Rapist Or Innocent? Pick One, CU

Samantha Harris at FIRE is making administrators at the University of Colorado, Boulder, very sad.

Last week, the University of Colorado Boulder (CU) settled a lawsuit brought by a male student who was accused of sexual misconduct. What we know about the settlement should concern everyone who cares about how colleges handle claims of sexual misconduct, because it illustrates who universities are really looking out for: themselves.

Strong stuff.  After all, isn’t compromise a virtue in itself?

On November 7, 2014, the plaintiff, who went only by the pseudonym “John Doe,” filed a complaint against the university in federal court, alleging that the university discriminated against him on the basis of sex, in violation of Title IX, by denying him basic due process in the course of a university judicial proceeding against him for sexual misconduct. In addition to claiming the university used unfair procedures against him, the student maintains that the sexual encounter in question was consensual.

The backlash of campus disciplinary procedures that fail to provide due process to the accused is that they get to go to grown up court where real judges and real juries get to make real decisions that aren’t dictated by the gender politics of “survivors.”

When “John Doe” did this, a collective gulp must have gone through the CU administration. So they settled the case, starting with a payment of $15,000 and going on to the nitty gritty:

Here’s the critical part:

“In response to any question about whether Mr. Doe would be welcome back to the university, the university will respond in the affirmative,” CU officials write in the settlement agreement.

[…]

If any party, such as another college or university, asks CU about John Doe’s disciplinary record, CU has agreed to say only: “In fall 2013, John Doe (his actual name will be stated) was subject to a student conduct investigation and was found to have violated two code provisions.”

Beyond that, the university will direct all inquires to John Doe and will not provide further information unless he signs a waiver.

So to sum this up, despite continuing to maintain that Doe committed sexual misconduct, CU will tell anyone who asks that he would be welcome back at the university, and, if asked directly, will be intentionally vague about the details of its misconduct findings.

In case the detail failed to smack you in the face, the upshot of the settlement is one of two things: either an innocent male has been expelled, causing outrageous upheaval to his life, or a rapist will have his tracks covered by CU’s dissembling.

While there is a mechanism by which the next school would at least know that a problem exists, even if the nature of the problem isn’t revealed, there is also an excellent chance that the initial response, that he would be welcome back to CU, would be more than sufficient to conclude that whatever the problem, it couldn’t be too big a deal. You know, like rape.

How Solomonic of CU to cut this deal.  It bails the university’s butt out of a lawsuit for its failure to provide its male student with due process, but does so at the expense of everyone else.  Just because the student was denied due process does not mean he didn’t rape.  Got that?  Sometimes, the systemic denial of fundamental fairness means a rapist walks.  And if that’s the case here (not saying it is, but impossible to say it’s not), the result is that CU’s settlement allows a rapist to get into another university with its tacit blessing and rape again.

Was that what you were trying to accomplish?

While CU’s Title IX attorney, John Clune, recognized the problem, the University’s chief legal officer, Patrick O’Rourke, saw it differently:

[W]e believe an agreement that saves the university tens of thousands of dollars in defense costs was a prudent use of the university’s resources.

Money talks, baby. Higher Ed doesn’t live on feminist love alone.

One of the principal thrusts of FIRE is that campus disciplinary tribunals are the wrong place to determine whether the crimes of rape or sexual assault occurred. They aren’t good at it, from investigation to determination. But then, they aren’t constrained by all that technical legalish stuff.

So much of the current conversation around universities and sexual misconduct proceedings paints universities as the kinder, gentler alternative to law enforcement—a place where traumatized students can turn and have their interests looked after by people who care. And right now, because of the tremendous pressure universities are facing from the federal government to come down harder on sexual misconduct, it may appear to the untrained eye as if universities really are more concerned than law enforcement with the well-being of alleged victims, at least with the rate at which they’re punishing the accused.

Aside from the kinder, gentler handling of survivors, real courts use these things called “laws,” that include these things called “words,” that have these things called “definitions,” that don’t bend to the feelings of survivors.  And then there are the police, who use this stuff called “evidence” to support the accusations, as if they doubt that any cry of rape needs any further proof of its truth.

