rarely include such protective features; schools don't have the resources or expertise. Moreover, the Title IX process rarely allows guilty verdicts to be appealed or sanctions to be reduced.
Here's the clincher: Civil courts are reluctant to review what they consider "private proceedings" of colleges/universities. As a result, academic administrations find it safer to convict than to acquit, no matter the evidence. Why? Because, while a conviction cannot be appealed, an acquittal would leave the institution open to accusations of "male bias" and the cutoff of US Department of Education funding.
I have been a liberal Democratic voter for over 40 years. But, I know that DeVoss's Title IX reforms are essential for due process for everyone. Knee-jerk, uninformed opposition to the reforms merely endorses a highly flawed process that puts individuals of all races at risk.
118
The solution is amazingly simple. Men need to keep their pants on. Period. There is no need to put rape victims on trial simply because so many men have self-control problems.
13
I would just say that it’s a dual responsibility. Regardless of gender, one needs to use your voice if things are not wanted. If that doesn’t work add force. Leaving it up to mind reading can get one into trouble. And To just blame men for “ not keeping their pants on” is
no different than saying “she asked for it by dressing like that”.
16
Has it ever crossed your mind that women do not, in fact, always tell the truth?
8
Yes, sexual assault is a crime that can (and should!) be reported to the police. But there are reasons for colleges to conduct their own investigation. I'm supportive of that process having due process, but it's also something totally different than legal justice.
Firstly, even if someone didn't break a law, they may have broken a college's code of conduct. Perhaps the state's legal definition of rape was not met, but the college's definition of sexual assault/harassment was (assuming there's enough evidence). The college is then free to take disciplinary measures against the student, same as if they violated an academic portion of the code of conduct. Cheating on an exam isn't a crime, but a college can still punish you for it according to their honor code violations process.
Secondly, the process can be gentler on both parties. If someone was assaulted but doesn't want to go to the police (he said she said, doesn't want the stress but still wants the issue addressed), a college process can confront the accused in a low stakes way. Essentially, it forces the accused to reckon with the accusations, and can also result in lighter punishments. Yes, terrible things can happen to the accused. But there's also processes focused more on learning, which for first offenses, assign writing projects or awareness trainings. The accuser gets the closure of knowing the accused is aware of the harm they caused, and the accused hopefully learns something and walks away a better person.
12
Thanks for acknowledging that terrible things can happen to the accused. Please reflect on that fact a little longer before you so casually dismiss it
I am also a left of center, progressive, feminist Democrat. And while it might feel creepy making common cause with Secretary DeVos, I find her recommendations to be a desperately needed corrective to a period in which we have allowed our understandable zeal to give women victims a voice to morph into an erosion of basic aspects of due process, evidence, and the presumption of innocence.
We must provide safe spaces and due process for women who too often have been dismissed when bringing sexual assault to light.
But due process and the presumption of innocence should be non-negotiable, ESPECIALLY when the alleged offenders are viewed as having committed an offense deemed especially noxious by society.
89
Due process is vital in criminal court where your freedom and even your life are at stake. It simply become a cover for reprehensible behavior in college tribunals. As traumatic as expulsion from college might be, it is not a death sentence and is a only blip in the male perpetrators life compared to the severe damage done to women who’ve been raped.
2
@From Where I Sit
Sacred Heart University student Nikki Yovino accused two male athletes of rape. Both athletes lost their scholarships and were forced out of school. Yovino later admitted she lied. Did someone say women never lie? The charges against the men were dropped but they were/are unable to resume their education.
Yovino was charged with filing a false police report. She received a one year sentence and rolled her eyes repeatedly as though bored when her sentence was handed down. After her sentence is served, she can continue her life undisturbed by the destruction of two men's lives that she caused by lying. So women aren't the only ones who suffer severe damages in these cases. And if they lie about sexual assault, they create damage in the lives of other people.
19
@Horace Dewey. Gee, don't break a sweat. Why not give DeVos honest credit for taking on this important and controversial issue, without the pious virtue signalling? She was courageous while your side created the problem.
1
The issue, to me has s not one of color, but the fact that a serious accusation like rape, is handled in a university hearing, without the proper rules of a court of law. In other words, rape allegations should be treated as a potential crime, and tried in a court, with proper attorneys and juries. While this system is not perfect, it is infinitely more fair to both the accuser and accused, than a university trial, which fails to meet many of the criteria of judicial fairness.
60
Crimes should be investigated by the police and prosecuted by the DA, full stop. The idea that an educational institution has a role to play in deciding who is guilty or innocent is just absurd.
111
Thanks to Lara Bazelon for keeping her head when all about her were losing theirs.
83
Thank you! Thank you! Due Process for all.
50
Right now, this is based on what would seem to be tenuous legislative support. Title IX says that the U.S. Government shouldn't finance universities that discriminate on the basis of sex, and a judge has said that a sexual offense by a person can be evidence that the university as an institution discriminates on the basis of sex, if the offense took place on a university campus.
