Secretary Betsy DeVos recently announced that the Department of Education’s Office for Civil Rights will review the controversial Title IX guidelines on sexual assault and other forms of sexual harassment disseminated by the Obama administration. The new leadership at OCR has already made an important change in enforcement policy: no longer does it follow the 2014-2016 strategy of turning every sexual violence complaint filed by an individual into a well-publicized compliance review of the entire educational institution in question.
A spring saunter through a campus as pretty as the University of Kansas is inordinately charming—tulips, apple blossoms, amorous robins—you know, the whole glorious array. The hundreds of tiny white flags fluttering in ragged rows seemed therefore appropriate, even vaguely comforting, like a patriotic memorial or perhaps a wedding in the offing.
The flags, though, weren’t part of a nostalgic swoon or public fête. What they heralded instead was a calculated scare campaign. Written in the sidewalk in chalk was “3,192,” which was said to be “the number of sexual assault survivors on campus.” To emphasize the point, each flag was emblazoned “1 in 4” because, according to the campus Sexual Assault Prevention Education Center, “Annually 1 in 4 college women (cis) is sexually assaulted. Each flag you see represents a KU student-survivor.”
Dear Colleague Letter from the Department of Education Office of Civil Rights decreased legal protection for those accused of sexual assault on college campuses.
False accusations of rape are no joke. Just ask the Duke lacrosse team or the University of Virginia fraternity brothers who were smeared in Rolling Stone magazine. Such high-profile travesties of justice are the tip of an iceberg that has now been documented in detail by KC Johnson and Stuart Taylor, Jr.
The atmosphere on many American campuses is thick with intimidation of anyone who might dissent from a poisonous version of feminist orthodoxy. Strident accusations and demands would not have been enough, though, without widespread acquiescence in politically driven lies about sexual assault. College bureaucrats, the media, and cowardly politicians, including some very prominent Republicans, have all contributed to a culture in which simple procedural fairness is treated as though it were part of a “war on women.” This problem will not be solved with a stroke of anyone’s pen. But some significant steps can be taken very expeditiously by the Trump administration.
This panel is a great summary of the various positions on the sexual assault issue. There were two people on the right – one conservative and one sounding more libertarian – and two on the left – one representing the Administration and one representing a women’s group. Everyone played their parts perfectly.
While I recommend listening to the entire panel, here is a brief summary of the presentations with some of my own commentary.
1. The first panelist was Lara S. Kaufmann, Senior Counsel & Director of Education Policy for At-Risk Students at the National Women’s Law Center. Her presentation was a stereotypical talk on the subject by a member of a feminist interest group. Kaufman focused on how women are at risk, offering statistics and other evidence entirely devoted to showing the risk, and literally said not a word about the due process rights of people accused of sexual assault. It is as if she does not care about them.
My guess is that her presentation was not very persuasive to a Federalist Society audience. It would have been more effective if it had acknowledged and attempted to rebut the due process concerns and the charges that sexual assault statistics are often spurious. But she did neither.
I want to mention two additional developments in the sexual assault area that suggest that people are beginning to protest and push back against infringements of due process and fairness.
First, 16 members of the University of Pennsylvania Law School faculty have written an Open Letter criticizing the University’s new procedures for investigating and adjudicating complaints of sexual assault. The letter refers to the pressure placed on the University to adopt these procedures under threat of withdrawal of federal funds, but notes that the procedures undermine “many protections long deemed necessary to protect from injustice those accused of serious offenses.” The 16 faculty members comprise a politically diverse group with both liberals and conservatives significantly represented. This Open Letter builds upon the momentum of another such letter from members of the Harvard Law faculty.
Via Eugene Volokh, I came upon this article in the American Prospect by feminist advocate and retired federal judge Nancy Gertner, the author of “In Defense of Women: Memoirs of an Unrepentant Advocate.” The article, which criticizes the new Harvard sexual assault policy, is well worth reading. While it covers some of the same ground concerning the biased university policies that I discussed in prior posts, it also has a fascinating discussion of the problems with the criminal justice system as well. This is important because it is often recommended that these sexual assault cases be handled by the police and the courts.
At present, this is clearly one of the significant issues in the culture wars. My observation is that the “left” has made significant progress in recent years, spurred by the Department of Education’s actions that have led many colleges to change their standards and by significant discussion in the media about the issue. The most recent sign of the left’s progress has been the passage of the California affirmative consent statute (about which I previously blogged here and here).
Yet, it is my impression that push back against these policies has begun to grow. This has been due in part to the reports of a variety of lawsuits, some of them successful, against colleges which appear to have treated male college students without due process. But it is also due to a statement signed by 28 members of the Harvard Law faculty condemning the Harvard procedures as unfair. They wrote that:
Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.
Here our concerns include but are not limited to the following:
■ The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.
■ The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.
■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.
Harvard has inappropriately expanded the scope of forbidden conduct, including by:
■ Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.
■ Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.
Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance.
The new California statute regarding sexual assault on college campuses, which is known as the Yes Means Yes law, has received considerable attention. I thought that I would take a look at the statute and evaluate the statutory language to determine what the law actually says. I should note that I don’t teach criminal law or torts, and therefore do not have any expertise about these matters. This is a post simply by a law professor analyzing the statute.
The most important provision of the statute imposes an affirmative consent standard. Section 1(a)(1) provides that
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The most obvious question here is what affirmative consent means. Conscious and voluntary seem relatively straightforward (although there are issues), but what does affirmative mean? Does it mean verbal consent? Does it mean express consent?
The statute does not define the term and dictionary definitions are not entirely clear. In my view, one can read the language either way. Some definitions of affirmative seem to imply expressing or asserting it. Other definitions might be understood as merely requiring an action on the part of the person. (See, e.g. an affirmative duty to stop crimes in their buildings.) While I would probably read it in the latter way, the statute is not clear.