Andrew Miltenberg won another big decision against Syracuse University. His client was John Doe. They’re always John Doe, and the accuser is Jane Doe, no relation. There are two things about this win that stand out. The first is that Judge David Hurd of the Northern District of New York recognized the inherent bias in “trauma-informed” interrogation.
John also contends defendants were influenced by biased sexual assault trauma training they received, specifically “trauma-informed investigation and adjudication processes,” which is required by federal and New York State law. The goal of which, according to the U.S. Department of Education’s Office of Civil Rights (“Office of Civil Rights”), is to ensure “the protection of girls and women.” Recipients of this type of training are taught that “inconsistencies in a complainant’s story are a direct result of the trauma,” that is, that they are “a natural byproduct of sexual assault as opposed to an indicator that the complainant’s story may lack credibility.” Plaintiff contends that this “bias in favor of the female accuser” is the only explanation for the Conduct Board’s findings in light of Jane’s inconsistent allegations.This bias, according to John, is further evidenced by the Conduct Board’s finding that Jane’s “actions throughout the process are consistent with a traumatic event such as she described in her statement.”
And as Jane Doe’s story twisted and turned, it was the “trauma informed” approach that provided an excuse for believing it, no matter what, because it provides an excuse for anything, any inconsistency, any reversal of allegations. Anything.
As a result of his bias, Investigator Jacobson assisted Jane in developing her story and accepted, without question, major changes in that story, including the fact that she first said she consented to vaginal sex and then changed her story to say that while she initially consented, she withdrew her consent.
The use of the “trauma informed” approach is pervasive on campus, compelling Title IX investigators, already indoctrinated to the “believe the woman” cause, to rationalize their anti-male bias and find the accuser credible no matter what the evidence shows. But in his telling of this decision, KC Johnson made a critical observation.
As often occurs in strong opinions, acc’d student’s complaint presented strong evidence of innoncence. Opinion (below) from Judge David Hurd (Clinton nominee); case argued by Andrew Miltenberg, @NMLLPLaw:https://t.co/wCQV4A6i9d pic.twitter.com/kPpXSDCyuS
— KC Johnson (@kcjohnson9) May 8, 2019
In this case, evidence that Jane fabricated her accusation was, to be blunt, almost impossible to ignore, except for the trauma-informed Syracuse Title IX investigator, Bernerd Jacobson, whose super power was never letting facts get in the way of finding the male guilty.
But in this case, it was Jane Doe who blew her accusation by constantly changing her story, reinventing what sex was consensual and what was not, what sex happened and what did not. As KC notes, there was strong evidence of innocence here, and Judge Hurd’s strong decision of bias and impropriety stands on that foundation.
Do only the putatively innocent deserve due process? Are rights reserved only for the Good Johns? Is bias only evident when Jane can’t keep her story straight?
Outside of the law, perceptions of good and bad cases are generally built on whether we think the winner was in the right and the loser wasn’t. It’s only natural to feel more sympathetic toward a person who has a strong claim to innocence. Anything else would feel “unjust.”
But then, what of the defendants who almost certainly committed murder, but whose constitutional rights were violated by a warrantless search and seizure? Sure, he did it. He’s a killer. There is nothing sympathetic about him. And yet, even a killer is entitled to his Fourth Amendment rights. Why not a student?
Among the trends that are becoming increasingly evident in suits over Title IX adjudications that are biased, that deny due process, is that the male with either strong evidence of innocence, or the female with strong evidence of fabrication, will get a far more sympathetic hearing and decision than cases where the factual dispute is “she said/he said.”
When the woman claims she didn’t consent, or was too drunk to consent, but there is insufficient extrinsic evidence to make a significant showing one way or the other, courts have been reluctant to concern themselves with rights and blow off the deprivation under some tacit “harmless error” approach.
Adding to the problem is that too many males have been indoctrinated to the ways of presumptive Title IX guilt, and, despite going into interviews without counsel or even a support person, essentially confess to their offense not because they did it, or it was an offense, because they’ve been trained to believe the guy is invariably guilty when he’s accused by a woman.
If the “trauma informed” investigation is inherently biased, leading investigators to invariably rationalize away all flaws in a woman’s accusation, is it any less biased if the evidence of innocence or fabrication is less clear? Even when the man, a college kid left to his own devices without someone to explain to him that his grasp of consent is skewed by the indoctrination rammed down his throat by colleges fudging the law at their introductory lectures for new students, concedes his guilt, does that make the deprivation of due process harmless?
If the process by which males are investigated, prosecuted and convicted on college campuses is fundamentally flawed and biased, then it’s the same for the male student who presents “strong evidence of innocence” as well as the student for whom proof in the negative is lacking. Indeed, it’s quite fortunate when someone has any evidence of innocence, no less strong evidence, and that leaves a huge potential for innocent male students to be found responsible not because they are, but for lack of proof of innocence.
In this case, had Jane Doe kept her story straight, would Judge Hurd have seen the impropriety of Syracuse’s “trauma informed” investigation so clearly? It was mere kismet that Jane Doe was a lousy liar. Had she been a better liar, would the plaintiff have been a less innocent John?
Update: KC Johnson has coined a name, the Plummer Principle.
This could be called a “Plummer principle,” a reference to the Univ of Houston case where CA5 explicitly linked level of due process for acc’d students to their likely guilt. https://t.co/36fZM9p02Y
— KC Johnson (@kcjohnson9) May 9, 2019