Evidently, this ruling applies to all victims, so the issue for the university is not that it actually discriminates by the victim's sex, but that "sex" is part of the misconduct that occurred on campus.
What seems to be needed is a clearer statute. First, Congress should establish the facts about the relative likelihood of similar persons suffering sexual offenses on university campuses compared with locations where they would live and work otherwise.
With this information finally available, Congress should evaluate the need for a statute that requires universities (but not business firms, charitable organizations, private households, or government agencies) to eradicate sexual misconduct or lose USG funding.
3
I wonder if Ms Bazelon would have been so concerned about the injustice visited upon males if more of the allegations were against white males?
29
@Cranston snord I had the same reaction as you. The tone of this article implies that stacking the odds against males accused of sexual abuse is problematic only because men of color are being charged with assault. White men don’t deserve the same protection?
13
She would feel very different. She would welcome their demise with arms wide open.
1
Honest multiple choice question: do people think
A) more men are wrongly accused,
B) more underrepresented minority men are falsely accused, or
C) more women assaulted, have no legal recourse, leave school and maybe even lose their way in life?
7
@Metastasis
The answer is that all three are true. The question is the proper balance between these competing interests. Since we lack perfect knowledge, the proper question is how do we want to err: in favor of the accused (knowing that some guilty will go free) or in favor the accuser (knowing that some innocent people will be wrongly found liable)? Perfection is not an option.
16
@Schneiderman
We are not talking about a criminal trial. The worst penalty is being expelled from college. Does that give greater weight to allowing a potential rapist to continue their mayhem on campus?
Yes, some innocents will be expelled. But, statistically, most accusers are telling the truth.
2
Being falsely accused of a crime and expelled from college is also a traumatic experience. No one should have to endure that without due process because “most” accusers are telling the truth.
3
For a start, can these changes to these Title IX regulations NOT be referred to as "DeVos reforms". It introduces, overtly or subliminally, a bias (typically against) the substance of the reforms, for which Ms. Bazelon makes a compelling case. Improvements to legislation that further enhances fairness and "justice" should be sought, no matter the source or instigator.
10
Thank you for writing this Ms. Bazelon
26
I'm dubious about women getting justice in either the university forums or with the police. Thousands of untested rape kits have been stashed in in police labs--an estimated 6,500 in the State of Washington, 17,000 in New York, etc. In many locales, the police have destroyed the rape kits rather than test them.
Issues of racial injustice certainly overlap with issues of injustice to women. As a society we must deal with both, and not pit one group against the other.
301
Ah, the liberal equivalent of “whataboutism.”
Yes, it is incomprehensible rape kits are not tested. Discrimination against blacks is unacceptable. Rape is abhorrent, and restricts women’s freedoms. But the destruction of the deeply-rooted, fundamental workings of American substantive and procedural due process at our universities (under government threat) is just as bad.
Whether accusers lie in only 3% of cases or 8%, depending on the study, we can either opt for a system in which accusers are believed 100% of the time, or each case is determined on its merits—after due discovery and a fair hearing which must include the right to cross-examine the accuser, who must also bear the burden of proof.
Or, we could agree at least 5 of every hundred accused are falsely accused, and arbitrarily find against 95 and absolve 5.
Yes, being the accuser is a burden. And, no, the system
does not assure the accuser will “get justice”. But how many innocent people are freed after doing a couple of decades in prison for rapes or murders they did not commit?
And why are they freed? Often because a court reopened the case because it found that due process was lacking in obtaining the conviction and had everyone involved done their job the person would not have been convicted. In this regard, “justice” is very much the process.
The fact sexual battery is a problem is not an excuse to cut corners. I read complaints that Trump violates our norms. American due process is a cherished norm.
97
@Martha Shelley
>As a society we must deal with both, and not pit one group against the other.
What does this mean, specifically, in terms of process and regulations? Because this kind of platitude is completely unhelpful when it comes to actually determining the guidelines for assault investigations.
24
@Martha Shelley
This amounts to an ad hominem attack without specific reference to the data upon which you base your statements. It's also a type of deflection: the current state of Title IX investigation has no direct bearing on whether rape kits are tested or destroyed by the police. Both are terrible things, but they aren't the same thing. Allegations of crimes should be investigated by law enforcement professionals, not left to the ministrations of untrained practitioners of private law. If rape kits are being improperly handled in any way, that's a separate issue which also must be addressed, perhaps by first asking why rape kits are collected by the police, and not the medical examiner.
25
This opinion seems disingenuous or naïve (or perhaps it is deeply disguised sarcasm). Can the author possibly believe that Betsy DeVos is enacting these Title IX Reforms to help men of color avert false claims of sexual assault? And, even if it were true—which I do not believe it is—Betsy DeVos has otherwise done so much damage to men of color that she cannot be forgiven for those policies.
16
@Jim
What damage has she done to men of color, Jim?
