Sunday, February 13, 2011

College men who file suit after being wrongly accused of rape may be disciplined by their schools for retaliation

A very troubling drama unfolding in a Vermont federal court starkly illustrates how society, and especially our institutions of higher learning, construct roadblock after roadblock to prevent men falsely accused of rape from seeking redress for their injuries. The Vermont case points up an especially shocking double-standard -- shocking, even in a milieu where unfairness to falsely accused men and boys is the norm.  As you read on, watch for these two things:

(1) An anonymous college woman is permitted to possibly wrongly accuse a male classmate of rape and destroy his reputation in the process, but if the man files a lawsuit to vindicate his rights, he could be subjected to discipline by the school for retaliating against his accuser.

(2) A federal judge doesn't want to decide a man's suit seeking redress for an alleged false rape claim stemming from an alcohol induced "he said/she said" rape scenario -- because it's too messy.  Do you think we'd ever hear a judge say that about a "he said/she said" rape case?  We should, but I have never heard it, and I follow these kinds of cases very closely.

Here is what happened:  One night in 2009, Joshua Vaughan and an unnamed female classmate engaged in alcohol-fueled sex.  Six months later, the woman reported her version of the story to two "student ambassadors" who then informed Shirley Jefferson, the school's dean of student affairs.

According to the Burlington Free Press: "Independent investigators appointed by Jefferson concluded they could not say if the encounter was consensual or not, according to court documents.  The woman by then had told Jefferson she no longer wanted to pursue her complaint, but Jefferson decided to go forward with the case. She told Vaughan the school would drop the sexual assault claim if he would admit to a lesser, sexual harassment claim, Vaughan's lawsuit said.  Vaughan rejected the offer and opted to go forward with a formal hearing instead. On Sept. 9, the college's code of conduct panel unanimously found Vaughan innocent of the sexual assault allegation."  (Emphasis added.)

Did you get that? Despite not having sufficient evidence to prove a sexual assault, the school chose to roll the dice and play a sort of twisted Russian roulette with a young man's life, essentially declaring: "Even though we don't know whether he did it, let's proceed with the hearing anyway, and maybe we'll 'get lucky' and the panel will find he did it."  (This, of course, merely illustrates why colleges should stay out of the business of judging sexual assault claims.) 

After Mr. Vaughan was exonerated by the conduct panel, he filed suit against the college, Shirley Jefferson, and the unnamed woman with whom he had sex.  He is seeking $2 million in damages.  He claims the school's actions in the case have ruined his reputation and made him a pariah on campus. "They've destroyed his academic life. They've destroyed his social life," Vaughan's attorney Ned Whittington told federal Judge William Sessions III.

The school's attorney Susan McAndrew charged that Vaughan had "violated all the confidentiality provisions in the student handbook by bringing a lawsuit." She asked Sessions to rule that Vaughan's action, according to the handbook, was an act of retaliation justifying instigation of a new round of disciplinary proceedings by the school.  Judge Sessions declined the request to have him characterize Vaughan's lawsuit as an act of retaliation but did agree to issue a ruling saying the college had the right to begin proceedings against Vaughan on those grounds if it so chose.

The school's student handbook says this: "Retaliation against any person for making a good faith complaint of unlawful harassment or discrimination or for having participated in an investigation of such a complaint is itself lawful, is prohibited, and is a violation of this policy."  Handbook, page 144, number 4.

"Good faith" is not defined in the handbook. The term generally means honesty in fact. Sometimes, for example in commercial settings, it also has an objective reasonableness component. My educated guess is that "good faith" as used in this handbook would be construed to carry only a requirement that the accuser was subjectively honest in making a rape claim. So, for example, if she is delusional, she acted in "good faith."

The judge voiced unease about the prospect of presiding over a civil case where the two sides are publicly debating details involving sexually intimate conduct of the two students after a night of heavy drinking.  "I would advise the parties to think seriously about resolving this case relatively quickly," Sessions said. "This kind of case can go on a long time and hurt a lot of people."

Re-read the judge's words. Let them sink in. Then ask yourself if we'd ever hear a judge say those words at the start of a rape case -- under exactly the same factual scenario presented.  The question scarcely survives its statement.



FIRST: The Vermont Law School's retaliation policy is typical of college policies around the country. I have had first-hand involvement with them in my legal practice and once had a very heated discussion with a large school's in-house counsel over this exact policy. Counsel essentially admitted I was right, but chalked up the rule to feminist politics.

These policies effectively deny, or severely curtail, college men wrongly accused of rape the right to do what you and I, and everyone else, are free to do: vindicate their rights in a civil action after they've been harmed by a legally actionable tort. Specificially, they create a tremendous disincentive for men to file suit to seek redress for a wrongful rape claim.  Colleges justify curtailing the rights of male students accused of rape in this manner as a necessary evil to wage the war on rape.

The policy behind retaliation provisions in handbooks is the same as virtually every other rape reform ever enacted: to encourage young women to "come forward" and report their sexual assaults. (And by the way, none of these policies have ever worked because the sexual grievance industry continues to insist underreporting is rampant.) These policies assure women they can report without fear that the men they accuse will do anything in retaliation.  Such policies, which can engender injustices when the rape claim wasn't true to begin with, were concocted in a bow to political pressures as opposed to silly things like justice or morality. They illustrate that when it comes to rape and false rape claims, society considers the victimization of our daughters as more worthy of our protection than the victimization of our sons.

SECOND: The judge might just be right. "He said/she said" cases where alcohol was involved are too messy to adjudicate.  But this applies to rape claims even more than claims that the woman lied about rape, yet we never hear judges say this in rape cases. Why can't we be honest enough to admit that "he said/she said" date rape claims place an impossible burden on the people investigating them? Stop pretending otherwise. Even true believer feminists, like prominent feminist legal scholar Aya Gruber, admit that the criminal justice system is not equipped to deal with date rape.

Another day, another injustice in a our false rape society.