Amy Coney Barrett

Amy Coney Barrett on Due Process in Public University Sexual Misconduct Investigations

|The Volokh Conspiracy |

I thought I'd repeat a post I wrote up about this case last year, when it was handed down; see also Jacob Sullum's post from yesterday on this subject.

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From Friday's [June 28, 2019] Seventh Circuit decision in Doe v. Purdue Univ., written by Judge Amy Coney Barrett and joined by Judges Diane Sykes and Amy St. Eve:

After finding John Doe guilty of sexual violence against Jane Doe, Purdue University suspended him for an academic year and imposed conditions on his readmission. As a result of that decision, John was expelled from the Navy ROTC program, which terminated both his ROTC scholarship and plan to pursue a career in the Navy…. [We conclude that] John has adequately alleged violations of both the Fourteenth Amendment and Title IX.

The court concluded that, under Indiana law, university students have no property right in their continuing attendance at the university, and thus they can't sue for deprivation of property without due process. (Federal courts disagree on this question: "The First, Sixth, and Tenth Circuits have recognized a generalized property interest in higher education. The Fifth and Eighth Circuits have assumed without deciding that such a property interest exists. The Second, Third, Fourth, Ninth, and Eleventh Circuits join [the Seventh Circuit] in making a state-specific inquiry to determine whether a property interest exists.")

But the court held that Doe adequately alleged that he was being deprived of his liberty, on a so-called "stigma plus" theory: Purdue had been accusing him of a crime, and combining the stigma of this accusation with a one-year suspension, which led to his expulsion from the Navy ROTC program. (Mere alleged defamatory falsehoods aren't seen as deprivations of liberty for Due Process Clause purposes, but alleged defamatory falsehoods coupled with tangible government action often are.) And, the court concluded, this deprivation of liberty was done without due process:

John's circumstances entitled him to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rather than academic failure, and for an academic year rather than a few days. Yet Purdue's process fell short of what even a high school must provide to a student facing a days-long suspension.

"[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." John received notice of Jane's allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair. "[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights…."

John has adequately alleged that the process was deficient in other respects as well. To satisfy the Due Process Clause, "a hearing must be a real one, not a sham or pretense." At John's meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence.

And in a case that boiled down to a "he said/she said," it is particularly concerning that [Dean of Students Katherine] Sermersheim and the committee concluded that Jane was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement. It is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane's credibility.

Sermersheim and the Advisory Committee's failure to make any attempt to examine Jane's credibility is all the more troubling because John identified specific impeachment evidence. He said that Jane was depressed, had attempted suicide, and was angry at him for reporting the attempt. His roommate—with whom Sermersheim and the Advisory Committee refused to speak—maintained that he was present at the time of the alleged assault and that Jane's rendition of events was false. And John insisted that Jane's behavior after the alleged assault—including her texts, gifts, and continued romantic relationship with him—was inconsistent with her claim that he had committed sexual violence against her. Sermersheim and the Advisory Committee may have concluded in the end that John's impeachment evidence did not undercut Jane's credibility. But their failure to even question Jane or John's roommate to probe whether this evidence was reason to disbelieve Jane was fundamentally unfair to John.

The court allowed the Title IX sex discrimination to go forward as well:

[John has alleged facts, that], raise a plausible inference that the university discriminated against John "on the basis of sex[,]" … the strongest one being that Sermersheim chose to credit Jane's account without hearing directly from her.

The case against him boiled down to a "he said/she said"— Purdue had to decide whether to believe John or Jane. Sermersheim's explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible. Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words to the Advisory Committee. Her side of the story was relayed in a letter submitted by [Monica Soto] Bloom, a Title IX coordinator and the director of CARE [the Center for Advocacy, Response, and Education, a university center dedicated to supporting victims of sexual violence].

For their part, the three panelists on Purdue's Advisory Committee on Equity were similarly biased in favor of Jane and against John. As John tells it—and again, we must accept his account as true—the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account.

They made up their minds without reading the investigative report and before even talking to John. They refused to hear from John's witnesses, including his male roommate who maintained that he was in the room at the time of the alleged assault and that Jane's rendition of events was false. And the panel members' hostility toward John from the start of the brief meeting despite their lack of familiarity with the details of the case—including Jane's depression, suicide attempt, and anger at John for reporting the attempt—further supports the conclusion that Jane's allegation was all they needed to hear to make their decision.

