Assault by the DOE

Robert Carle is a professor of theology at The King’s College, New York, NY 10004; [email protected]. He is a contributor to Society, Human Rights Review, Public Discourse, World, and Touchstone. Some of the material in this article appeared in Public Discourse, the online journal of the Witherspoon Institute of Princeton, on July 14, 2014. 

Editor's Note: This piece originally appeared in “Rape Culture on Campus?” a special section of the Spring 2015 Academic Questions (volume 28, number 1).

On September 11, 1946, while investigating corruption in the state of Michigan, circuit judge George Hartrick summoned William Oliver to his chambers and interrogated Oliver in secret. Because Oliver’s testimony contradicted the testimony of another witness that Hartrick had interviewed in secret, the judge convicted Oliver of contempt of court and sentenced him to sixty days in the county jail.

In 1948, the U.S. Supreme Court considered the constitutionality of William Oliver’s conviction. Writing for the majority, Justice Hugo Black criticized the Michigan “one-man grand jury” for giving the defendant “no chance to enjoy the benefits of counsel, no chance to prepare his defense, and no opportunity to either cross-examine other…witnesses or to summon witnesses to refute the charges against him.” According to Justice Black, “the traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet.” In the history of the United States, Justice Black was unable to find “a single instance of a criminal trial conducted in camera in any federal, state, or municipal court.” Public trials, Justice Black wrote, are “a safeguard against any attempt to employ our courts as instruments of persecution." [1]

Sexual misconduct tribunals on college campuses resemble the unjust judicial practices that Justice Black found so offensive. They are conducted in secret, by amateurs, in emotionally charged settings. In these tribunals, accused students do not have a right to legal counsel, and they do not have the right to confront and cross-examine their accusers. The accused are denied the right to remain silent, even though whatever they say in a campus hearing may be used against them in subsequent criminal proceedings.

On April 4, 2011, the Obama administration launched a campaign to vastly expand the role of these sexual misconduct tribunals. In a “Dear Colleague Letter” sent to every college and university president in the country, the U.S. Department of Education’s Office for Civil Rights (OCR) ordered colleges and universities to investigate and adjudicate students’ reports of sexual assault, even if the alleged victim decides not to have a medical exam or report the incident to the police.[2] The letter advises schools to eliminate presumption of innocence and to subject accused students to double jeopardy by allowing complainants to appeal not-guilty findings. The letter also warns colleges not “to accord due process rights to the alleged perpetrator” that would “delay the Title IX protections.”[3] Schools that do not take the steps recommended by the OCR will lose federal funding and be referred to the U.S. Department of Justice (DOJ) for litigation.

Perhaps most significantly, the letter mandated that colleges use a “preponderance of evidence” standard (50.01 percent probability of guilt) to adjudicate cases of sexual misconduct. Traditionally, colleges and universities have used a “clear and compelling” evidentiary standard (80 percent probability of guilt) in disciplinary hearings. The clear and compelling standard is an intermediate standard between the “beyond a reasonable doubt” standard (95 percent) used in criminal cases and the preponderance of evidence standard used in civil cases. The clear and compelling standard has enabled colleges to remove students from campus who were very likely to have committed grievous violations of community policies but who were not criminally prosecuted. Princeton professor of politics and international affairs John Londregan warns that under the new standard, college disciplinary hearings will, in nine out of twenty cases, “paint an indelible scarlet letter on the forehead of an innocent person.”[4]

Since 2011, the White House has issued a series of directives that reiterate the themes found in the “Dear Colleague” letter. In a May 9, 2013, letter to the president of the University of Montana, the Civil Rights Division of the DOJ defined “sexual harassment” as “unwelcome conduct of a sexual nature” and jettisoned the requirement that actions or speech have to be “offensive” according to reasonable standards and objective evidence in order to be considered harassment.[5] On April 29, 2014, the White House published a report, Not Alone, that criticizes our “adversarial, evidence gathering criminal justice model” and commends schools that appoint a single investigator to “interview the complainant and alleged perpetrator, gather any physical evidence, interview available witnesses—and then…render a finding.”[6] The single investigator resembles Michigan’s one-man grand jury in that it fuses the role of investigator, prosecutor, and judge. This spares complainants from being cross-examined, but it also places students at grave risk of not being able to defend themselves against false accusations.

