DeVos' proposed campus sexual assault rule changes would not be necessary if the falsely accused were not victimized by a lynch mob mentality

I recall reading a Seattle Times editorial concerning the “alarming” trend of a relatively high percentage of boys showing a disinterest in school and dropping out. The authors of the editorial cautioned, however, that whatever steps taken to “help” boys in danger of dropping out should not “hurt” girls in the process. What the hell was the paper talking about? What would “hurt” girls that “helped” boys? Was the Times suggesting that the steps that schools had taken to marginalize and suppress boys’ natural aptitudes so as to build-up girls’ “self-esteem” should not be tampered with?

These kinds of political considerations are also evident in Education Secretary Betsy DeVos’ effort to scale down Obama-era rules that make it more difficult for male college students to defend themselves against accusations of sexual assault, essentially taking away their due process rights, and being deemed “guilty” simply on the charge being made. Of course, if you are a superstar football player, a school might decide that perhaps the player’s due process rights should be “respected,” such as in the case of Jameis Winston, when he was accused of rape by a female student when he quarterbacked Florida State’s championship teams.

DeVos’ proposed rule changes would discard the vague Obama-era definition of sexual assault as “unwelcome conduct of a sexual nature,” in which potentially a female could apply a “sexual” context on any interaction in which she felt slighted. Under the proposed new—or “old”—definitions, sexual assault would be divided into categories based on relative severity and what is the appropriate penalty for each. It, does, however, still allows the politically-charged "unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school's education program or activity," which could be “locker room” talk—or charged by a person who simply doesn’t want to face colleagues who dislike her for one reason or another, and she needs to “rationalize” it.

But while the new rules contain language that schools will be punished if they do not take complaints of sexual misconduct seriously, it has come under attack because students accused of sexual misconduct will be allowed the “presumption” of innocence, and be allowed access to evidence being used against them and be able to respond to that evidence. The accused also has the right through their attorney to cross-examine their accuser. Naturally, gender activists are denouncing the right of the accused to have due process rights, claiming that if accusers are forced to have their stories questioned, they would rather choose to be “silent.”

Sexual crimes and allegations has been politicized for a long time, but prior to 2014, the “legacy definition” of rape was generally limited to instances of actual “penetration.” If we just count the number of arrests made for rape in 2013, the number is about one-in-10,000 adult females making a rape accusation that led to the arrest of an alleged perpetrator (but not necessarily charged, tried and convicted). The number of arrests for rape was in fact barely higher than that of homicide; but unlike in the case of homicide, where the evidence of a crime is clear, rape is often a “she-said/he-said” proposition. But for gender victim advocates in the Obama Justice Department of the “feeling good about feeling bad” stripe, these numbers just didn’t seem to hit home the “fact” that incidents of rape was an “epidemic,” and  sought to “revise” the definition of rape, and succeeded. Today, the FBI’s “revised” rape definition has close to doubled previous numbers by including not just incidents where no actual “penetration” occurred, but where the female victim “believed” that that the accused perpetrator “intended” on raping her. When you have white women who hold sexual stereotypes of certain races and “ethnicities”—not to mention this country’s history of protecting the “sanctity” of white womanhood from such—it shouldn’t come as a surprise that such racial stereotyping has been used to “redefine” what rape is.

There is of course other ways to do the counting, the kind that can “square” a university women’s advocacy group’s claim that one-in-three college women are raped with a statistics such as from a 2007 newspaper story which gave the number of reported rapes at the University of Washington in 2006 as six, with none leading to charges. Not by just inventing numbers whole cloth, but by using surveys; some of the methods of survey takers with political agendas have been accused of being overbroad in their definitions, asking questions that can only be answered in a way that is a preconceived result, or tend to be responded to by people who believe they have been a victim, rather than those who haven’t. CDC surveys are perhaps less likely to overtly seek preconceived results, and their results seem to suggest that males are the real “silent” victims of, say, domestic violence. However, when the CDC surveys are mentioned at all in the media, what numbers are publicized tend to be selective.  It is interesting to note that lesbian couples have the highest incidents of intimate partner violence, but the CDC surveys can be criticized for what they don’t say: the CDC does not have counts for sexual assaults or rape by females, apparently since it is “impossible” for a woman to rape a man (or a boy). But there is such a category as “statutory” rape, which is presumably counted to boost the numbers in rape statistics in which males are the perpetrators. Why statutory rape committed by women (whether underage males or females are the victims) is not considered statistically relevant only underscores the politics behind the issue.

