On Campus, Absence of Due Process Extended to Gays

Rape and lesser incidents of sexual misconduct on college campus must not be tolerated, but false accusations without due process for the accused, often leading to sanctions or being expelled and a public record that can’t be challenged, are not justice. That’s been true of male-female student relationships on campus (where charges often follow sex that occurred while both individuals were inebriated or stoned), and now it’s been extended to gays, as the Washington Post reports about a case at Brandeis.

The charges here, however, involve a couple that dated for two years and, after the breakup, one accused the other of violations such as staring too much at him while he was undressed in the bathroom, and kissing him while he was asleep and thus unable to consent (did I mention this was a two-year relationship)?

The accused, who was not entitled to legal counsel, was sanctioned by university officials but not expelled. But “he is incensed that his life was turned upside down with what he believes was flagrant disregard for his due-process rights. And he worries about how the sanctions might affect his future.” The accuser “is outraged that the university did not expel his ex-boyfriend.”

The Post reports:

The current and former college students describe themselves as victims of false accusations amid a national campaign — led by the White House — to stamp out sexual violence on campuses. While the federal push to increase awareness of sexual assault is aimed at keeping students safe and holding the nation’s colleges and universities accountable, some of the accused say the pressure on their schools has led to an unfair tipping of the scales against them.

Maybe these incidents should be left to the judicial system when there is evidence of an actual crime. Otherwise, students should learn they are expected to take responsibility for their actions, including bad relationship decisions and morning-after regrets.

More. “Wink” comments:

So many microaggressions! This article should have had a trigger warning. I feel violated and plan to sue.

Furthermore. From Philadelphia Magazine: “The battle over what constitutes sexual assault on college campuses is reaching new levels of absurdity.” You think? But don’t try to tell that to Sen. Claire McCaskill.

22 Comments for “On Campus, Absence of Due Process Extended to Gays”

  1. posted by Wink on

    So many microaggressions! This article should have had a trigger warning. I feel violated and plan to sue.

  2. posted by Tom Jefferson III on

    The issue of sexual assault/harassment is a serious one and should not be tolerated — anywhere.

    It can…”complicated” by the fact many of the standard policies with regards to sexual harassment or assault and the like often are a bit dated when it comes to sexual orientation/gender identity issues.

    Remember that it was not really until the 1980s, that state laws were changed so that a man could no longer rape his wife and claim it was his male privilege.

    Much of the substantive work that has come out of protecting people from domestic abuse, sexual harassment and other forms of violence is relatively recent and (mostly) very good and necessary.

    The campus pretty much has to follow the rules, so if the rules need to change or unfair, that may be a question for someone else.

    Yes, MOST OF THE TIME the victim of a sexual assault on a campus (for example) is going to be a female and (most of the time) the creep will be a male.

    However, men — gay or straight — can be victims of sexual harassment or assault. It is reported much, much less often. although their is certainly a stigma of a man making such a legal complaint.

  3. posted by Jorge on

    “●Did one student stare too much at the other in the bathroom?”

    Did one student stare too much at the other in the bathroom???

    This sounds like a typical pre-DV relationship in which the aggressor has no clue, and maybe the victim has poor self-esteem. The outcome sounds completely fair to me, and I think the accuser sounds too much like your typical crazy ex to expect better. Punishment is not the only purpose of the a justice system. Its purpose is also to deter crime or wrongdoing, including by rehabilitation. The alleged perpetrator quite reasonably wants to be exonorated. But the college concluded it was more likely than not that he really did harm the other student, in ways that were a violation of campus rules as written. If a lesser punishment can protect the student body and serve the interests of justice, then I believe it must impose that lesser punishment. I do not agree with such rules, by the way. The big thing that’s missing from campus regulations that is present in most laws (and certainly sex offenses) is a doctrine on whether or not intent is required.

    Yes, the deck was stacked against the complaintant. One of the reasons is because he got out while the getting was good. Many people gain astonishing powers of clairvoyance about their partners–DV victims get them a little late or can’t act on them. Unfortunately, clairvoyance can only protect the individual, not the public. If the aggressor is then at least minimally smart enough to stay away from you (and many aren’t), that case is probably going to get settled. Your gut feeling or vague sense of violation doesn’t allow the law to expel other people or put them in prison, nor can an outsider tell if it’s the alleged victim or perpertrator who has the social or relationship deficit–look, in real relationships one person doesn’t kiss or peep in on the other person without permission for long, either they break up or they change the rules.