18
@Joe Paper
Pay better attention. Her extraordinary assault on public education and investment in school choice and faith based schooling has disenfranchised a whole generation of kids of color.
12
@Joe Paper
(a) Supporting private, for-profit, colleges who encourage students to acquire massive debt, (b) jacking up the interest rates on student loans and supporting the large banks over students best interests, and (c) separate schools for the wealthy and the rest the population are three examples which come rapidly to mind.
2
Sexual assault by anyone, anywhere is a criminal offense and that should be handled by law enforcers like the police. No playing favorites with human lives.
30
@F. Ahmed, but what is the definition of "sexual assault"? It is intrinsically vague and it appears to be used in widely different ways. Every time I read it I wonder exactly what it means this time.
2
@F. Ahmed Federal law requires colleges and universities to implement federal protections against sex discrimination. This is a parallel process to the criminal justice system. The two are not mutually exclusive.
1
Beware of those who claim to be liberal and feminist, especially whilst supporting conservative right wing and wealth backed propositions, I always say.
20
I always say pay attention to the message, not the messenger.
40
agreed. tell me something I haven’t heard though. That would be refreshing.
1
This is also an issue with the #metoo movement, which I strongly support. The Obama admin made these changes for the same reason woman began speaking up about sexual assault: the historical lack of protections and justice for survivors by the criminal justice system. But instead of strengthening protections for victims, they’ve weakened due process for the accused and lead us down the dangerous road of guilty until proven innocent.
The fix to this issue is not reducing due process rights for the accused but increasing due process for everyone. Just like the way to deal with a wage gap is to increase women’s pay, not decrease men’s pay.
Due process is the literal bedrock of a free society. It’s erosion is pernicious and has massive consequences to us all. If our law enforcement and criminal justice systems dont give victims of sexual assault the protection the laws demand it forces them to seek extrajudicial justice, makes the accused guilty by accusation and imperils everyone’s freedom and our way of life.
We can and must do better to protect everyone’s due process rights. Universities aren’t designed to do that. Our law enforcement and court systems are where we should direct our creativity and resources so accusers are believed and the accused get the due process they deserve. Whether you’re a victim, the accused or neither, our protection of due process is the protection of our collective freedoms. They should only be increased, not decreased as has happened.
34
@Ben
If it were a matter of quantitatively measuring amounts of due process, than what you suggest makes sense. Your analogy is one about two buckets, each of which could hold more.
And there may in fact be ways to create a process that is "more" fair to everyone, as indeed the author of the article here proposes. (I have no real opinion on the merits of her proposal.)
But what if the amount of water is fixed and more water in my due process bucket means that you, now with less water, stand a greater chance of being victimized . . .and vice versa?
We may be in precisely that situation.
We have evolved standards over centuries for a reason. Though Obama was well-intentioned, his was but the left's version of the right's "stand your ground laws:" an attempt to meddle with the fine balance of the common law without due caution. In both cases the agents of innovation claimed that they and only they stood to be victimized.
In addition to the capacity to walk in the shoes of others, what we need most in post-triumphal America, is to embrace tragedy and irony. No system will get it right all the time, and there is often no way to really know.
9
The issue to look into re. the seeming over-representation of African American men among the alleged perpetrators may have to do with the over-representation of athletes among sexual predators on campuses, especially Football athletes. There is, definitely, racism on our college campuses. But using stats that are tiny and therefore hardly conclusive is not how you make the case persuasively.
More disturbingly than anything written here is the definition of what sexual misconduct is supposed to be defined as, according to the proposed rules, which will undoubtedly will in fact dissuade many more survivors from coming forward than now. Are we willing to throw them under the bus?
5
@Maria
"But using stats that are tiny and therefore hardly conclusive is not how you make the case persuasively."
Does this also apply to the oft-quoted statistic that only 2% of rape accusations are false?
Every other time this issue came up in the NYT the reflexive response from most was the changes endorsed some sort of rape culture. Bravo to Ms. Bazelon for pointing out the unbelievable lack of due process the accused students face, All this was driven by the Obama Administration and their threats to withhold federal funds from colleges and universities. To protect themselves schools rushed to throw together processes that were poorly conceived and deliberately tilted in favor of any accuser. The accused kids were roadkill in the pursuit to protect the flow of federal dollars.
68
I don't know how Lara felt about the Kavanaugh hearings but what happened to her client is exactly what happened to Kavanaugh with 3 important exceptions. First, the Kavanaugh accusations in addition to violating due process and presumption of innocence were a violation of the principles of juvenile justice since he was 17 at the time of the accusation. Second, the Senate investigation the Democrats demanded found two men who acknowledge they were "Kavanaugh and Judge". No one seems to care. Third, no one was allowed to cross-examine Ford whose testimony was rife with conflicts of interest and perjury.
Suddenly a law professor doesn't automatically believe "the victim"? Such utter nonsense believed by otherwise intelligent people. Women don't lie? What about the Duke Lacrosse Case or the UVa case?