Of course, everyone has to be a “victim.” The “MeToo” movement has turned into forum where women who are “famous” and have the good fortune to achieve some level of success in life relative to the common run to claim that they were “victims” too. Take for example Michelle Pfeiffer, who claims to have had a “MeToo” moment when she was 20. But this was how Pfeiffer described herself at the time in Vanity Fair in 1993:

I had a big mouth, and I used to mouth off to my mother all the time. But I'd make sure my father wasn't in earshot, because he'd let me have it. I was very strong-willed, very stubborn, and fairly dramatic, I guess. I remember my mother calling me a drama queen when I would be carrying on: 'Here's my little actress.' And I was a real tomboy. I wasn't a terribly feminine little girl. I never thought I was attractive to boys; I remember when the first boy liked me, I couldn't believe it. All the little girls with ringlets and crinoline dresses were the ones the boys liked. I was always beating them up — why should they like me? I was always the biggest girl in the class, and if somebody wanted someone beaten up, they'd come and get me. I was the school bully. No wonder I played Catwoman. It all comes full circle.

Actually I have to give Pfeiffer some credit for at least being honest about her own personality defects, which is a lot more than we can say about others who put themselves on the list. California Assemblywoman Christina Garcia even made it on TIME’s “silence breakers” cover—before she was accused by four men of groping and other unwanted behavior of a sexual nature. Garcia received some mild punishment by the Assembly, but later she was “cleared” of touching a male staffer in the “buttock or genitals” or “that this was a sexual encounter.” Those criticizing the finding noted that “investigators” did not question or contact witnesses who would have corroborated the staffer’s allegation.

Given the number of men who claimed to be the victims of intimate partner violence in the CDC surveys, it is interesting how a “MeToo” page for men would playout in the media or be taken by gender victim advocates; we can guess not very well, probably for the same reason that white feminists downplay racism in this country—they can’t tolerate the “competition,” or being accused themselves.

People—especially gender victim activists—tend to forget why DeVos’ proposed rules have gained any traction at all. It isn’t just that the number of reported incidents of sexual assaults per school is relatively small (I won’t say “tiny”), but because Obama rule changes and “enhancement” of the Clinton-era Violence Against Women ACT were a clear effort by gender activists to find a means to turn their agenda into a “epidemic” and to do so thus were allowed to employ means that disregarded due process rights for accused students that would not be tolerated in (most) courtrooms. Simply making the accusation was enough to destroy one’s life and reputation.

There was of course the evidence of the Duke University lacrosse team fiasco, but there was worse. Take for example Rolling Stone magazine’s infamous article about an alleged gang rape at the University of Virginia. The story took the country “by storm,” before it was revealed to be a fraud, like the Hitler “diaries” and Clifford Irving’s Howard Hughes “autobiography.”  The story’s author, Sabrina Erdely, claimed to recount the experiences of a “Jackie” who claimed to have been “forced” to have oral sex with, and left bloody and beaten by, seven members (later reduced without explanation to five members) of a fraternity during a “date party.” The university found itself in hot water for not taking the allegation seriously, but when it did conduct an investigation, it found holes in the story big enough to run a three-lane truck convoy through. One of these “holes” was that they couldn’t find the “Jackie” who admitted to making the allegation.

When Rolling Stone was confronted with these “holes,” it claimed that the Erdely had done her “due diligence” in trying to locate “Jackie.” The magazine did not speak to any of her friends who were allegedly at the party, and at the “request” of the alleged victim, none of the alleged attackers was contacted, either. Also on her “request,” there was no attempt to contact her alleged “date” that night. Not only that, but the fraternity where this occurred had been “misidentified.” In fact, in doing their “due diligence” investigation, the magazine did not speak to a single person who had firsthand knowledge of the alleged gang rape. Remember, this wasn’t the school trying to “cover-up” a story, this was a magazine attempting to defend itself against a charge of publishing a story that was a mostly or all a hoax.