It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled "Alcohol isn't the cause of campus sexual assault. Men are." Construing reasonable inferences in John's favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault. And it is pertinent here that Bloom, CARE's director, wrote the letter regarding Jane to which Sermersheim apparently gave significant weight.

Taken together, John's allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex. To be sure, John may face problems of proof, and the factfinder might not buy the inferences that he's selling. But his claim should have made it past the pleading stage, so we reverse the magistrate judge's premature dismissal of it….

NEXT: Poetry Monday!: "Dirge Without Music" by Edna St. Vincent Millay

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    1. “She is a good pick.”

      For what, your nose?

      1. C’mon, that just petty meanness. I mean, you impute vagueness into a clear comment given the context of the post, and turn it into what reads like a pathetic attempt at humor.

        1. Next, are you working up a good har har by the fact that I had a typo and forgot the “is” after “that”?

          1. Yes, *I’m* working up a good har har by making *YOU* make typoes.

    2. She wants to take away my guns. Therefore, she is a bad pick.

      1. What, exactly, do you mean by your comment?

  1. Lots to hate about how she’ll rule once she is confirmed. But nothing wrong with this decision. (Deliberately?) denying due process to a college student before suspension or expulsion ought to raise red flags for anyone who cares about accused people getting a fair chance to defend themselves.

    1. Lots to hate about how she’ll rule once she is confirmed.

      Can I borrow your crystal ball? Mine is at the cleaners.

      1. Really? Do you need a crystal ball to know you’d find lots to hate in the hypothetical SCOTUS rulings of, say, Glenn Greenwald?

    2. That was an Obama policy. Pushing to deny due process to (male) college students accused of sexual assault.

      I’m sure Kamala Harris can bring it back, with jailing journalists and making sure prisoners stay imprisoned longer because the state needs their cheap labor…

      (Look it up).

      1. “That was an Obama policy. ”

        Is this another case where “Obama” is a an adjective meaning “something you don’t like”?

        1. In 2011, Obama’s DoE issued a “Dear Collegue” letter that basically prompted the Universities to adopt the current stance of using the absolute lowest standard of evidence they could, but only for sexual assault, and to discourage actual questioning of witnesses….or else lose federal funding.

          https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf

          This was the result.

      2. Well you’re right. I’m liberal and even I have problems with expelling a guy on accusations alone.

  2. “…joined by Judges Diane Sykes and Amy St. Eve”

    An all woman panel, eh? Nice.

  3. The outcome sounds right.

    In general, I do not buy the theory that “texts, gifts, and continued romantic relationship” are necessarily inconsistent with a sexual assault, just as such behaviors are not inconsistent with a physical assault. Especially when a person lacks assertiveness and self-confidence. Confused behavior by someone who has been victimized isn’t uncommon. Especially when the abuse comes from someone they trusted.

    That said, the issue at this stage of the process isn’t whether anyone should believe John or Jane or who has more credibility, but whether John received enough process. It sounds like he did not.

    It can be an emotionally difficult process to tell the truth, and then be attacked for it in an adversarial proceeding. The concern that victims will be too embarrassed to undergo such a process, and the beneficiaries will be their rapists who will be freed and enabled to attack others is the concern that drives this protective behavior.

    The problem here is a serious one, and there are no perfect solutions. On the one hand, we don’t want defendants to be wrongly accused. On the other hand, we don’t want to make the process itself punishment for the victim / alleged victim (or the defendant, for that matter). It seems inevitable that if we expose victims to excessive harassment during proceeding, then we have the problem of people not be held accountable for sexual abuse and being in a position to revictimize. A “smart” sexual abuser would have a tendency to choose and groom their victims based on their weakness and lack of assertiveness.

    Another related issue is that the accused going on gallivanting around campus as if nothing even happened. This can be a form of gaslighting to the victim and contribute to a decision to not hold his or her perpetrator accountable. At the very least, serious accusations justify ex parte issuances supported by declarations made under penalty of perjury justify temporary protective orders.

    The problem of false accusations, although probably less common, is also difficult. Just as it is difficult to prove with certainty that an accusation is true, it is difficult to prove with certainty that it is false. Overall, most accusations are likely true, but that doesn’t mean that none are made that are ever false. In fact, that is why we require some level of due process in the first place.

    There is no perfect balance here. These are ultimately civil proceedings. The idea that someone has a property right to their education is not only not far-fetched, but likely understates the importance of education. Being deprived of an education is much more serious than being deprived of mere property.