Since the publication of the “Dear Colleague” letter, the number of sexual misconduct cases being tried by campus disciplinary panels has soared. Justin Dillon, a partner at Kaiser Law Firm, said, “the ‘Dear Colleague’ letter represented a sea change in the approach that colleges are taking” because the letter “scared colleges and universities about the possibility of losing federal funding if they didn’t do what the government wanted.”[7] Robert Shibley, senior vice president of the Foundation for Individual Rights in Education (FIRE), reports that prior to the “Dear Colleague” letter, he only ever received one phone call from a student who had been falsely accused of sexual assault in a college disciplinary hearing. He now receives two such calls per week.[8]

Redefining Sexual Assault

Concerned that there is an unreported rape epidemic on college campuses, the OCR is pressuring schools to inflate their numbers of reported and adjudicated sexual assaults. This creates an Orwellian world in which a low number of assaults on campus is occasion not for praise but for censure. As a result, colleges and universities are developing definitions of sexual misconduct so broad that they turn social gaffes and failed romances into violent assaults. These redefinitions trivialize the crimes that some women on college campuses endure. They lead to misallocations of college resources, and they turn virtually every male on every college campus into a sexual offender.

In 2011, Yale University reported thirteen allegations of sexual assault. All thirteen were filed under an informal complaint process in which the accused student does not have the right to cross-examine his accuser or present evidence of his innocence. None of the accusers ever went to the police or received any sort of medical exam. Under this procedure, an accuser can press charges against another student for behaving in a way that causes the accuser to worry. Yale’s guidelines make the extraordinary claim that the goal of the disciplinary process is “to achieve a resolution that is desired by the complainant.”[9] If you accept Yale’s data, you are ten times more likely to be sexually assaulted on the Yale campus than in the city of New Haven, one of the most dangerous cities in the country.[10]

Columbia University now defines assault as “any intentional sexual touching, however slight, with any object, without a person’s consent. Intentional sexual contact includes contact with the breasts, buttocks, groin, or touching another with any of these body parts, or making another person touch any of these body parts.”[11] Columbia’s policy also states that “alcohol and other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and affirmatively given.”[12] This means that consensual sex after even one drink can at a later date be interpreted as rape. Stanford, Duke, and M.I.T. have similar policies.

At Vassar College, “sexual violence may include, but is not limited to, treating the victim and other people as objects via actions and remarks, using sexual names, insisting on dressing or not dressing in a certain ways, touching in ways that make a person uncomfortable.”[13] At Yale, sexual assault “is the actual or threatened physical, sexual, verbal, emotional or economic abuse of an individual by someone with whom they [sic] have or have had an intimate relationship.”[14] The sexual assault policies at both Columbia and Yale define consent as a prior “unambiguous agreement” to each “specific touching,” whether or not consented to in the past. At the University of Michigan, “sexual violence” includes “discounting the partner’s feelings regarding sex” and “withholding sex and affection.”[15]

By defining “assault” so broadly that it includes activities like brushing up against someone in an unwelcome way, attempting to kiss someone, or behaving in a way that worries a classmate, colleges and universities, under pressure from the Obama administration, are conflating credible accusations of sexual assault with capricious accusations. Peter Wood, president of the National Association of Scholars and Academic Questions editor, writes, “A rule that potentially turns every word and every gesture into grist for a…complaint is really a writ of arbitrary power for campus administrators” who will get to selectively prosecute disfavored groups.[16] When public defender Robin Steinberg saw Columbia’s new sexual assault policy, she and her colleagues at The Bronx Defenders were horrified. “We are never sending our boys to college,” she wrote.[17]

Kangaroo Courts

On May 6, 2014, Senator Kirsten Gillibrand (D-NY) launched her campaign to increase funding for federal oversight of college campus rape tribunals by telling a gruesome story about Brown University student Lena Sclove, who had been “brutally raped” and “nearly choked to death” by Daniel Kopin, a classmate.[18] Gillibrand excoriated Brown for suspending Kopin for just one year and called for his immediate incarceration.

On June 8, 2014, in order to defend himself against such accusations, Kopin provided the Daily Beast with a full record of documents from the college disciplinary hearings.[19] These documents tell a much different narrative from that reported by Gillibrand. Sclove and Kopin knew each other well, had a sexual history together, and had a sexual encounter on August 2, 2013, that was filled with mixed signals and emotional ambivalence.

