Former Education Department attorney Hans Bader is the most cogent voice for the presumptively innocent accused of sexual harassment on campus in the wake of the Education Department's April 4 directive. His latest piece explains, with irrefutable logic, why the April 4 directive's strong discouragement of cross-examination severely curtails the accused's right to a fair hearing:
Why Cross-Examination Rights Matter in Campus Sexual Harassment Cases under Title IX
As part of its broader attack on safeguards against false accusations, the federal Education Department is urging colleges to strip students and faculty of the right to cross-examine their accusers in disciplinary proceedings over alleged sexual harassment. In an April 4 letter from Assistant Secretary for Civil Rights Russlynn Ali, the Education Department said that it “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.”
Read the rest here: http://www.openmarket.org/2011/06/07/why-cross-examination-rights-matter-in-campus-sexual-harassment-cases-under-title-ix/
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13 comments:
Gender feminists "Empower" themselves off every innocent boy pleading guilty to a lessor charge so that the "gender-Raunch" klan community will leave him the f#2k alone.
Its all an "Empowerment" game for the American gender-raunch community, until enough innocent men and boys have been persecuted to the point where they say STOP!!
These campus "gender-Raunch Empowerment" courts are un-constitutional.
These gender-raunch perverts are gonna keep persecuting innocent boys until one of them takes the law into their own hands.
If A perverted American law enforcement are gonna let these campus "pervert courts" unconstitutionally operate to persecute more and more innocent boys, it will only be a matter of time until a righteous young man confronts the perverts who are persecuting him.
”These campus "gender-Raunch Empowerment" courts are un-constitutional.”
”If A perverted American law enforcement are gonna let these campus "pervert courts" unconstitutionally operate…”
The disciplinary boards established by individual colleges and universities are A) not courts of law, and B) are not under the jurisdiction of any law enforcement agencies (to be able to allow or disallow their formation, operation, nor the execution of disciplinary actions arising from the findings thereof.
As egregious as they have become, as anti-male as they are in the nature, and as outrageous as the demands placed upon them by the Department of Education are; the simply fact is that they are not “unconstitutional”.
You say that a lot, but you clearly have a very poor understanding of the US Constitution. Here’s a link to it (check Article III):
(http://www.archives.gov/exhibits/charters/print_friendly.html?page=constitution_transcript_content.html&title=The%20Constitution%20of%20the%20United%20States%3A%20A%20Transcription)
I’m fairly certain that none of the regulars here like these college tribunals nor the interference of the DOEd, but squawking about their supposed “unconstitutionality” and that law enforcement must shut them down can only serve to make this otherwise very serious and highly important site appear to be inhabited with poorly educated and ill-informed yokels. [It’s almost as bad as those times when you didn’t understand that neither the United Kingdom nor Australia were a part of the United States of America, and that American Law Enforcement simply had no possible role in any of the cases of FRA’s which occurred in either of those two countries. It was an error you repeated often, and I hope that it has finally “sunk-in” with you that they are, in fact, sovereign nations, and that American Law Enforcement cannot be to blame for what occurs in either]
Despite your singular-minded desire to try to blame LE for the entirety of the FRA issue, what is happening WRT these college tribunals and the DOEd’s interference is an out-and-out effort to circumvent justice by doing a blatant end-around the LE and the whole of the Criminal Justice System. By employing their own disciplinary boards (which students contractually obligate themselves to), they have found a way to charge, try, convict, and punish young men WITHOUT having to risk the possibility that a police investigation would clear the innocent, that any rules of evidence and Due Process would have to be followed, that a jury of a man’s peers might well recognize his innocence, and they can railroad any given man without him being able to employ legal representation.
This is really not only entirely outside of the scope of law enforcement, it is purposefully so.
@slwerner
I second your comment, and would like to add that the Kafkaesque nature of these tribunals is quite deliberate as well. The aim is not to punish those guilty of sexual assault; that is easy enough to do. Rather, the power is demonstrated by the ability to convict anybody, the more obviously innocent the better. The obvious unfairness is an important feature. Hence the cockiness and bullishness of "gender warriors" on any campus, which will be familiar to anybody who's ever dealt with them. They already win every conflict they decide to engage in, and the new rules will give them an additional weapon.
If I can make a suggestion: it would be good to read some suggestions about how to defend oneself in front of such tribunals. It seems to me that refusing to participate and immediately starting a lawsuit against the university would be a good strategy, even if expulsion is then inevitable. Is there a better solution?
"It seems to me that refusing to participate and immediately starting a lawsuit against the university would be a good strategy, even if expulsion is then inevitable. Is there a better solution?"
Without throwing cold water on our discussion, the best way to avoid trouble is not to mix alcohol and sex. And, yes, if this sounds like victim blaming, it is. It's just too risky for men on campus nowadays. Will that stop all false claims? No, but trust me, it would stop most.
Expulsion seems a less desirable outcome than a longshot lawsuit -- good luck finding a contingent fee lawywer who would handle that one. Unfortunately, if there are criminal charges pending, you likely will have no choice but to be expelled for the reasons explained here: http://falserapesociety.blogspot.com/2011/05/by-balls-thats-where-your-sons-college.html
@Archivist:
Fine advice about alcohol, although
in reality the alcohol-sex mix is not likely to go away.