    One solution that may help us here is the existence of online education. Rather than suspending accused students entirely, it may make more sense to ban them from campus and require them to complete their education online. This would protect the campus community from their presence while enabling the person to finish their education.

    After all, the point of campus disciplinary proceedings is not to deprive the accused of their education (although that might be a collateral consequence in some cases where an accused person isn’t resilient in finding other opportunities). Even if someone is not only accused of but actually guilty of rape, why shouldn’t they be able to finish their education online? Ultimately, the purpose of campus disciplinary proceedings isn’t to finally adjudicate the guilt or the innocence of the accused, but to protect the campus community. It seems that if the community can be protected while imposing less costs on the accused, whether innocent or guilty, that this would help address due process concerns.

    1. Nice analysis.

    2. “Another related issue is that the accused going on gallivanting around campus as if nothing even happened.”

      If he’s innocent, nothing even happened.

      1. “If he’s innocent, nothing even happened.”

        Unless of course, something happened but it doesn’t happen to be the offense claimed.

        1. Unless of course, something happened but it doesn’t happen to be the offense claimed.

          You mean, like…they had coffee together?

          1. The only possibilities are rape or coffee.

          2. “You mean, like…they had coffee together?”

            Yeah, that’s exactly what I meant. They might have been consuming stimulant drugs together. Either coffee or meth, could be anything with the kids these days.

        2. “Unless of course, something happened but it doesn’t happen to be the offense claimed.”

          Expel men. Even if you don’t know why, he will.

          1. “Expel men. Even if you don’t know why, he will.”

            Sounds reasonable. And criminalize all sexual activity between unmarried persons, so we don’t have any of this “it was consensual” nonsense.

    3. A key point here:

      Their breakup was in January of 2016.

      The incident was alleged to have occurred in November 2015.

      She made the complaint in April 2016.

      If we we even believe the incident happened as described, she evidently regarded it as sufficiently minor at the time that she kept the relationship up for months, and didn’t bother reporting it for half a year. Why should she be entitled to revise that assessment months after they parted ways?

      At some point, you have to say, “Why should we believe it happened, if you didn’t act like it happened?”

      Imagine that, instead of sexual assault, and a man and a woman, it was two guys. They were friends, drifted apart, and then, out of the blue, Bob claims that Jack punched him half a year earlier. No evidence, not contemporaneous report, just a bare assertion half a year after it supposedly happened. Would anybody credit it?

      We have to start treating sexual assault more like a normal crime, with the same standards of evidence.

      1. Agreed . . . and with greater consequences, such as imprisonment rather than removal from a class, or expulsion from campus without refund rather than training classes and ‘stay away’ requirements.

        Prosecutions should be more common. Leniency in the form of informal handling seems to be no longer appropriate.

        1. “Leniency in the form of informal handling seems to be no longer appropriate.”

          It was never appropriate. Folks pushed to get schools to investigate them instead of courts in order to circumvent due process.

          1. Groups say that trials are to adversarial. Well I say sorry it’s designed to be. My worry is more women will go this route rather than file charges leaving the guy in legal limbo for years.

            1. They already do — if they can. But it’s a lot harder to lie to the (often female) detective who’s interviewed enough real rape victims to see through a charade.

        2. Wow, Reverend. We actually agree on something.

          Let’s bring this to court. High standards of evidence. High punishment. There is no reason that accusations of rape should be punished with suspension or expulsion instead of prison. There is also no reason that being accused of rape in a school setting should deny you access to defense and lawyer.

          I still do not understand how this absurdity came about that schools with no legal expertise or understanding became in charge of criminal prosecution, being judge, jury, and executioner.

      2. “We have to start treating sexual assault more like a normal crime, with the same standards of evidence.”

        Does that mean treating all sex like a crime, just to make sure we don’t miss any crimes?

        You are apparently surprised at the notion of wanting to keep harsh conditions from falling upon one’s friends, and think the solution is to make the harsh conditions harsher.

      3. Actually she didn’t make the claim. It was made for her.

        1. I have to assume it was made by her at some point, unless you’re suggesting somebody just made it up without her involvement.

        2. That is a final, important point. The only testimony presented was hearsay. Yes, it was a report to what is essentially an officer, but that is not admissible in court by itself. The actual witness must testify

  4. Sexual assault allegations will always be hard to prove. The only way to eliminate that is to eliminate the presumption of innocence. That’s obviously an unacceptable outcome.