The DeVos reforms do not expand the rights of the accused, they provide the accused on a college campus the same rights the accused is accorded everywhere else guaranteed by our constitution. The Obama standard of "the preponderance of the evidence" never made any sense because in most campus rape cases there is no evidence.
Our legal system is 200 years old. It is not perfect but it's the best system ever devised for protecting the rights of the accused. That colleges thought they could create a parallel legal system was the height of stupidity. All they did was create a bunch of deans and charge us more tuition. They made no one happy.
Godspeed Betsy.
38
@jkemp, your notion of "exactly" is worse than fuzzy. Kavanaugh was in a JOB INTERVIEW, for heaven's sake! And his behavior in the interview was such as would have disqualified him for most jobs, but he GOT THE JOB anyway.
29
@jkemp, there is no question Ms. Bazelon and other feminist lawyers (such as Harvard Law School's Elizabeth Bartholet) have raised excellent points and, joining other Democratic voices in the wilderness such as Alan Dershowitz and Bill Maher, deserve credit for standing up for civil liberties. Especially in the increasingly shameful absence of the American Civil Liberties Union.
That said, with respect to the Kavanaugh nomination, what do you mean "no one was allowed to cross-examine Ford"? While somewhat similar, it was not a criminal or legal hearing. And so it is a bit of a stretch to say full 6th amendment rights regarding criminal defendants should really have applied. And, even so, Arizona prosecutor Rachel Mitchell provided a similar cross-examination role by asking questions and follow-up questions of Ms. Ford to try and better examine the entire context of the allegations.
6
@jkemp
The Kavanaugh accusations did nothing of the kind. The idea that Ford couldn't be cross-examined is nonsense. The subcommittee had the option of cross-examining and they chose to delegate that to a lawyer, who also had the option of cross-examining Ford. Your rife with perjury characterization is risible.
" found two men who acknowledge they were "Kavanaugh and Judge"."
For which you've presented, not surprisingly, no proof. "Preponderance of the evidence" also include the testimony of the two parties, which is, in fact, evidence.
Finally, college are no more creating a parallel legal system than an HR dept. does when it hears complains of harassment.
7
As someone who was sexually assaulted and went through the process of reporting to the Office of Institutional Equity, I can tell you that these changes will be discouraging for any survivor.
My case was an example of "he said, she said", so I didn't have any evidence, other than my voice, to prove that I was assaulted. Due to this, I didn't feel comfortable reporting my assault to the police because I knew I would never be able to prove "beyond a reasonable doubt" that my attacker had assaulted me. I did, however, find that through Title IX, I could confront my attacker and some justice could be served. I needed to prove that there was a greater than 50 percent that he had assaulted me and that's exactly what I did. My university found my attacker guilty and this helped me to heal, helped to teach him that what he did was wrong and hopefully scared him enough to never assault another woman again.
After months of this investigation, the University found my attacker guilty and his punishment was to read 2 articles on sexual assault and write a 2 page with his reflections. Although this punishment did not match the crime, I recognize that this case was not tried in a criminal court and a serious punishment would not be possible.
DeVos' proposal is protecting institutions from being sued and attackers from being held accountable, and discouraging survivors from coming forward.
Also, research places the rate of false accusations at 2-6%—the same rate as that of other crimes...
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if you had sued him in a civil suit it would be the same 50.1% preponderance of evidence standard. You had additional recourse. Just want to point that out. if you had proved your case you could have secured significant money damages. however, you would have been subjected to serious cross-examination.
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@Erica
Right. And the question is to what degree do we pass rules to protect the 2-6% from wrongly being found liable while also understanding that in "he said/ she said" cases accusers will find it more difficult to get justice. In whose favor should the scales of justice tip when perfect knowledge is not available?
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@Observer of the Zeitgeist Thank you for your input. I would like to point out that I was aware of this option and chose not to file a civil suit because the purpose of my report was not to receive money for the "damages" that my attacker caused. My goal was to prevent this from ever happening again.
By reporting to the OIE at my university I did not need the assistance of a lawyer and was able to stay on campus and not be forced to commute elsewhere, which would have resulted in the disruption of my classes.
I found this option to be the most supportive of my situation.
With DeVos' proposals, other survivors may not see reporting to OIE as an option and thus could be deterred from reporting. I know that I would have been.
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Forgive me if I am suspicious of anything Betsy Devos claims is for the benefit of anyone other than those involved in her own special projects, i.e. charter and religious schools, given her track record so far. There is a lot more to this 144-page proposal than just helping disadvantaged youths who have been wrongfully accused, as Assoc. Prof. Bazelon writes in this column. It seems to be a Trojan horse that rewrites Title IX's definition of sexual harassment, includes new guidelines for high schools, and allows religious schools to exempt themselves from Title IX oversight. I would like to hear the opinions of other legal scholars who weigh the impact of ALL of the changes. Here is the link to the proposal: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf
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Women are more at risk on college campuses and in college dormitories than they will likely ever again be in their lives. They should be told to call the police if they are ever assaulted or raped on campus and under no circumstance allow the college or university to handle the issue.