The Washington Post did its own investigation, and it concluded that there was no evidence to lend credibility to the story. The “three friends” offered wildly conflicting accounts that suggested that they basically making things up to defend “Jackie,” and had failed to get their stories “straight.” It also found that the magazine indeed did not question any of the alleged assailants or question any witnesses at all, who to a person either refuted or pleaded ignorant to the allegations to the Post, although a few noted a “brief” mood swing in “Jackie.” Worse, the alleged “date” of the accuser not only did not know “Jackie,” but he hadn’t even been in the area for six years. No one in the fraternity where the alleged assault occurred knew of or had seen anyone who fit the description of “Jackie” before. Rolling Stone still defended Erdely, but issued an “apology,” admitting that its “trust” in “Jackie” was “misplaced,” but here was no mention of Erdely being guilty of composing a fake story. In fact, the uproar by victim advocates who claimed that the revelations of fraud would cause real victims to demur at coming forward with accusations persuaded the magazine to absolve “Jackie” of any responsibility for the truth with a “clarification”:

We published the article with the firm belief that it was accurate. Given all of these reports, however, we have come to the conclusion that we were mistaken in honoring Jackie's request to not contact the alleged assaulters to get their account. In trying to be sensitive to the unfair shame and humiliation many women feel after a sexual assault, we made a judgment – the kind of judgment reporters and editors make every day. We should have not made this agreement with Jackie and we should have worked harder to convince her that the truth would have been better served by getting the other side of the story. These mistakes are on Rolling Stone, not on Jackie. We apologize to anyone who was affected by the story and we will continue to investigate the events of that evening.

Of course nothing came of that; how do you “investigate” a fake story looking for the “real” facts if in fact you don’t have anything to gain by finding the facts?  And there of course were the victim fanatics at the university; Emily Renda, the University of Virginia’s project coordinator for sexual misconduct, policy and prevention, told the Post that the  question of “Jackie's” credibility wasn’t the issue—“because that wasn't her role” to tell a truthful story. Her “role,” apparently, was to “illuminate” the “issue.” Whether the “issue” was sexual assault or the fact of false claims is a matter of reflection.

There was another case that received less attention but was even more egregious, a case involving a white female student and three black male student-athletes at the University of Oregon. The female accused the three athletes of forcible sexual assault at a party. Despite the fact that local police detectives and the prosecutor found that the accuser had lied about events that night and refused to press charges, the university denied the athletes’ due process rights in the face of a lynch mob mentality by so-called “victim advocates,” and expelled the three.

The alleged victim in this case was known to be a “party girl” who had a “habit” of having sex with people she didn’t know; the problem, it seems, is that the next day she tended to feel “disrespected” and “used.” In regard to the accused, it shouldn’t come as a surprise that they are black (she wanted to see what a “black party” was like). To all witnesses (even her friends) the sexual encounter she had with the three athletes was entirely consensual; she even admitted to having another sexual encounter with one of the accused the following morning that she admitted was consensual. But the “morning after” these encounters, she felt “dirty” and was easily persuaded to make a sexual assault accusation by people who told her she had a “case” which would be believed; after all, she was white and the people she would accuse were black.

But Lane County District Attorney Alex Gardner dismissed the charges against Brandon Austin, Dominic Artis and Damyean Dotson, whose future dreams were ruined by an accusation that, based on the facts, was predicated on the conceit of a person who chose to see herself as a “victim” after the fact. The DA’s statement deserves to be shown in its entirety:

The DA’s office “no-filed” charges in a sexual assault case in which several University of Oregon basketball players allegedly forced a female University of Oregon student to have sex. The no-file decision is based entirely upon analysis of the available evidence and it’s insufficiency to prove the allegations beyond a reasonable doubt.