    I was once an alternate panelist in a student panel that heard cases of alleged violations of college regulations. I ran for the position after the panel removed or suspended a popular student from the dorms (there was a protest over it). I once had a case of harassment and vandalism that we mostly believed happened but we felt we didn’t have enough evidence to make a guilty finding. We felt terrible about it. That’s just how it goes sometimes.

  4. posted by Jorge on

    “Sen. Claire McCaskill (D-Mo.) is teaming with Gillibrand and others on a bipartisan bill that would require colleges to provide more support for students who report sex offenses.

    McCaskill, a former prosecutor, said she wants as many cases as possible to be handled in criminal courts. The bill would require schools to coordinate with law enforcement agencies in solving sex crimes. But she said it is important to remember that college disciplinary inquiries do not put accused students in jeopardy of going to jail.

    “I don’t think we are anywhere near a tipping point where the people accused of this are somehow being treated unfairly,” McCaskill said.”

    Well, she’s sure acting like it.

    I just read an online article some weeks about how few due process rights employees have when they are accused of misconduct (certainly fewer than on college campuses, when I think about it). But by now there are attorneys who are well practiced in advising and defending such clients. There are ways to either get a full exonoration or a best interests settlement and keep your reputation. There are also ways to protect yourself when you can’t think straight.

  5. posted by Houndentenor on

    The problem is that many universities insist on doing their own law enforcement including punishment. For university infractions (cheating, for example) that is appropriate. For assault, rape, etc. it is not. We should address this legally. Under no circumstances should university officials be the ones prosecuting and punishing in sexual assault cases. We have a legal system that is designed for that and more often than not the university uses it to cover up the crimes of students it wishes not to punish (often athletes but also children of wealthy donors) or to simply avoid the bad publicity that would come from a public trial. There is no reason that this should be legal.

    • posted by Aubrey Haltom on

      “That’s been true of male-female student relationships on campus (where charges often follow sex that occurred while both individuals were inebriated or stoned),…”

      Where are the statistics that “charges often follow sex that occured while both individuals were inebriated or stoned…”?

      Or is that just Miller doing his best George Will?

      The polling of college students throughout the country has revealed some startling numbers. This article includes links to polling re: sexual harassment and/or rape for gay, lesbian students, for african-american students, etc…:


      And though there are legitimate questions re: the methodology of some of these polls – previous polling did not show as high a percentage of students experiencing harassment and/or rape as the DOJ survey in 2000 – there really can’t be a doubt that there are some serious issues involving sex crimes and students on campus.

      I’m guessing that Stephen’s main ‘beef’ with this issue is the Obama admin’s decision to get involved and compel some action by colleges and universities.

      The typical conservative response in the media seems to be that the onus is being moved from the victim (accuser) to the perpetrator (accused). That the government is now requiring ‘consent’ (not necessarily verbal – it can be implied in numerous ways) from the victim, at all times – seems to rub many the wrong way.

      But there is a serious issue at stake here. Even the most ‘conservative’ statistics reflect a problem on campuses that should concern us as a country. How we address those concerns is the question.

  6. posted by Jorge on

    Furthermore. From Philadelphia Magazine: “The battle over what constitutes sexual assault on college campuses is reaching new levels of absurdity.” You think? But don’t try to tell that to Sen. Claire McCaskill.

    I cannot agree with this conclusion. More unified and more professional procedures increase, not decrease, due process.

    Most criminal and civil juries do not ask questions during proceedings. I did. I did not receive any training on sensitive issues. Conflicts of interest? Maybe there should be a better way to deal with them–that’s all I’ll say.

    The problem is that many universities insist on doing their own law enforcement including punishment. For university infractions (cheating, for example) that is appropriate. For assault, rape, etc. it is not.

    I disagree. This goes to the principles of “free association”. Ignoring for the moment the corrupting influences of federal money, colleges and universities have the ability to admit and students at their own discretion, the same as students have the ability to select or leave them at any time. So, too, should they have broad powers to expel students at a minimum for cause, when those students make it more difficult for the college or other students to carry out their actitivies. (Yeech! And that’s why they don’t take pot use as seriously as vandalism.)