My question remains: when I student faces such a tribunal, what does he do (other than possibly regret he acted stupidly)? You seem to suggest that he collaborate, honestly present his case, and hope for the best. Unless he is facing criminal charges, in which case he should concentrate on them and take the inevitable expulsion. Correct?
Anon,
I'll let Pierce answer the alcohol part, but one thing that should be done by the accused, is to attempt to delay the hearing until after the criminal trial. If it occurs before the criminal trial, the fact that he was expelled for the claim, can be used in the criminal trial.
I ain't a lawyer but ... it would seem to me that the false accuser is leaving themselves open to a large liability in a civil trial if the accused gets kicked out of college. Two reasons: 1) the accuser probably has money because she can afford to go to college. 2) the accused is not only losing the tuition he paid and got nothing for but all of his future earnings. What it might take is for the person falsely accused to sue the false accuser for $5 million and win to make this sort of thing risky to the accuser. Right now there is nothing.
A little elaboration on my questions above ...
I am not a student, but I teach at a large university (in a technical field). I advise a number of students and they occasionally come to me with questions of the type discussed here. This is the reason that I am asking, one more time, what is a student in front of such a tribunal to do?
The fact is, to tell a 19-year old guy 'you shouldn't be young and stupid' is itself stupid. Please remember how we were at that age: would we stay away from women when we drank, under any threat?
We have to acknowledge reality. Guys at that age will get drunk and they will not rationally evaluate women around them. Neither will it help to tell them that the system is unfair and that they better sign a petition or something. Political advocacy has its place, and so does collection of evidence about false accusations. I would, however, appreciate a solid article about what to actually do if one is caught in the gender meat grinder.
This seems very important to me, but I do not want to tell the authors about how to run their (very important) blog.
If this suggestion is out of place, I apologize.
"The fact is, to tell a 19-year old guy 'you shouldn't be young and stupid' is itself stupid."
Reality check time here. Responsible people tell 19-year-guys that very thing all the time. In fact, responsible people start when he's much younger. And you know what? Mirabile dictu! Most of them listen! The percentage who are caught in the meat grinder is, relatively speaking, very small.
For those few who are caught in a disciplinary hearing, you need to do one thing: hire a lawyer. Borrow the money from your grandmother if you have to, it's the best investment you'll ever make. These hearings are usually won and lost on the basis of the evidence and how that evidence is presented. Most 19-year-old men falsely accused of rape have no idea how to defend themselves, and adopt a defense that is more emotional than logical. Get the best attorney you can afford, and do whatever he or she tells you.
If you have criminal charges pending, you might be in trouble for the reasons I alluded to earlier in this thread.
A civil action will be very difficult to mount because the accuser generally has limited funds or is outright judgment-proof. Besides, damages are speculative. Attracting a qualified contingent fee attorney for such a case will always be difficult.
That's what you do.
Archivist - "Reality check time here. Responsible people tell 19-year-guys that very thing all the time."
As the father of a 19 year-old son myself, I can attest to the fact that caring and conscientious people DO, in fact, tell 19 year-old guy's to NOT BE STUPID. [this extends beyond just avoiding FRA's by avoiding alcohol and loose women]
Hopefully, they understand and accept the advice.
At least they don't become indignant, and organize "Stupid Walks" in protest of a well-meaning person trying to advise them against their intentions (otherwise).
@anon:
Have the student reach out to any administrators he trusts and know him to be a good person. It won't do much but it may help. At most schools, you are generally fucked.
I am not sure I agree with the lawyer advice. I can only speak on the one academic institution I am familiar with. I think it is good to find a lawyer so that the student does not say anything that can be self-incriminating (there is pressure to give a false confession in order to get a reduced punishment). On the other hand, if you know your odds are pretty much crap, then you may need all that extra money for moving on in life. For the academic institution I am familiar with, the attorneys that usually get involved will tell you it's just a matter of getting suspended of expelled. In recent years no on accused has been found not guilty to their knowledge (anonymous results of cases are not published). On the other hand, I believe Pierce knows of schools where a decent result is possible, so I guess it depends. If a student actually has a shot of being found not guilty, it may be worth finding a lawyer. If a student has no shot and is already $100,000 deep in college debt, then it may be best for the student to start planning on how they will move on.
As for moving on, there is probably a different way for every person. The three things I'd recommend are to join a sports team or hobby group, do volunteer work for a good cause, and get a job. After a college student goes through the system, it may be difficult for them to get a hold on trusting people. If suspended, earning money to pay off college debt and doing positive social activities are probably the best things to do. If expelled, I'd recommend the student apply to top international schools (St. Andrews, LSE, Cambridge, etc) that focus mainly on test scores and an interview. The student would have to start anew, but would be able to have a discipline-free record (they could then apply to U.S. law, med, and grad schools). Suspended students could do this as well, but in most cases it may be too much of a hassle and too risky.
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