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@Rae Rape is no more prevalent on campus than off; the statistics I've seen suggest that it is less prevalent. The almost exclusive focus on campus assaults misses the higher rate of assaults perpetrated on poor women who don't have the opportunity to attend college.
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@Rae
You say
"Women are more at risk on college campuses and in college dormitories than they will likely ever again be in their lives."
Really? Ia Academia really more dangerous than the outside world?
I'd like to see your sources, if any.
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Sadly your support of this seems to focus on a racial issue rather than the core one of fairness and due process. It leaves one wondering if you would support these reforms had your practice not involved representing black students. Does it matter to you that white and Asian and Hispanic students can be unfairly accused by the Obama rules ?
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@Dady Of course it doesn't matter to her. The sad fact is, activists like Bazelon see racial discrepancy and attribute it to racism.
No one dares suggest that more black male students are committing more sexual assault than their white, Latino, or Asian peers.
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Interesting article...
To me, it leads to thoughts about the "Me Too" movement, which also seems to use "feelings" and not facts in cases where men's lives and careers have been ruined.
Not talking about Weinstein, (apparently, "everyone" in Hollywood knew about his proclivities for years); but other men who have been destroyed by women for totally unproven reasons.
The "Me Too" movement seems very similar to the failings we are told of in this article. Political correctness, and "no woman ever lies" and similar beliefs have created a monster out of what was originally a worthwhile movement.
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@RLiss — There's nothing in the MeToo movement that says feelings are more important than facts or that no woman ever lies.
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@Rliss
With all due respect it seems to me you’re falling for anti-METOO right wing propaganda more than really wrestling with what the movement represents and how best to respond to it. For me personally it prompted a lot of reflection and, ultimately, my seeking women out to whom I had made sometimes crude advances—always, I thought, with their consent—and apologizing. Rather than trash the movement because of some well-publicized excesses, why not at least try to understand the legitimate beefs that so many women have with so many men?
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I'm not surprised that there is a conflict between women and blacks in campus rape cases. Who is the bigger victim of injustice is another question - for which I don't have an answer.
Blacks are disproportionately represented among college athletes, particularly in the big revenue sports of football and basketball. Some of those athletes (of all races) feel entitled to special treatment and expect women to willingly have sex with them.
So it's not surprising that black athletes would be disproportionately charged with allegations of sexual assault (particularly when the victim is white.) Whether charges against black athletes are greater than their share of offenses is another question.
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You may be too young to remember the case of Herman Veal, a basketball player at the University of Maryland in the 1980s. A student claimed he (sexually) assaulted her at a party. The entire University of Maryland community pretty much ganged up on the woman. The basketball coach, Lefty Driesell, called the young woman to convince her to drop her "case," which was an on-campus judicial review by yes, amateurs. Herman Veal skated, and I was told by my boss at the time (I was an RA, and she was a Resident Director), that although some of the committee believed the young woman, the more forceful (male) members of the committee did not want to ruin Herman Veal's career. They believed the accuser, but they did not want to punish Herman Veal. My advice to anyone who is assaulted is to go straight to police and do NOT under any circumstances allow the campus judicial process to stand in for the legal process. A final note: it was only after Len Bias died of a drug overdose that Maryland did the right thing and fired Lefty. Apparently, interfering with an investigation of a sexual assault wasn't enough.
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@New reader This said, recall the Duke LaCross team. These reforms simply guarantee that the accused is given a chance at self-defense, and assures more transparency of the process.
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@New reader Please distinguish between university departments of safety (amateurs) and actual city police (professionals). Students who are assaulted should ALWAYS file a report (document, document, document!) with the police department of their city first and foremost. University "police," are too compromised, as are university offices of student relations, etc. Should the perpetrator be of a protected class/group (football player, wealthy law student, etc.), the entire incident will be swept under the rug, and there will be no public record of it. Also, send e-mails to multiple parties along lines of accountability. Do not trust an educational institution to police itself. They are highly biased amateurs. Help protect others by making the most public record possible of the incident. These perps usually re-offend and will end up with multiple, documented accusations of assault which become much more difficult to ignore.
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@New reader I wish the NYTimes required you to sign your letter. Your characterization of H. Veal as "skating" strikes me as a serious accusation and, as such, no one should be allowed to make anonymously.
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It's unfortunate that in order to appeal to her liberal audience, Ms. Bazelon uses racial discrimination as the main platform to dispute the current title IX overreach. Yes, the current system unfairly punishes young black men, but what doesn't? That's just one of many predictable downstream consequences of policies that are bad in and of themselves: the single-investigator inquiries, the lack of due process, the "preponderance of evidence" criterion, and (most of all) letting colleges and universities dominate a legal process they're not equipped to handle. To put it mildly, their incentives -- virtue signaling, alumni-mollifying, fund-raising, admissions-managing -- are much different from those of the courts.