    As for colleges covering up crimes, if the victims are adults (obviously something that did not happen with Jerry Sandusky’s crimes), it is not the colleges who are responsible for covering up crimes. If you are over 18, you are considered a legal adult, mature enough to make informed decisions about whether or not law enforcement should be involved. Reporting a crime only to a campus authority is making a decision to defer to the campus’s decision about whether to start a criminal investigation. If you are an adult, you are responsible for this decision.

    I admit sometimes having little patience–sympathy, yes, but not patience–with people who know they are been wronged but are not willing to take the steps needed to resolve their circumstances. The first person you disclose a problem to is not always the person responsible for solving it. You get informed about who to go to, and then some kind of barrier stops you, perhaps that decision should be respected by the authorities and the victim should receive a kind of assistance they are ready to accept. But at a certain point the investigation needs to end, or at least cool down.

  7. posted by Tom Scharbach on

    The idea that colleges and universities should monitor and control student personal behavior outside the classroom and/or other academic arenas is a throwback to the days when the age of majority was 21 years of age, rather than 18, and colleges acted “in loco parentis” to students, that is, assumed parental rights, duties, and obligations of a parent in the absence of the parent.

    At present, almost all college students are legally adults (a few freshmen in college may be under the age of 18, but the number is small). Colleges no longer have an obligation, moral or otherwise, to act in loco parentis, and should not. We have police, and we have a legal system. Let infractions of the law be handled by the legal system.

    However, I acknowledge and support the right of private colleges and universities, in particular colleges and universities that a religiously-affiliated, to create and enforce codes of conduct that require stricter standards of behavior than are required by the law.

    I see no reason why a private college or university cannot enter into a contract with students that prohibits otherwise legal behavior — smoking, drinking coffee or tea, dating without a chaperone, non-marital sexual conduct on or off campus, and so on — under a code of conduct fitting the college’s or university’s mission.

    But private or public, religious or secular, code of conduct or no code of conduct, colleges and universities should report infractions of the law to the police, and let the legal system deal with guilt or innocence and punishment.

  8. posted by Jorge on

    But private or public, religious or secular, code of conduct or no code of conduct, colleges and universities should report infractions of the law to the police, and let the legal system deal with guilt or innocence and punishment.

    I think you’re trying to have your cake and eat it, too. If you start from the proposition that private colleges and universities can have stronger rules than criminal law, there is no reason they cannot 1) have stricter standards for enforcing and adjudicating their rules, including rules held in common with criminal law 2) have more lenient rules than criminal law, or 3) have more lenient standards for enforcing and adjudicating their rules.

    Who is the victim when a student breaks the law on campus?

    If it is primarily the college/university or the campus community, such as in many cases of vandalism, drinking and drug use, loitering, and public urination, then they have a First Amendment right not to report the crime to the police. There are many reasons why they may choose not to do so–the same reasonable and bizarre reasons the general public has. This applies to public colleges as well–if the Obama administration can decline to defend certain laws in court and the district attorneys can decline to prosecute certain cases, then public colleges can express their own government opinions through policies and practices as well.

    If the victim is another student, such as in cases of harassment/assault on up, then the student, too, has that same right. When such a crime harms the campus community–something that the campus, and only the campus, is qualified to determine–then the campus has its same First Amendment or government expression of opinion rights, including to bypass the legal system entirely and to choose not to associate with particular problem students, the same as when the two students in this case broke up.

    Mr. Miller says that “Rape and lesser incidents of sexual misconduct on college campus must not be tolerated.” Where it is legitimate to speak of “colleges should report this” is where its action or inaction can directly effect the safety and protection of either other individuals, which would be enforced through civil lawsuits, or public safety, which I think is a matter for the government, not the campus, to decide. The laws already in place are extensive. They are also not working (as demonstrated by the reported statistic that some campuses have no sexual incidents). A fair preponderence of the evidence standard is far from zero tolerance.

    • posted by Tom Scharbach on

      Jorge, I think that yours is a thoughtful response, and I recognize that private universities frequently take it upon themselves to “handle” criminal activities by students internally for a variety of reasons.

      I have two answers to that: (1) most crimes have a victim, and a private university cannot stop the victim from calling in the police; and (2) while the legal system does not, in general, impose an obligation to report crimes, the legal system does impose criminal liability on those who cover up serious crimes.