    1. That’s pretty much what the Title IX “investigations” do.

      1. They have no power to compel production of evidence.

        1. In this case they didn’t even look at evidence that was offered nor even interview the victim.

          1. “The new standard is that sexual offenses are so heinous that even innocence is not a defense” – Alan Dershowitz

        2. Then they shouldn’t be doing investigations at all. All they should be doing is notifying the police and then getting out of the way. If the police investigation or the DA determines that there isn’t enough evidence to go forward, that should be the end of it.

          1. Would you take the same attitude with regards to, say, an employer and an accusation of theft? (i.e., if an employee was accused of theft but the police didn’t have enough evidence to pursue a criminal case, does that mean that the employer should be forced to keep employing the person?) Does the answer change if the employer is a government agency?

            Criminal cases have a high burden of proof for good reason; I don’t think that means that the same standards of proof ought to apply in other situations evaluating the same behavior. Now, in this particular case, the process and outcome seem obviously unjust and the court’s decision is correct, but that doesn’t mean that there’s not some in-between ground that better balances the various concerns here.

            1. “if an employee was accused of theft but the police didn’t have enough evidence to pursue a criminal case, does that mean that the employer should be forced to keep employing the person?”

              Of course not. Employment is employment at will. They can fire you if they dreamt that you stole something. But that shouldn’t be the case for administrators of public Universities.

              1. Or private universities for that matter. In my opinion, there is enough government involvement in the educational complex that even private universities should b subject to some constitutional constraints, much like the company towns in the famous Marsh v. Alabama case.

              2. So, what if a university thinks a student has violated an honor code but don’t have “beyond the shadow of a doubt” proof? Hopefully it’s not controversial that if a school can expel a student for cheating on a test, they can expel someone for raping another student. What’s appropriate level of evidence and evaluation? Like I said before, it’s obviously not what Purdue in this case, but it seems not correct that cops have to be able to charge and convict on a criminal case either.

                1. “Hopefully it’s not controversial that if a school can expel a student for cheating on a test, they can expel someone for raping another student.”

                  I would be vary wary of allow a system where, if they suspect you of a crime but can’t prove it, they deny you access to public benefits. They also do it with drugs and public housing, which they shouldn’t.

                  But in any event, although Title IX purportedly requires schools to investigate and punish sexual assault, it is a terrible interpretation of Title IX and a terrible policy. This is because schools are terrible at investigating and punished sexual assault. Calling the police should satisfy school’s Title IX obligations.

                2. Not “beyond shadow of doubt” proof is not the same as “no evidence at all.”

                  1. Surely “no evidence at all” would be “not ‘beyond shadow of doubt’ evidence”???

                    Obviously, we have to blame God for this. He put a tamper-proof seal on the thing, but it’s only good for one use. That’s defective product design.

                  2. Yes, that is literally my whole point. The criminal justice has a burden of proof that is probably not the right one for resolving questions of on-campus conduct, so your previous suggestion that the right answer is to just call the cops and otherwise ignore the problem doesn’t seem any more correct than what Purdue did here.

                    1. For sexual assault allegations, it does. Due to the nature of the offense, the seriousness of the stigma, and so forth.

                    2. So, once again, let’s compare to an honor code violation: do you think the school should have to adhere to a different standard of proof for someone cheating on a test versus an allegation of rape? It seems crazy to me that anyone would think that a university can be equally convinced that one student is fudging their academic work and another is raping other students, but they’d have to keep the latter in school.

                    3. The difference between the two is that you can be pretty sure someone cheated on a test without being absolutely certain. With sexual assault, there’s either evidence or there’s not. And 99% of the time, it’s just coming down to the word of the two parties.

                    4. That’s not true at all. Sometimes it comes down to he said/she said, but in theory even that could be sufficient to prove criminal guilt if one party is a lot more credible than the other.

                      Contrariwise, there is all sort of other evidence potentially available: physical evidence, testimony of people who may have witnessed some or all of the interactions (e.g., the roommate in the Purdue case), circumstantial evidence like whether the people kept dating after the claim of rape, etc.

                      If you’re willing to accept a standard like preponderance of the evidence or more likely than not for other types of on-campus discipline (including potentially criminal actions like theft), it’s absurd to impose a higher standard for one particular violation that is actually a lot more heinous.

                    5. And the left says that previous interactions mean nothing. What’s your point?

                      And on the other contrary, more serious things should have a higher standard.

