Can Title IX Mean Gender Discrimination: Just Ask "John"

Have you read the new Esquire Magazine article "Occidental Justice: The Disastrous Fallout When Drunk Sex Meets Academic Bureaucracy" (March 25, 2015) yet? I have, but really didn't need to. For awhile, I've been expressing concern about both potential, and actual, consequences of an expanded view of Title IX mandates that has prompted college administrators to conduct internal investigations of suspected incidents of campus-based sexual assault. No, I'm not saying rape and sexual assault and/or sexual misconduct don't happen on college campuses throughout America. They clearly do. Nor am I saying there shouldn't be clearly defined guidelines explaining what constitutes inappropriate, unacceptable, and even criminal behavior, both on and off campus for undergraduate and graduate students. There should be; and transgressions of any type should be addressed and/or sanctioned regularly, consistently, and proportionally, commensurate with the nature and severity of the conduct at issue. What I have a problem with is agenda-driven pedagogues who haven't just singled out sexual misconduct as a cause for concern or awareness, but who have also allowed "political correctness" to not only frame the debate about it, but also to dictate the outcome; regardless of what rights may be abridged, whose reputations might be destroyed, or what different conclusions law enforcement professionals may have reached. Consider the case of "John" and "Jane," the two Occidental Freshmen profiled in Esquire's disturbing article.

The back story reveals John was 18, and Jane 17, early into their Freshman Year. They resided in the same dorm, where both returned, after a night of separate and heavy drinking with other students. Both were drunk. Jane heard about a party in John's room, which is where she went instead of to her own room. According to the magazine, Jane was trying to kiss John and dance with him. Eventually both laid on John's bed, with Jane on top of John, "getting really physical" and sexualized. Jane was convinced by friends to leave; they helped put her to bed in her own room. Sometime after that, she got a text from John telling her to come back to his room. In reply, Jane, who was sentient enough to text back responsively, agreed to the invitation and asked John if he had a condom. He replied he did, and Jane said she'd be there in two minutes. Before leaving her room, Jane [according to Esquire] texted a friend "I'm wasted" and "I'm going to have sex now." John didn't remember much about the sex that followed, nor did Jane, but when a roommate walked in on them, he said it didn't look like sexual assault. After they finished, Jane texted a smiley face symbol to two friends.

John and Jane corresponded a few times after the encounter and even met and spoke about it. Both generally agreed they made a mistake. According to Esquire, after these exchanges, and two days after the incident, Jane's roommate convinced her to go the Campus Health Services to speak to a counselor. The counselor suggested she go to a local clinic for a "rape kit," but Jane instead went to class and took a seat next to John "because she felt fine sitting next to him," and because "he genuinely seem[ed] like a nice person." In a follow-up text exchange that night, John and Jane discussed making better decisions and "taking a break" from alcohol. As best as can be gleaned from the Esquire article, that was Jane's last direct contact with John.

Jane, instead, began discussing the incident with campus counselors, including a professor who had sued Occidental under Title IX, alleging Occidental had [quoting Esquire], "mishandled investigations and underreported incidents of sexual assault for dozens of women." In one related conversation [Jane later told investigators, according to Esquire] the professor told her John "fit the profile of other rapists on campus in that he had a high GPA in high school, was class valedictorian, was on a team, and from a good family." The Esquire article goes on to suggest continued conversations with this professor, as well as with her roommate, prompted Jane to realize "she had been sexually assaulted." She began to have nightmares, problems focusing, and flashbacks. According to Esquire, she now told investigators "...I don't think anyone should have to go through what I have gone through." Ten days after the incident, she reported it to campus administrators and the police.

Pursuant to Title IX protocols adopted by colleges and universities throughout America, John was immediately and summarily ordered to vacate his residential dorm. He had not yet been formally charged, let alone convicted of anything. Esquire further reports that, after a six week investigation which included evidence collection, witness interviews, and review of text messages, the District Attorney declined to prosecute John because "....the suspect and victim were both drunk....were both willing participants exercising bad judgment...the victim was capable of resisting" and [there was] "inability to prove the suspect knew or reasonably should have known that she was prevented from resisting in that state." An investigating officer later told Esquire, "....even though everything pointed to her being intoxicated, she still had enough frame of mind to text 'I'm on the way, I'm coming. I'm coming. Do you have a condom?'" The officer also told Esquire "[b]ased on the evidence, I don't think he committed a crime." End of the story right?