A no file decision is not a statement about who we believe or don’t believe. It is simply an analysis of the available evidence and its sufficiency to meet the State’s burden of proof. From time to time, additional evidence becomes available after an initial no-file. When that happens, the evidence is reviewed and, if sufficient, a case may be revived and prosecuted.

Recent investigation of sexual assault involving UO basketball players: All three suspects report having consensual sex with the alleged victim. The alleged victim, claims that some or all of the sexual contact was involuntary. In such cases our analysis centers on any evidence of force, the absence of consent, or victim inability to consent. In this case, it’s important to note that the alleged victim and the alleged assailants describe substantially similar sexual activity, timing and order of events. The principal differences between the versions of events told by the alleged victim and the alleged assailants centers on the apparent level of victim intoxication and whether and at what point the victim expressed a desire to either not have sex, or stop having sex. For purposes of this investigation, we are equally concerned with evidence that the victim was forcibly compelled, or unable to consent by reason of intoxication.

The alleged sexual assaults took place at different locations over a period of many hours. According to the victim, the first sexual assault took place at the hands of two of the three suspects in the bathroom of a house where a party involving about thirty people was taking place. She reports the assault being comparatively brief and interrupted when she asked to get a drink of water. The assault allegedly ended after which the victim reports resting on a couch with a drink of water, mingling briefly with other partygoers, and then returning to the bathroom with the same two assailants and a third individual who, she reports, all resumed a sexual assault similar to the assault the first two assailants had initiated earlier.

During the second sexual assault episode, the victim reports getting a text from a friend telling her that it was “time to go”. This assault reportedly ended promptly when the victim told her assailants “I need to go”. At that point, all four people reportedly left the bathroom and the victim went outside where one of her friends was waiting with her ride home. The friend reports waiting for the victim, repeatedly warning her that the man/men “just want you for sex”, and encouraging the victim to leave the party with her. According to the alleged victim, this is the point at which one of the assailants grabbed her and pulled her back towards the house. (At this point the victim’s friend and others describe a playful, flirtatious interaction between the victim and her alleged assailants, with no element of force, no indication of victim fear or apprehension, and no indication that the alleged victim was physically or mentally impaired by alcohol.) The alleged victim then went back towards the party-house and, shortly thereafter, got into a taxi with the same men who had allegedly assaulted her (now twice). The taxi took the group back to a residence shared by two of the alleged assailants. 

Shortly thereafter, the victim and the three men from the second bathroom assault went into one of the bedrooms and resumed various sex acts similar to those that had taken place in the bathroom at the party house. A fourth man was allegedly present and watching the sex acts, but did not participate.

According to the alleged victim, she started crying during the third sexual assault and the assault promptly stopped. She then spent the rest of the night sleeping with one of the three men who had reportedly assaulted her, but she reports no further sex between them. (This is an area of material disagreement concerning the sex acts themselves. The man who slept with the alleged victim reports having consensual vaginal sex one more time in the morning. When reminded of this, the alleged victim confirms that they had oral sex the following day, but can’t remember whether they also had  intercourse.)

The following day the alleged victim reports being tired and upset. When she goes to visit friends she finds two of her alleged assailants in the residence playing video games, so she withdraws outside.

While waiting there another friends walks up, consoles her, and they end up having sexual intercourse. There are multiple sources of information in this case. Since consent is the issue, not whether the sex acts took place, DNA is of little value. The focus was on evidence of consent or the inability to consent. In making the initial determination we evaluated the presumption of innocence and the State’s burden of proof in light of the following:

1) Several interviews with the alleged victim,
2) Interviews with victim’s friends and associates who saw her before and after various critical
points during the time in question
3) Surreptitious recorded phone calls with the alleged suspects
4) Police interviews with the suspects and others. 

A) Although the alleged victim reports being impaired by alcohol prior to any sexual contact, there is no evidence, from her or from others, that suggests she had enough to drink to become substantially impaired prior to the first two sexual encounters in the bathroom. There is also no independent behavioral evidence that the victim appeared significantly impaired: nobody reports her having slurred speech, difficulty walking or any other symptom of impairment from intoxication at any point in the evening.