But it’s important to remember that at the end of the day, universities are businesses, and just like almost any business, they will look after their own interests first. And that reality needs to be a part of every conversation about whether universities should really be handling claims like this in the first place.

Yet if a woman is raped, because none of the arguments in favor of due process to the accused is any indication that rape doesn’t happen or that rape isn’t a horrific crime, the same gentle hands into which her life is entrusted may be the first to throw her to the wolves when the potential for the forced reallocation of scarce resources is on the table.

The settlement here is a prime example of how the concern for the well-being of students, whether accuser or accused, falls in the face of a challenge in the real world.  Sure, CU could have insulated itself by crafting procedures that provided meaningful due process to the accused, but then it would have had to endure the cries of misogyny that reflexively follow any effort to give an accused student fundamental fairness.

On the other hand, had the claim been brought to a real court, it might have had to go through the unpleasantness of actual scrutiny, but its outcome wouldn’t have put a potential rapist back onto a college campus rather than cost CU the price of defending its indefensible system.

 

9 thoughts on “Rapist Or Innocent? Pick One, CU

  1. Keith Lynch

    How is this compromise fundamentally any different from a plea bargain? I’ve never understood why plea bargains aren’t shocking to everyone’s conscience. They’re egalitarianism run amok: A way of treating guilty and innocent exactly alike, which is of course unfair to the defendant if he is innocent, and unfair to the victim if he is guilty. And last I heard 97% of all cases in the federal system were settled with plea bargains. State courts aren’t far behind. So fundamental fairness and due process are all but extinct in the “grown up court.” So why shouldn’t universities behave the same?

    1. SHG Post author

      Your premise is flawed. While all resolutions have some similar aspects of compromise, this isn’t like a plea bargain at all.

  2. Matt B

    In regards to the conflict of interest the universities have with both the victim and accused, in many ways it seems that the situation is more analogous to workplace sexual harassment than the neutral arbitrator/courtroom analogy that seems to be the way universities consider their role. Something that many college-educated, academically indoctrinated people may not see at first blush due to the way universities present themselves to their students.

      1. Matt B

        In both cases the organization has an interest in avoiding liability for itself, and investigating someone it may have little interest in taking action against (an employee in the one case, and a customer in the other). And in both cases even the accusation can be damaging to its reputation.

  3. John

    “it illustrates who universities are really looking out for: themselves”

    Wait, was there anyone who did not realize this back since, oh, they were 16 or so? When they don’t want to get involved in an alleged rape on campus, they are looking out for themselves. When they refuse to investigate and declare an allegation not credible, they are looking out for themselves. When they railroad an accused student, they are looking out for themselves. When they investigate and come to a reasonable decision, they are looking out for themselves.

    They want Department of Education funding, a good reputation as an institution that takes safety and integrity seriously and do not want administrators to have to make reports to the DoEd to explain what they are doing to keep students safe. They want to avoid legal liability. If anyone else is helped by their actions, it is a happy side effect.

  4. Greg

    Timely commentary given the introduction of Gov. Cuomo’s “Enough is Enough” legislation. A due process nightmare if ever there was one. No definition of sexual “activity” and “violence”, the proscribed conduct, which are used interchangeably. Sex “acts” is defined as “including but not limited to” a number of acts not defined in the penal law. “Lack of consent” includes any impairment by alcohol or drugs, and impairment isn’t defined. The accused is not presumed innocent, not entitled to counsel, does not have a right to remain silent. The accused is strongly encouraged to cooperate, on pain of academic purgatory. Of course local law enforcement is required to be involved in this process. On the other hand the accuser is wrapped in the moral equivalent of sainthood, the “victim/survivor”, Joan of Arc.
    When you start a witch hunt, expect to find some warlocks.

    1. SHG Post author

      Timely, perhaps, but this post isn’t about Cuomo’s legislation. If you think this is the moment in time to discuss it, you should start a blog where you can pick the topic for discussion.

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