                    6. What’s this got to do with what “the left” thinks? I’m asking a pragmatic question about how universities should be able to manage their student bodies.

                      You are correct that there should be a higher standard of proof for a more serious punishment, but if the punishment is the same (expulsion or suspension) then it makes zero sense to have a higher standard of proof for a more serious violation triggering that penalty. By your logic, a university would be justified for kicking someone out of a dorm for using marijuana recreationally, but if they’re dealing coke to half the school then they get to stay until they get convicted of a crime. Or if OJ had murdered someone while he was at USC, they’re not allowed to kick him off the football team because he managed to hire a good defense lawyer.

              3. But there is legal liability if they tell anyone that was why they fired you…

          2. “Then they shouldn’t be doing investigations at all. All they should be doing is notifying the police and then getting out of the way. If the police investigation or the DA determines that there isn’t enough evidence to go forward, that should be the end of it.”

            That’s remarkably stupid. Let’s turn over all the civil cases currently before the nations courts to the police. If they don’t want to deal with them, then just drop them with no recourse.

            1. Except this isn’t a normal “civil case,” and you know it.

              1. All Title IX cases are civil cases.

                1. Yeah, and they come with them a basic inability to get your credits that you’ve earned and paid for mean anything. Not to mention the stigma. It’s not a standard civil case, and you know it.

                  1. It’s a standard civil case.
                    Not sure what “inability to get your credits” you’re talking about. If you have so ordered your life that a claim against you is credible, whose fault is that?

                    1. WTF are you blabbering about? If you are expelled, unfairly, two years in, your first 60 credits are worthless. They’re only worth anything as part of a degree, which the school is denying you. Unless you find another school willing to take you in and accept your transfer credits, the school has basically stolen your money, and your time.

            2. Rape is not a civil case. It’s criminal. And the damage that an accusation does to his life, reputation, his family and his mental health are enormous that alone should give him the right to due process.

              1. Rape can give rise to either a civil case or a criminal one.

                1. Civil suits have countersuits.

      2. Exactly. That “he said she said” cases are hard to prove is a feature, not a bug.

        1. Depends on the burden of proof. In civil cases, it’s “preponderance of the evidence”.

          1. Yes, and explain how that would work practically in a sexual assault case?

            1. The same as in any other case. Each side gathers the best evidence they have and puts it forward. The factfinder considers the evidence, including assessing the credibility of the witnesses presented, and picks a loser.

    2. I agree with Aktenberg. The Apocalypse is nigh.

    3. An alternative would be to eliminate the presumption of a truthful accusation…

      1. Whoa, whoa, whoa. Who are you to upend centuries of tradition and legal jurisprudence to have the accused be considered innocent until proven guilty?

        1. Thing is, when it comes to rape the history has been you don’t believe the woman unless she brought some corroboration. Not just presumed innocent, but presumed not worth investigation.

          That’s the problem being overcorrected here.

          1. Is there any other crime where you don’t need proof a crime occurred?

            1. It depends on what you mean by “proof”. Others may know criminal law better, but I’m under the impression that lots of cases are brought with no evidence other than a single eyewitness’s testimony.

              1. Um, no, I can’t think of any situation where that’s the case. Consider the claim “I saw Kavanaugh dump the body.”

                Probable cause to start the investigation and search the dump site? Certainly.
                Find a dead body but little other evidence. Is your claim enough for a conviction? Maybe.
                No body found there (or anywhere else)? You are dismissed as a crank – probably rightly so.

                You might win a conviction on a single eyewitness’s testimony but there first has to be at least some objective evidence that a crime actually occurred. You need the body.

                1. “You might win a conviction on a single eyewitness’s testimony but there first has to be at least some objective evidence that a crime actually occurred. You need the body.”

                  I was on a jury that convicted based on one witness’ testimony. The charge was DUI, and the complaining cop explained why he stopped the vehicle, and how he found the defendant in the car and concluded that he was too impaired to drive. It didn’t hurt the prosecutor’s case that when the car was finally stopped, it was facing the wrong way in a drive-through lane at the local fast-food joint.

                  1. If the witness is a cop then yeah it’s easy to convict. But not if it’s the average joe off the street.

                    1. YMMV. Not all cops are credible witnesses.

                    2. There also is the “implied consent” law…

                    3. “There also is the “implied consent” law…”

                      There is that. The driver can be compelled to blow into the breathalyzer with no fifth-amendment right violated because of implied consent. But it’s still the same cop sitting in the little chair, reading his notes to say what the breathalyzer reading was.