Sclove and Kopin had both transferred to Brown in January 2013 and quickly became friends. In early July 2013 they became sexually intimate. Three weeks later, Kopin told Sclove that he wanted to end their sexual relationship. On August 2, despite this decision, Kopin and Sclove began kissing at a party and both decided to go to Kopin’s apartment. Kopin says he caressed Sclove’s neck while kissing her in the street, and Sclove told him that this made her feel very uncomfortable. Nonetheless, they proceeded to Kopin’s apartment, and Sclove admits that she asked Kopin to get a condom and agreed to perform oral sex.

Kopin’s roommates—one woman and two men—entered the apartment while Sclove and Kopin were having sex. The roommates testified that Sclove did not seem frightened or disoriented. Later that night, Sclove sent Kopin a text message to ask him to retrieve her underwear, which was still on his couch. Six days later, Kopin was shocked to receive an e-mail from Sclove that read: “Dan, you raped me.” As a result of this accusation, Brown suspended Kopin for one year, which civil rights attorney Harvey Silverglate calls Brown’s “penalty for the innocent.”[20]

Kopin’s ordeal is reflected in dozens of stories of college students who are being stigmatized as rapists and expelled from school—even in cases where there is compelling exculpatory evidence. In February 2013, Vassar College expelled student Xialou “Peter” Yu, a Chinese national with a 3.8 GPA, for having sex with Mary Claire Walker, a Vassar professor’s daughter.[21] On February 19, 2012, the day after they had sex, Walker e-mailed Yu that she was sorry that she had “led him on” when she wasn’t ready for a relationship. A month later, Walker contacted Yu again to apologize for the incident and express hope that it would not affect their friendship. There were five more friendly exchanges during the next seven months. At one point, Walker invited Yu to dinner at her place. Vassar has acknowledged that all of these e-mail exchanges took place.

In February 2013—on the last day that she could press charges against Yu—Walker filed a complaint of nonconsensual sex with Vassar’s Title IX coordinator. By filing on the deadline, Walker ensured that Yu would not have any opportunity to file a counter-claim against her. Two and a half weeks later, a hearing was convened before a panel of three Vassar faculty members (Walker’s father’s colleagues). Yu was not allowed an attorney. Vassar denied Yu’s request to call his roommate and Walker’s roommates as witnesses. Walker’s friendly messages to Yu were barred from the hearing as irrelevant. Yu was found culpable and immediately expelled from Vassar. After his expulsion, Yu was rejected by five colleges. Each of these colleges cited the Formal Grievance Hearing outcome contained in Vassar College’s “Student Report” as the basis for their rejection.[22]

On December 20, 2013, Occidental College expelled student John Doe (pseud.) in a case echoing that of Peter Yu. On the evening of December 7, John Doe and Jane Doe (pseud.) had both been drinking. They danced and engaged in heavy petting in John’s dorm room. Shortly after midnight, when Jane left John’s room with her friends, she gave John her cell phone number so that they could meet later that night. When Jane arrived at her dorm room, John texted her to “come back.” Jane responded: “Okay do you have a condom.” John texted: “Yes.” Jane replied: “Good, give me two minutes.” John texted: “Knock when you’re here.”[23]

Before leaving her room, Jane texted a friend: “I’m going to have sex now.” Jane entered John’s room at approximately 1:00 a.m. She undressed, performed oral sex, and had sexual intercourse with him. When a friend knocked on John’s door to check up on Jane, Jane called out three times: “Yeah, I’m fine.” Shortly before 2:00 a.m., Jane dressed herself and returned to her room. On her way back, she texted several cheerful messages to friends with smiley faces. In the days following this sexual encounter, Jane found herself distracted and unable to concentrate in classes. At the urging of sociology professor Danielle Dirks, Jane decided to file a complaint against John Doe for nonconsensual sex. Dirks told Jane that John Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on a [sports] team, and was from a good family.”[24]

Ending the Madness

It is puzzling that colleges and universities are virtually the only places in America that forbid the basic fact-finding procedural safeguards that any decent society should provide its members. When gross violations of due process occur in a workplace or in a government agency, they are in opposition to established procedures and they engulf the institution in scandal. The American experiment in human liberty depends on our willingness to transmit to future generations respect for due process and the rule of law. Colleges and universities that deny their students fair and judicious disciplinary proceedings are in no position to form the kind of virtuous, well-informed, self-governing citizens who are vital to America’s future. As Greg Lukianoff, president of FIRE, writes, “Due process and fair procedure, much like free speech, are habits of the mind that need to be taught and trained, and if we don’t cultivate them we cannot expect them to survive.”[25]