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Excellent points, but the mollifying was aimed squarely at activists, the media that jumps on that bandwagon (and sometimes concocts their own stories a la UVA), the Obama administration after the Dear Colleague letter and the internal apparatus that has sprung up to support Title IX claims and investigations.
There are real issues in campuses as there are in real life. But, there kids on campuses are the same age as our fighting forces, can drive and vote, and there should not be special processes on campuses to socialize adults or to adjudicate anything other than issues of academics. The local police force is there for all else, that represent our legislated laws. The whole thing is politics run amok - which is why our courts constantly overturn these cases.
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@David
“Constantly overturn?” Without an authoritative source backing up your statement I seriously doubt it. I suspect you’re conflating the sheer noise of complaints from the right with the merits of the cases, both on campus and off. If it were truly constant I suspect we would have seen headlines to that effect.
There must be, what, thousands of cases? Tens of thousands? Last I read there were fewer than a hundred appeals of college disciplinary decisions about sexual assault in the court pipeline. My guess is that colleges and universities mostly get it right, in terms of outcome if not process, once a complaint is registered. And that’s because the rate of false reports is low (2%-6%). That courts have overturned many of the actions that have been brought before them is not surprising given the nature of the complaints. But guilty students would probably prefer to have charges and punishments begin and end on campus rather than ending up having to register as a sex offender for life. There are protections for the accused in not involving the police.
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How did we get so messed up about this? How did we imagine that due process, beyond reasonable doubt, and so on, were not essential in these most private “he said, she said” sorts of crimes? I am a far left leaning independent feminist and have found the whole thing disturbing and puzzling.
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@JK Yep. Feminist lefty here, and I'm not comfortable with the tribunals, either. It's absolutely horrible that it's so uncommon for a rape victim to see justice done via the legal system, but the answer can't be to create a different set of rules, a different 'court', so that virtually no evidence is required to secure a 'conviction'. (If 51% is the criterion, that's 'he said, she said' plus some small amount of 'evidence'.) I don't like the lack of transparency, I don't like limits on who has to or gets to 'testify'. It may be 'just' 2 false accusations of rape out of 100, but I REALLY don't like that these two men will be followed dark 'haze' of suspicion that they can never lodge an appeal against and may surface again and again during their lives.
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O.J. was acquitted of murder at a trial, the standard of proof being "beyond a reasonable doubt." He was found liable for civil damages at a different trial, the standard of proof being "preponderance of the evidence."
I'm not sure how that ought to work in the context of campus sexual assault accusations. One would want a "beyond a reasonable doubt" standard before a criminal conviction and possible imprisonment, but a university or workplace wants to promote a safe environment for all those who labor there. What should be the appropriate standard of proof in that context?
Expelling someone from a university seems like a sufficiently stigmatizing possibility that a standard higher than a mere preponderance of the evidence should be required, at least as I see it. In any case, it is sufficiently stigmatizing that due process should be afforded the accused, and due process surely requires that the accused be able to confront the witnesses against him or her, to have effective assistance of counsel, and to subpoena witnesses and other documentary or physical evidence.
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You are entitled to believe anything you want, Ms. Bazelon.
However, I know hundreds of girls and women who benefited from the program and do not agree with you - just as they didn't agree when Reagan gutted affirmative action.
You and your loved ones are welcome to try to play in the boys' game where they get all the funding. The majority of us are going to fight like hell to save Title IX and every other hard-fought gender/race equalizer.
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@njglea, could you point to the place in her op-ed where Lara Bazelon said she wanted to do away with Title IX?
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One thing we can count on, ondelette. Nothing Ms. DeVos does will help 99.9% of us.
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She is not advocating the destruction of title 1V, she advocating for a revision that applies a standard of equal rights afforded to ALL individuals under our current system of laws. Why on earth would anyone object to that? Thee is no conspiracy here.
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I have never understood why colleges or universities are involved in investigating and prosecuting criminal acts. If someone reports a sexual assault, turn the case over to the police for investigation. End of story.
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@JP Tolins "Rape is a crime, and students who report to their schools can also report to the police. However, rape and other forms of gender-based violence can make it hard to show up to class and learn, and federal antidiscrimination law recognizes that. To make sure that all students, regardless of their gender identity and expression, have equal access to education, schools are required to prevent and respond to reports of sexual violence. This isn’t a replacement for reporting to the police; it’s a parallel option for survivors based in civil rights—rather than criminal—law".
Knowyourix.org does a great job of explaining why colleges and universities are involved in investigatin and presecuting criminal acts.
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@Erica
Thank you! I'm so sick of people failing to understand this distinction.
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@JP Tolins Colleges and universities do have to decide whether or not the student who is accused should be allowed to continue to attend that institution.