                  2. “it was facing the wrong way in a drive-through lane at the local fast-food joint.”

                    That’s called “evidence”, and would include the two truck driver who removed the vehicle from there, along with (assuming it was open) employees of said fast food joint.

                    1. “That’s called “evidence”.
                      Sure, it came from the testimony of the police officer.

                      ” would include the two truck driver who removed the vehicle from there, along with (assuming it was open) employees of said fast food joint.”

                      Had any of these been presented, it would have been evidence, yes. But juries only get to see the evidence that’s actually presented to the court.

                2. You definitely don’t need a body to win a murder case. Why do you think that? All those mafiosos are really on to something if by getting rid of the body they 100% ensure that they are never going to get convicted of murder.

                  Whether a jury is going to buy a case reliant only on victim testimony is another matter, but looking online it seems like there’s plenty of precedents for assault or robbery cases to be brought purely on the say-so of the victim.

            2. I’m not talking about bringing charges, I’m talking about bothering to open an investigation. Even when a rape kit is taken, police routinely didn’t bother to send it in for analysis.

              Or maybe they investigate the woman.

              https://www.theatlantic.com/magazine/archive/2019/08/an-epidemic-of-disbelief/592807/

              1. “maybe they investigate the woman”

                this was back in the days when “but she was asking for it” was considered a valid defense.

              2. I used to know a guy who took Rape Kits from hospitals to Labs. The only reason they do not get processed is because she needs to file a complaint. Or she backs out of it. At which point the kit stays frozen till she does. Which is a risky proposition. The longer you wait the more degraded the DNA becomes.

                1. OR the identity of the DNA “donor” is already known — the issue involves if the sexual intercourse was consensual or not…

            3. “Is there any other crime where you don’t need proof a crime occurred?”

              Sure. Cops often won’t even bother to take a missing persons report. Unless the missing kid is white and blonde.

                1. Missing persons reports? They tell people that they won’t even take a report until the person has been missing for a couple of days.

          2. “That’s the problem being overcorrected here.”

            I don’t know if that’s really a problem. Pretty much everyone agrees that rape is sui-generis and should be treated that way be the justice system. We just dicker over the details.

            Of course, all accusations should require corroboration, not just rape.

            1. No – you tell the police you’ve been mugged or assaulted and they take a look.

              We’ve been getting better lately, but that wasn’t the case for rape for quite a long time.

              1. ?? Dude, there were rape investigations, prosecutions, and convictions before the me-too movement. They just used to require proof.

                1. And there are plenty of people, myself included, who have reported burglaries and robberies where the cops did nothing.

                  1. For a while, police in Portland, OR wouldn’t even send a cop to take a report of a stolen car. they’ve been having recruiting enough officers to be “full staffed” for decades. The suburbs pay their cops better.

                    1. Treat them better, too….

                2. Yeah, TiP, I wasn’t talking about every single report of rape. But it is not particularly disputed that rape was oftentimes handled badly by law enforcement.

                  https://www.wesa.fm/post/pittsburgh-police-dismiss-nearly-one-third-rape-cases-unfounded#stream/0

                  1. ” it is not particularly disputed that rape was oftentimes handled badly by law enforcement.”

                    In particular, by campus law-enforcement, who may or may not be sworn law-enforcement officers certified by the state. They may be mall cops who moved up a half-rung on the career ladder.

                  2. “But it is not particularly disputed that rape was oftentimes handled badly by law enforcement.”

                    Maybe not in your bubble.

                    Law enforcement often handles lots of things badly. How many rape cases should be dismissed as unfounded?

                    1. ” How many rape cases should be dismissed as unfounded?”

                      Before investigation? Close to zero.

                    2. “Before investigation? Close to zero.”

                      ?? Sarcastro linked to an article about a particular police department that closed 1/3 of rape cases as unfounded, after investigation. The implication, without evidence, was that this was too high.

                    3. Both things can be true.

            2. We pretty much ever talk real rape. At worst a question of whether sex was completely consensual because one party or both were too inebriated to consent.

              1. ” At worst a question of whether sex was completely consensual because one party or both were too inebriated to consent.”

                That’s a real rape.

                  1. If the party was truly so inebriated that she couldn’t consent, that’s rape.

                    But many people nowadays claim that consent doesn’t count if the (female) party was inebriated, which is woman-infantilizing bullshit.