      Obviously, I’m not suggesting that private colleges and universities become a law unto themselves. I am suggesting the opposite — that private colleges and universities stop acting as if they were a law unto themselves.

      We don’t have a perfect world, and never will. But colleges and universities are botching the job of acting as law enforcement agencies in both directions as often as not, probably because colleges and universities have competing self-interests at stake (witness the mess at Penn State), and an expectation that colleges and universities would turn over law enforcement to the legal system is a step in the right direction, it seems to me.

      • posted by Jorge on

        Just looking to maintain reasonable boundaries, Tom.

        With the right methods of any needed reform, I think things will work themselves out.

        • posted by Mark on

          This post reminds me a little of left-wing activists who say that immigration reform is a gay problem, or right-wing activists who say that tax cuts are a gay problem. Almost every public policy issue affects gays or lesbians in some way. But there’s nothing in Stephen’s article showing that the student was harmed because he was gay. He was denied due process because he happened to be caught up in a college process, where it seems like everyone accused is denied due process.

      • posted by Mike in Houston on

        I think that there are lessons to be learned from my alma mater, TCU, in this area — first with the major drug bust that snared frat boys, football players (some stars) and others as a joint effort between campus and Fort Worth police departments.


        The second involved another star football player, Casey Pachall, who was busted for DUI — went through the legal system and rehab — and was allowed to return to campus and the football program.

        The third was the school cutting ties with star defensive end, Devonte Fields because he allegedly assaulted his girlfriend… the matter was turned over to local law enforcement for prosecution and he was not only cut from the football program but also dismissed from the university.

        In all three cases, I think that there were appropriate boundaries and due process.

  9. posted by Tom Scharbach on

    On a side note, if you want to understand the utter bankruptcy of the anti-marriage legal position, I would point you to listen to the oral arguments in the 7th Circuit today (the link is to the Wisconsin case, but Indiana is also available at the 7th Circuit website).

    The court’s questioning was, in a word, brutal, and the lawyers arguing for Wisconsin’s ban came up absolutely empty.

    Judge Posner, one of the brightest and most cited judges in the United States, was particularly devastating in his questioning.

    Listening to the two sets of oral argument, I have no doubt at all that the 7th Circuit panel will rule in favor of marriage equality.

    • posted by Mark on

      Has the Wisconsin AG’s office ever heard of doing a moot court to prepare for oral argument? Or maybe reading the case file before appearing at a Court of Appeals?

      It was almost as if the ass’t AG wanted to alienate the three judges.

      • posted by Tom Scharbach on

        The lack of realistic preparation was remarkable. At a couple of points, I was stunned when he could not answer basic questions. It isn’t as if the AG’s office isn’t in the 7th Circuit several times a year. I can’t fathom it.

        Indiana, though, fared no better. Posner made mincemeat of the Indiana lawyer.

        The problem is that the lawyers have nothing to work with. All the “fact-based” rationales have been destroyed, so they are stuck with logic that is, in the words of Judge Hamilton,
        “reverse engineered” to try to fit a constitutional theory. The problem is that the arguments make no sense.

        • posted by Mark on

          Agreed–with any fair-minded panel, there’s no rational argument for these bans. This panel shows just how biased the 6th Circuit’s deference was.

          At least the Indiana attorney could somewhat think on his feet and answer questions–the Wisconsin ass’t AG came across as an automaton, repeating over and over “legislative choice,” “tradition.” The best moment was when Posner and Hamilton both almost cried out when he tried to get around Loving by saying the interracial marriage bans were just misapplications of the common law and not statutory bans.

          • posted by Tom Scharbach on

            I agree on all scores, although I note that Judge Sutton’s Nelson-based hesitancy in the 6th is at least plausible, if not persuasive. I don’t think that it amounts to a hill of beans, and the worst that a Nelson-based opinion does is kick the can up to SCOTUS, but at least it is a straw to hang onto if Sutton wants to decide against equality in order to preserve whatever changes he still has of making it to SCOTUS.

            I will be very curious to see what Sutton does with it. If he rules in favor of equality, he’s finished as right-wing papabile, so to speak. Nelson might give him a way out. But if that doesn’t work out, I wouldn’t be surprised to see him step down from the 6th in a few years.