B) Friends and associates of the alleged victim describe her as friendly and flirtations, both before and after the first and second alleged assaults in the party-house bathroom. Moreover, all witnesses agree the alleged victim had the opportunity to leave the party, or at least ask for help, after the first series of sexual assaults. Friends and others report her “walking and talking fine” both before and after both sex-in-the-bathroom events.

C) The alleged victim recalls extensive detail about all aspects of the evening, including the timing, order of events – even the exact amount of the cab fare and her decision to have another drink of alcohol during the ride to the alleged assailants’ residents, and most of the detail is consistent with the events reported by others (so she does not appear to have been affected to the point of perception or memory impairment. Similarly, there’s no evidence she was ever unconscious during the sex acts, nor is there any evidence she was ever impaired to the point where it adversely effected her balance or stability.)

D) The alleged assailants stopped the sex acts several times – first when the alleged victim asked for a drink of water, next when the alleged victim said she “had to go” and, finally, at the second residence, when the alleged victim started crying (the first point at which suspects claim they  realized she wasn’t “in to it”).

E) Victim returned to isolated locations with her alleged assailants repeatedly, although she had friends nearby and she was in a crowded party.

F) Telephone calls between the alleged victim and alleged assailants were recorded surreptitiously. The contents of those conversations are consistent with suspect’s version of consensual sex, or at least their belief it was consensual sex.)

G) Friends of the alleged victim say she did not appear to be impaired by alcohol at any time during the evening.

H) Alleged victim had consensual sex with one of the suspects the morning after the alleged assaults and, later the same day, she had sex with another friend.

I) The crimes are reported by victim’s father days after the alleged assaults took place and alleged victim is angered by the reporting (because of timing).

J) Alleged victim indicated a desire to only have her assailants’ “wrists slapped”, not ruin their  lives.

K) Assailant interviews with police are consistent with recording made without their knowledge and the statements of other witnesses None of the above would be individually inexplicable, but collectively, and in the absence of additional evidence, they provide an insurmountable barrier to prosecution.

There was outrage on campus concerning the DA’s handling of the case, mostly instigated by gender advocates. There was no outrage over how the athletes’ due process rights were violated by the university. Subsequently, a witness named Kelsey Alston (referred to as “student-witness) gave the following interview to a local television station:

Student-Witness: “I talked to her friends and they gave their opinions on how she interacts with men typically and it mirrored what she was doing at this time.”

Describing her own account of the incident in the bathroom, she says,

“This disrupts her evidence in the police report.” 

“She also states that she left the bathroom when someone opened the door and Dameyean followed her down the hallway. And, that is not true.”

“She returned to the bathroom out of her own accord where she was allegedly being assaulted.”

Interviewer: “Did you feel she was intoxicated to a far extent?” 

Student-Witness: “I, given my knowledge of intoxication of people, she was fully able to think, walk, run…she did not seem intoxicated to any disabling extent…furthermore, this was a party where drinks were not supplied.”

Student-Witness then describes going into the bathroom to find the alleged survivor with two of the men. The alleged survivor said, “Don’t go into the bathroom with me.”

Then,*after* the alleged first assault in the bathroom, the Student-Witness, describes the situation outside the party….

“When I came outside, there was one of her friends telling her, ‘Get in the car. Get in the car.’ And, her friend is repeatedly trying to persuade her to get in the car. ”

“She [the alleged survivor’s friend or roommate] is asking the girl that filed the report to get in the vehicle. And, the girl that has filed the report did not want to go. And, she and her friend were debating about whether she was going to go or stay. And, she [the alleged survivor] was coupled up with one of the boys, to my memory it was Artis. And, she was comfortable.”

“Her friend was telling me, “She always does this. She always hooks up with guys and then the next day we have to help her out. We have to listen to her. She’s hurt… she’s broken the next day. And, I told her friend, you need to let her make her own decisions. And, if she doesn’t like the decisions she makes, a good friend will still be there. I asked the girl who has filed the report whether she wanted to stay or go and she said that she wanted to stay. And, I said “If you want to stay, [then you should] stay.’ ” 

Interviewer asks: “That’s the point where in the report, she claims that Austin had her in a chokehold?” 