                    1. I’m not sure that mere inebriation is the general claim – the rape stories I’ve heard usually include the woman passing into and out of consciousness.

                      There are some trainings given to students about consent and alcohol that go further, but I don’t think that’s an awful idea wither.

                  2. “No, it’s not.”

                    Sex without consent is how rape is defined. If you don’t like it, take it up with someone who cares about your rich fantasy life.

          3. “Thing is, when it comes to rape the history has been you don’t believe the woman unless she brought some corroboration. Not just presumed innocent, but presumed not worth investigation.”

            I’d say that’s my stance in regards to ANY crime, not just rape. Give me some reason to believe it actually happened, to believe it’s even theoretically possible it could be proven to have actually happened, or go away.

        2. “Who are you to upend centuries of tradition and legal jurisprudence to have the accused be considered innocent until proven guilty?”

          The accuser says “a crime happened”, the defendant says “nuh-uh”. so obviously we investigate the accuser, because they’re probably engaged in criminal activity, or they wouldn’t be making accusations. Everybody knows only guilty people accuse others of wrongdoing.

          1. Yes, and if there is no evidence to prove one way or the other which of the accuser or defendant is telling the truth, it should be resolved in favor of the defendant, and that should be the end of it.

            And that will be the case in nearly all sexual assault claims.

            1. First, we have to get rid of any arbiter who’s decided the case in advance, and that’s the end of your involvement.

      2. . . . coupled with an automatic report to police and the district attorney.

        1. “. . . coupled with an automatic report to police and the district attorney.”

          Exactly. This is who ought to be handling these cases.

          1. “Exactly. This is who ought to be handling these cases.”

            They ought to be handling the criminal cases if any arise, but Title IX is not criminal law.

            1. And Title IX should not lead to any investigations or anything beyond school funding.

  5. Hmmm. According to Accuser’s rights group Know Your IX, Barrett has, “misgendered transgender women by claiming they are ‘physiological males.'”

  6. The problem is, Colleges are not a proper venue for assigning criminal guilt (but they are a proper venue for “adjudicating” some civil wrongs between tenants.)

    You could move the latter to the courthouse if you really wanted to, but that would be extremely inefficient. You’d have a case that involved studentA suing the school for failing to provide a safe educational environment, and then the school suing studentB for being the unsafe part of the educational environment. Then the courts would render their judgment after however much process is due. The thing is, usually the relief sought by studentA is “could you keep that SOB out of my dorm, please?” which the school could provide itself, without needing a court order. The fact that the school usually sees it as a good idea to keep that SOB out of everybody’s dorms is where the lack of due process becomes objectionable. Gosh, whose idea was it to give women the right to file lawsuits?

    1. Why not just draw & quarter random male students?

  7. Barrett simply wants to adopt the Handmaid’s Tale regime as the law of the land (minus the execution of Catholic priests). I can’t wait to get my government-furnished handmaid courtesy of Justice Barrett!

    /sarc

    1. You know, if you hadn’t of added the /sarc, I would have trouble telling if you were serious, as that’s a common enough lefty take on Twitter.

      1. My only concern is that with the Post Office being as slow as it it, my handmaid might take a long time to reach me, and she’ll be cranky when she arrives, especially if she’s not shipped right side up.

  8. Since the circuit courts are split, it’s possible this’ll eventually go to the SC.

    Would Judge Coney (Coney Barrett?), have to recuse herself (if she indeed is made a Justice)?

    1. It’s my understanding that SCOTUS justices don’t ever HAVE to recuse themselves. As a matter of form, they often do if they heard the case on the circuit level, but if it’ll lead to a 4-4 vote, I could see her not.

      1. Didn’t Kagan make exactly that call in a case heard last year?

        No, the timing wouldn’t work. It must have been further back. I wish I could remember the case. At the time, the decision to not recuse was seen as only mildly controversial.

        1. Kagan recused herself from a bunch of cases that she had worked on as SG.

          1. Which is quite different from hearing it as a circuit judge in a diversity of circuits case.

  9. The striking thing is the staff from Purdue didn’t even try to make it look like due process. Two out of three panel members admitting they didn’t even read the report is amazing.

    1. That’s what happens when people don’t view what they do as a crime…They’ve been doing it so long without getting caught, that it’s just normal.

      It’s like the massive absentee ballot fraud in Minnesota. They’re just bragging about it.

    2. That’s what surprised me. It’s not just a case of a kangaroo court. It was an insulting, absurd, parody level court. The only thing they could have done worse is announce guilt before the hearing even began.