            Returning to the 7th, Judge Posner used to teach at the University of Chicago Law School years ago, when I was a student. He did not suffer fools kindly in the classroom — he routinely pinned us to the wall like bugs when we said anything half-baked — and I suspect that the inanity of the legal arguments that remain in support of the marriage bans just set him off. He has a well-deserved reputation for making lawyers who appear in front of him squirm because he’s better prepared than they are, but he was unusually ferocious yesterday.

            I suspect that he will write the panel’s decision, and it will be a scorcher.

            I can’t fathom why Tim Samuelson (Wisconsin’s AG) dropped the ball as badly as he did. He’s no Ted Olson, but he’s an experienced appellate lawyer. There’s no way that anyone could have prevailed with the legal material he had to work with, but his argument was just appalling. Maybe he was rattled by the ferocity of Posner’s attack. I just don’t know.

          • posted by Jorge on

            Legislative choice and tradition…

            It is one thing to say we’re not going to second-guess the decision of a democratic body. Their wisdom, their perspective, and so forth.

            But you can give the legislature the respect it deserves and still point out it did something illegal. This forces the various tests, like rational basis, on you. It looks like you cannot use the “negative rights” argument to say the rational basis test does not apply. So use rational basis. The Wisconsin attorney got it toward the end: caution as itself a good, though by now I think that argument grows weak.

            The situation where the “negative rights” argument would win is where like in New York with its 1908 law that its state highest court upheld because that law never imagined gay people exist; while all these new laws saying gay people exist and we’re telling them “no” are held unconstitutional. New York had the right to do nothing, while the federal courts have ruled the states do not have the right to do something.

            That argument is so difficult to craft in an upstanding way that it can work only when it is defending a law crafted with the most exacting care and precision–one that can reproduce New York’s in its naïve blindness to the mere possibility of same sex relationships–an undertaking that is well above the pay grade of those who are purchasing such laws.

            Certainly far, far above that of the Juliet Applegate brigade that Tom says infests Wisconsin.

        • posted by Jorge on

          Wow. That was so painful I had to stop before the 20 minute mark.

          Look, isn’t it better to go down in flames than with a whimper? Let the silly judge rule against you. But as you say, to do that…

          I’ve been cross-examined in court a couple of times (and judges are always capable of being tougher). You can and in my opinion should choose which things to stand on, which to concede, whether you accept a wipe out or tell the judge or attorney go ahead and stomp you. And choose wisely, in such a way that you control the tempo. But as you say, to do that you have to prepare.

          In all that whining, he could have told the judge once that is not relevant, then danced once to his tune, and then gotten his dig in.

  10. posted by Tom Jefferson III on

    As a practical matter, I suspect that the State Attorney General felt obligated to defend the law, despite the lack of coherent/rational arguments for upholding the law in court.

    Given the fact that the reasons for banning same-sex marriage (within the secular-civil legal system) are not really rational/coherent, the State Attorney General pretty much had to know that he was walking into an awful mess.

    Basically, all the State could argue was, “Its tradition” and “the voters have spoken.” Even then, the State had to know it would be walking into a mess, because (as the judge pointed out)…..

    The fact that a law is part of a tradition, does not actually mean that it is Constitutional — i.e. the racial restrictions on who a person could marry (or date for that matter).

    The fact that a law is passed by the legislature does not automatically mean it is Constitutional. The racial restrictions with regards to marriage were, at one point, probably quite popular with voters and thus lawmakers.

    It is good to listen to the oral arguments and yes, the judge was correct in his criticism of the State’s argument.

    However, I suspect the State pretty much knew it didn’t really have any rational/coherent argument to make and that the only two things it could argue — with a ‘straight’ face was the two arguments it made.

    So, I almost feel sorry for the State attorneys because they had to walk into court to defend a law that cannot really be defended and their was not much they could do about it.

  11. posted by Tom Jefferson III on

    Getting back to the campus issue….

    If a student comes forward with a serious accusation of being sexually harassed/assaulted/rape by someone that they are likely to see on a daily basis (i.e. another student, faculty or staff member)…. I can see why the University might want to address that situation by removing the accused from the campus.

    If they do nothing, then you have a student — male or female — who has to see/interact with his/her rapist on a daily basis, which can be incredible uncomfortable.

    Yes, “innocent until proven guilty”, but their are practical considerations that critics of the University policy are glossing over.

Comments are closed.