Student Witness responds: “Yes. She made it seem like she was being forced to stay and she was not. She *chose* [emphasis added by witness] to stay there.”

“I gave her friend my number. And, I told her friend that is she needs help the next day trying to figure out how do you console someone who doesn’t like what they did the night before to go ahead and call me. Her friend said, ‘OK.” And, her friend left. And, she [alleged survivor] stayed with them and she was comfortable. And, at that point, I went about my night…” 

“The next morning I had gone home and I had gone to sleep and I woke up with a text message from this person saying, ‘Hey it’s me. We had met at a Black party’…. And, I said, ‘Oh, hey, how was your night?’ She said, ‘Haha. It was interesting. What about yours?’ And, I said, I’m really glad you had a good time. And, my night was great. And, she goes ‘Thank you. I’m glad you had a good time as well.’

“And, it has been on record, the things that I witnessed. And, it has been filed in investigations, that these were things that other people can corroborate, that they witnessed as well.”
Interviewer: “We’ve already heard what the report states, we’re hearing some different things out of you.”

Student-Witness: “Correct.”

Interviewer: “How do you kind of slice and dice..” 

Student-Witness interrupting: “Piece it together? Yeah. In my opinion this is somebody who is new to the college scene, this girl. And, possibly new to the attention that she is getting. And she, her friends have explained, she’s done some things and disliked what she did the next morning. It’s my understanding that she had the same experience and expressed to somebody else what happened and they in turn told her, well maybe this may have been this. And, from what I gather, she, anything that took place was something that she wanted and something that she was OK with. And, she vocalized that that was something that she was OK with.”

Interviewer: “What about you or your background made, is this so important to you to let everyone come out and know?”

Student-Witness: “I facilitated a class for the Women’s and Gender Studies department here. And, I focus a lot on sexual awareness and wellness having been in victim situations myself. I understand that there is a 3% bracket of women that lie about these situations and 97% of women do not. When I heard the discrepancies in the story, it was clear to me that this was a 3% situation. These are not distinct numbers, these are numbers that go up and down by point –five of a per cent. But, this is a situation where the alleged victim in play, was consensual, and the claims being made are not true. And, being a victim’s advocate and being in a situation where people may not have believed a story. It’s important to me that the truth is told. And, it’s important to me that nobody can say false accusations because that reflects badly when somebody has something real to say.” 

How often do events unfold like this? Who knows, but it does happen. One would expect that well-connected white male students faced with such accusations are afforded the right of “due process” when sent before an administrative hearing to a greater extent, especially if they can afford an attorney to represent them. Of course even if they “win,” that doesn’t mean that they are “not guilty” in the eyes of victim advocates; they might have their picture posted all over campus warning students to “watch out, this student is a rapist.” Innocent or not, it doesn’t matter; if it’s called “freedom speech” for “conservative” students to express racism, it is “freedom of speech” for gender victim advocates to make claims of an “epidemic” of sexual assault on college campuses, and use even false claims for propaganda purposes.

The English jurist William Blackstone famously said “all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer.” Perhaps it is stretching the truth to say that the opposite is true in regard to sexual assault accusations on college campuses, but Blackstone would certainly be appalled by the almost total disregard for the due process rights of the accused. And while there may not be an “epidemic” of false accusations, there have been enough of them to warrant a reevaluation of how far college administrators have bent their backs to give accusers every leverage to “prove” their allegations solely on their word.

DeVos’s rule change may or may not go into effect, or last past the Trump administration. But at some point some college or university is going to go too far and be sued for a particularly egregious case, perhaps one even going to the U.S. Supreme Court. In a case that will test the Fifth Amendment’s due process right and the Sixth Amendment’s right to confront one’s accusers and present witness, these are in fact at the heart of DeVos’ rule change, and I wonder if victim advocates really want such a case to advance to the Supreme Court—especially this one.