      The fact that a district court upheld the verdict is the most baffling thing of all this. If Judge Barrett’s summary is anywhere near accurate, I have to question the district court’s ruling. I wouldn’t find this acceptable in a schoolyard bullying case with the punishment of a detention. I certainly don’t find is acceptable in a case where a man loses his entire college education based on a second-hand accusation and refusal to hear evidence

  10. “I find by a preponderance of the evidence that [John Doe] is not a credible witness. I find by a preponderance of the evidence that [Jane Doe] is a credible witness”

    That’s not how it works! That’s not how any of this works!

    1. That’s exactly how it does work. It just doesn’t usually get written down.
      The factfinder assesses the credibility of the witnesses in taking in their testimony. If the factfinder is a jury they each do this independently of each other. The only thing that gets written down is the final judgment.

      1. Factfinders make findings based on some evidentiary standard about the credibly of individual pieces of evidence, but don’t write them down? No, that’s not how it works.

        1. The factfinders decide who they find credible or not, and they don’t write it down. That this is news to you suggests that you’re wasting your time reading a legal-themed blog.

          1. Sigh. Quantums of proof don’t apply to individual pieces of evidence. That this is news to you…

            1. The plural of quantum is quanta. So you aren’t even using the terms correctly when you’re trying to correct me.

    2. Here, Jane Doe apparently never did testify. Someone testified on her behalf. Which would be considered inadmissible hearsay in a court of law, but is considered persuasive evidence at Purdue.

    3. The problem here, the smoking gun that makes this such an unusually easy case, was that they didn’t actually hear any evidence at all before saying this. If they had bothered to hear evidence, this would have been a different case.

      I could be wrong. But I suspect most school hearing boards are not this sloppy, stupid, or blatant.

      1. Courts sometimes render judgment based solely on the pleadings.

        1. But when they do, they don’t claim to have based their decision on a credibility determination, as the Purdue hearing officers did here.

  11. Hopefully SCOTUS under Barrett will find that Title IX doesn’t require schools to investigate sex crimes themselves, but can satisfy their obligations by referring reports of sex crimes to the police.

    1. At this point, to make much difference, the Supreme court would have to rule that Title IX affirmatively requires schools to report crimes to the police rather than investigating themselves.

      Obama’s letter got the ball rolling, but the schools LIKE this rolling ball, they’re not going to stop rolling it without serious push back. And “You don’t actually have to do that” would be viewed as permission to continue.

      1. Title IX imposes liability on the educational institution for failing to provide a suitable educational environment. A substantial portion of rape cases on campus are related to alcohol abuse, which is why the colleges officially have no-alcohol policies. But the unofficial policy is usually “you do whatever you want as long as it doesn’t actually damage the buildings.”

        1. Another reason why Title IX should be repealed and women generally kept out of the professional world.

          1. Better still; keep the idiots out. I’m sure you’ll be fine.

  12. This was an easy case. The hearing Purdue provided was such a sham that it provided essentially no process at all, believing a bare accusation, not only not bothering to hear any of the considerable amount of evidence the student had amassed corroborating his innocence, but not bothering to hear anything the accuser had to say either. It was therefore an easy call that, having never heard from either party, the school could not possibly have made a credibility determination as it claimed.

    So it’s not surprising the decision was unanimous. The student’s claim that the hearing board’s credibility decision was based solely on the basis of sex was highly plausible. The school’s claim of a legitimate basis for its decision was as pretextual as you can get.

    It might be a good idea to offer a Barrett opinion on a more difficult or controversial case.

  13. It is my opinion that the Prude ruling is correct. The university did not given plaintiff against the university adequate representation nor resources to be able to defend himself in this rape charge. Now if the university had given the defendant in the rape case the evidence that was against him the university could have informed him that the school could handle the case and not involve the judicial system which would leave him with a criminal conviction if he chose to reject the school’s offer. He would have had the choice of defending himself in a court of law along with the potential criminal conviction or take the school’s punishment. But the university did not do that. At that time any time a man had charge of rape lodged against him the man was automatically guilty and the man was not given the opportunity to counter the charges nor defend himself. So the ruling is true to the law.
    Furthermore I don’t think the school is the proper venue to rule in a rape charge. When a student has a charge of rape lodged against him (or her) all the information should be turned over to the appropriate legal authorities as well with the accused. That is the only venue that can lawfully handle such charges.

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