Due process is an essential component of a free society because it honestly addresses the reality of human weaknesses.[26] We are often mistaken in what we remember or believe, and we can convince ourselves that falsities are true to harm those we dislike. In emotionally charged situations, we tend to rush to judgment. In order to ensure a fair trial, our justice system enshrines principles of presumption of innocence, reasonable standards of proof, and the freedom to defend oneself appropriately. In our courts, the accused and accuser have the right to impartial judges and a jury of peers who weigh the competing claims of prosecutors and defense attorneys. Over many centuries, we have learned that juries are most equipped to sort out truth from falsehood if the accused is in the same room as the accuser and if lawyers are able to ask probing questions of both parties.[27]

These principles of due process are vital not only for protecting the innocent but for correctly identifying the guilty. Therefore, it is imperative that colleges and universities resist federal mandates that would replace due process with a system based upon arbitrary power and the intuitions of amateurs. Instead, schools should adopt these more sensible reforms proposed by such organizations as the National Association of Scholars, the Foundation for Individual Rights in Education, and the American Association of University Professors:

• Colleges should abandon protean, imprecise definitions of sexual assault and harassment. Instead, definitions of sexual assault on college campuses should mirror definitions of sexual assault in criminal law, and colleges should adopt the definition of sexual harassment in Davis v. Monroe County Board of Education. Here, the Supreme Court defines sexual harassment as targeted, discriminatory conduct that is “so severe, pervasive, and objectively offensive…that the victims are effectively denied equal access to an institution’s resources and opportunities.”[28] 
• Colleges should stop advertising themselves as victim-friendly alternatives to the criminal justice system. Colleges should support victims of violent crimes as they seek justice in and through the criminal justice system.
• When colleges must adjudicate cases of sexual misconduct, they should observe the requirements of due process in college disciplinary hearings by applying the traditional clear and compelling evidentiary standard. Colleges should ensure the right of the accused to make an adequate defense, including the right to counsel and the right to call witnesses.
• Colleges should set a reasonable (sixty-day) statute of limitations on bringing sexual misconduct charges. This will ensure that memories and evidence are fresh.
• Colleges should punish forcefully those who violate community standards, by expulsion if necessary.

A Greater Role for Law Enforcement

On February 28, 2014, the Rape, Abuse & Incest National Network (RAINN) sent a sixteen-page memo to the White House Task Force to Protect Students from Sexual Assault to offer recommendations on how to address the problem of sexual assault on college campuses.[29] RAINN is the nation’s largest anti-sexual violence organization. Its letter infuriated many victims’ rights groups by calling into question the term “rape culture,” which pins the blame for rape on “particular segments of the student population,” such as student athletes and traditionally masculine men.[30] RAINN argues that these traits are common in “many millions of law-abiding Americans.”[31] “[R]esearch supports the fact that more than 90% of college-age males do not, and are unlikely to ever, rape,” the letter states, and RAINN cites research from forensic consultant David Lisak to back up its claims.[32] “Lisak estimates that three percent of college men are responsible for more than 90% of rapes.”[33] These men find colleges to be ideal hunting grounds. They are particularly likely to prey on intoxicated first-year women,[34] and they are repeat offenders, averaging six assaults each. RAINN warns that “this relatively small percentage of the population” is immune to prevention messages, and it recommends that the Obama administration deemphasize internal judicial boards and partner with law enforcement to bring these sexual predators to justice.[35]

Shifting the burden of adjudicating campus assaults from college administrators to courts and law enforcement would certainly make colleges safer places for men and women alike. The current system of campus rape tribunals squanders university resources and brands as rapists students who are innocent of criminal assault. It also betrays victims of sexual assault by not incarcerating criminal offenders. Because college rape tribunals have become substitutes for criminal prosecutions, college students report rape to the police at much lower rates than the general public.[36] College rapists who are not criminally prosecuted are free to strike elsewhere if and when they are expelled from college. For example, Jesse Matthew Jr., who was arrested in November 2014 for abducting University of Virginia student Hannah Graham, was previously charged with sexual assault in a campus disciplinary procedure that was never reported to the police.[37] The primary responsibility for investigating such violent crimes should always be law enforcement agencies, who have training in forensics and have the authority to issue warrants and subpoenas. As RAINN asks in its letter to the White House, “It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault?”[38]