For comparison, imagine a student violently beats up another student. Regardless of whether the former was found guilty in a court of criminal law, s/he should be punished by the institution--whether expelled or suspended--correct?
Further, it would take some time to get that conviction, during which time the former could continue to attend, potentially harass his/her victim, and possible complete the degree. Should that be allowed?
It seems clear to me that the institution has to take some short-term action when a student assaults another student, sexually or otherwise.
My problem is the means of doing so:
1) that the Obama-era standard was an incredibly weak standard of evidence that makes it difficult or impossible for the accused to defend themselves from a false accusation (and estimates are as high as 10% for that possibility)
2) that college campus administrators (and faculty and students) likely adjudicating are severely biased in favor of the accuser and cannot be trusted to fairly evaluate the evidence.
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Why is a pseudo criminal justice system being used - new or old - on college campuses to begin with? Sexual assault and rape of someone of any gender are crimes of violence and control, not crimes against equal opportunity. Anything that would normally go to an HR department - like being overlooked for a promotion because of gender-that makes sense to refer to title IX at the university level. But a crime of physical violence? That belongs with the criminal justice system, the real criminal justice system.
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@common sense advocate please know that women have just as many issues going through the criminal justice system - if not MORE. Are you aware of the thousands and thousands (and thousands) of rape kids that are stockpiled across this country, never even tested? We don't necessarily have more faith in that system. Its also one that be expensive and very slow to engage in. Title IX is free and may seem more responsive to directly removing the threat to a victim of assualt.
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@common sense advocate And, you do not necessarily have to be a black male to be treated unjustly under the campus justice system. Two of my son's white friends were subjected to this campus system, and I have witnessed the system's failures. Parents, remind your children that only state institutions have to follow the Constitution as it does not apply to private schools.
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@common sense advocate
Can't help but argue against that b/c the criminal justice system is so infamously stacked against Blacks. Sending these cases to people, with less actual investment in the environment that the situation happened in; could very well cause less deliberation or due process to happen.
Plus then the case becomes public record and could greatly affect the lives of the accuser or accused regardless of outcome.
Ms. Bazelon briefly mentions a procedure that is all but absent in the discourse around in college sexual assault cases: mediation. Perhaps that's because in the seven years since the Obama administration's "Dear Colleague" letter, administrators and activists have sought to vastly expand the definition of "assault" while simultaneously seeking to erase any distinction in scale or circumstance when adjudicating or punishing such cases. Under these conditions, only the maximum punishment is deemed appropriate for even the most dubious of cases: Emily Yoffe opens her 2017 essay for The Atlantic with an anecdote of a male student who's expelled after a female classmate consensually performs oral sex on him; consistent with the Ms. Bazelon's op-ed, the male student is black and his accuser is white.
Most students are likely to experience awkward, intoxicated, or unenjoyable sexual experiences during college. They might even feel pressured into doing things they're not comfortable with. Equating these experiences with violent assaults doesn't simply rob the accused of justice, it casts a pall of illegitimacy over the entire process. It's frightening that feminist activists have adopted the draconian posture of tough-on-crime conservatives when solutions like mediation could instead empower students to satisfactorily resolve many of these cases without destroying lives and reputations in the process.
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@Michael, I'm unclear how mediation would be helpful between rapist and victim?
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@Seabiscute
Where/ when did "Michael" speak about rape?
He spoke about consensual sex.
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@RLiss — The comment introduces mediation in the context of "college sexual assault cases". The second paragraph addresses bad consensual sex.
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As a feminist and progressive Dem, I appreciate your opinion. The current Sec of Education has not instilled much confidence in Americans concerned with strengthening and wisely guiding this department. So forgive the wait and see attitude on her proposal. If improving on Obama’s efforts to deal with sexual assault on campuses is sincere, I welcome it. But I look forward to this public comment period to hear - hopefully - evenhanded critiques of this proposal.
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@Michele, only extreme autocrats make it so easy for people, especially young people, to break their rules because few other ways instill fear among people as effectively .
@Michele, only extreme autocrats make it so easy for people, especially young people, to break because there is few other ways of instilling fear among people.
If it's sincere? Are you implying that DeVos, a woman, is a fan of sexual assault on campus? Or rather that she's a fan of letting those who commit sexual assault run free?
You don't have to like a quarterback to be pretty certain their objective isn't taking sacks or throwing interceptions.
let's not spend too much time worrying about this . . . the obama administration's department of education's office of civil rights' "dear colleague" letter was written without any observance of the requirements of due process or of the administrative procedures act [i point this out as someone who voted for obama twice] . . . the kangaroo-court/ussr-friendly procedures, and their manifestly unjust results, that the letter instructed colleges and universities to apply have been routinely overturned by courts . . . the problem occurs for the accused (usually young men, and not by any means all of them being young men of color) when they can't afford to sue the university and force a recalculation of justice . . . this is what happened when obama delegated to a tight group of angry radical feminists -- who were utterly clueless as to the concept of due process, and in the case of young men on college campuses, likely couldn't have cared less -- unauthorized power to threaten colleges and universities to toe the line or risk loss of federal funding . . . i'm no fan of devos and i despise trump, but this is one of the signal episodes of the failure of obama's presidency and one that must have contributed to the rise of trumpism . . .
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@Lillas Pastia
Any case of rape should be turned over to the local police.
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@GWE
Sexual assault need not entail rape. And the police have no desire to investigate cases of potential harassment. There must be a way for universities to create a safe environment for their students -- of all genders and orientations. And the methods that resulted from Obama's interventions are deeply flawed. I respect Ms. Bazelon for daring to support a positive initiative from a despicable administration.
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@Lillas Pastia, another Obama voter here (voted for him three times, if you also count the 2008 primary). And Democrat or farther to left in every election prior.
Agree this likely contributed to rise of Trumpism. Unfortunately this was not only example of insane overreach & cluelessness, in both domestic and foreign policy, that occurred during Obama's 2nd term. As shocked as everyone else at results of 2016 election, I expected the Democrats (and mainstream media) to engage in some serious soul-searching and self-reflection. Instead, it has been astonishing how trends on the Left that began during Obama's 2nd term have, if anything, seemingly accelerated.
So let's give credit to Ms. Bazelon, other feminists like Elizabeth Bartholet of Harvard Law School, & other Democrats like Alan Dershowitz & Bill Maher for standing out as voices in the wilderness.
Would also like to see Democratic Party make clear they have room for "Barbara Jordan Democrats" again (i.e., people who supported President Clinton's Bipartisan Commission on Immigration Reform, led by African-American, Democratic Congresswoman Barbara Jordan); and room for "Frank Church Democrats" again (i.e., people who supported the reforms implemented by Democratic Senator Frank Church and others in wake of Church Committee investigations into national security state abuses). Nation overdue for serious reform re continuing intelligence agency abuses & military-industrial complex overreach.
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The issue is not whether the accused is black, a "Dreamer," homeless (a homeless university student? The school should be ashamed!) or "trans." The issue is that rapes should be reported to the police, THEN to the university. The university should work closely with the police and until the charges are adjudicated by the LEGAL SYSTEM, make sure that the complainant and the accused are separated on campus. The courts can assist by granting orders of protection.
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@Anne
How do you propose the complainant and the accused be separated on campus? Full time guards? Who pays for that?
Come out and say it....the victim should leave the campus if she is so afraid or intimidated.
No. She should feel safe enough to continue her education.
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@Sue
And anyone accused should be removed from campus?
Innocent until proven guilty????
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There should be no separate system dealing with allegations of sexual assault on college campuses. All such complaints should immediately be referred to the police and the local DA. Universities have no business policing these sorts of things, and are totally incompetent when it comes to investigating them. Allegations of sexual assault that happen to reference events on a college campus should be treated no differently than allegations of sexual assault at a bar downtown. Both complainant and defendant then are subject to the same legal system as the rest of us.
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@andrew scull
Well said Andrew. I have worked in universities and have witnessed the unjust system of campus adjudication. Sometimes it has been downright cruel. I agree that any complaint of sexual assault should be turned over to the proper civil authorities.
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@andrew scull
Once again, what people who repeatedly make this comment simply do not understand is that campus adjudication processes--whether for sexual assault, theft, plagiarism, or any other infringement--are absolutely *not* intended to replace criminal proceedings. They are meant, quite simply, to determine whether school rules or policies have been violated.
Moreover, when a violent infraction has been alleged, schools have a *responsibility* to determine whether the accused student represents a danger to the campus community. After all, colleges and universities are residential communities. Proposals like yours would mean that schools would have to wait, in many cases, until long after a student had graduated to take action.
This is not to say that campus proceedings--which do in fact vary widely--can't and shouldn't be improved. But even the basic analogy you make is nonsensical: the bar downtown is entirely free to bar a patron from its premises for suspected misbehavior. So is a university. What isn't clear about this?
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@David
So, if a college student is accused of murder, the college should investigate and adjudicate this issue separately from the police and legal system? Has this EVER happened?
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One anecdote, without supporting data to suggest that it represents a trend, is not a credible argument.
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@Tamir What the author recounts would have to be a “trend” before you would have a problem with it? I think she does more than enough just by indicating why there are legitimate worries about whether the existing system is fair to people of color - since the disproportionate victimization of people of color in our justice system is a trend that has been demonstrated countless times.
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@Tamir you’re absolutely right. She’s not a very good writer. But she used that example to highlight was is a big trend. Do some more research on the topic. Ultimately, the issue isn’t about protecting victims or rapists. It’s about protecting our way of life from the erosion of due process rights. Those rights should be bolstered for both the accused and the accuser, not weakened as is currently happening. And institutions of learning shouldn’t be adjudicating them as they currently are, the justice system should.
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