Unfortunately for John it wasn't. Despite the DA's Office's decision not to charge him, Occidental went ahead with its own Title IX Sexual Misconduct Investigation, accusing John of two violations of the Student Conduct Code: sexual assault and nonconsensual sexual conduct; essentially the same crimes the DA declined to prosecute. Following standard Title IX procedures, John's criminal attorney wasn't allowed to be present during investigative questioning (which John declined to participate in, on advice of counsel), nor allowed to be present at the Hearing Panel (which in John's case involved a single adjudicator). After hearing witnesses, including Jane [according to Esquire], the Adjudicator concluded Jane was intoxicated and "....was not aware of the consequences of her action and did not have the capacity to appreciate the nature and quality of the act." The Adjudicator ruled Jane was "incapacitated" and found John responsible for both violations. He was expelled from Occidental. Esquire further reported he eventually secured admission at a small Midwestern college that was not aware of his expulsion. After receiving an "anonymous phone call," his admission was rescinded.

So, what's my problem? Am I saying colleges should do nothing about allegations of on-campus sexual assaults? Of course I'm not. Does Occidental have the right to discipline students whose behavior violates their Student Conduct Code? Of course it does. My issue is different. It's with using Title IX not just to prevent discrimination against women (which was its original intent—and a good one), but also now to "prosecute" crimes against women. My issue is with using Title IX not as the "shield" it was meant to serve as, but as a "sword" in a way never contemplated. This might be fine if the same high standard of proof beyond a reasonable doubt used in criminal prosecutions were likewise used in Title IX proceedings, but it isn't. Instead, it's the much weaker preponderance of evidence civil standard that's used, precisely because Title IX was intended solely as a civil remedy; and while that same lower civil standard can, and has, resulted in findings of responsibility in cases where criminal recourse turned out to be unavailing for the same conduct (see OJ Simpson), it seems to me expulsion from one college and being "blackballed" at others is a lot closer to the liberty interests mandating the higher standard of proof on the criminal side than the monetary damages supporting a lower standard on the civil side. Do we really need to "muddy waters" with this third hybrid option that does little more than duplicate the functions of our two established systems, while arbitrarily borrowing the weaker elements of each in order to force-feed outcomes suited to their own agenda?

The fact is, under these expanded Title IX mandates, colleges and universities face drastic sanctions of their own for under-reporting and/or failing to discipline campus based sexual misconduct, including loss of critical federal funding. What about that could possibly promote and encourage fair and impartial fact finding? With money the major incentive, is it any wonder college professors and administrators engaged in the investigative process continue to make prejudgments like Jane's Counselor, who, while acknowledging "only a small percentage of guys truly don't know where the line is" [according to Esquire], goes on to say "but the rest of them-I know it's hard to think of our brothers, our sons, like this-are calculated predators. They seem like nice guys, but they're not nice guys." Statements like this make clear why so many of us experienced in defending sexual assault cases feel the biggest consequence of Title IX sexual misconduct enforcement is the treatment of males as automatic suspects before they have done anything, and why now many college-based males feel they are the ones discriminated against. They also demonstrate how it is someone like Jane can go from on the one hand talking things out with John and accepting a degree of responsibility on her own, and on the other reporting "nightmares," being fearful John " still out there...," and altogether denying any accountability whatsoever; or how it was the Adjudicator utterly ignored any assignment of culpability to Jane, despite evidence she performed oral sex on an equally intoxicated John. Moreover, while civil remedies are always simultaneously available to any so-called victim, even in that context respondents aren't denied the right to counsel or access to evidence/discovery the way they are in the quasi-Star Chamber protocols promulgated under Title IX.

In short, if colleges and universities feel crimes such as rape and/or sexual assault have been committed, they should report them out to prosecuting authorities to ensure fairness, constitutional compliance, objectivity and professionalism; not summary judgment. That way, complicated issues such as intoxication vs. consent can be properly evaluated by individuals more attuned to, and familiar with, the underlying complexities and legal analysis involved than those who clearly mangled and misapplied the facts involving John and Jane. (I know how complicated an issue it is; I helped changed the law in Massachusetts on appeal from a string sentence that read "if by reason of stupefaction, unconsciousness, sleep or intoxication, one is deemed incapable of consent…" to a more understandable jury instruction where if a jury finds the victim was intoxicated, they have to next decide her level of intoxication was such she could not consent—instead of lumping intoxication in with other mental states where consent is impossible. (See Com v. Urban). This way the similar (not same) lesser standard of probable cause can also be used, where it properly should be used, in determining whether or not to charge, not in improperly deciding whether or not to sanction, as now occurs under Title IX; and poor unfortunates like John won't be convicted, without being proven guilty. For me, this last is the type of outcome we can continue to expect so long as we allow serious crimes to be prosecuted in the Ivory Towers of Academia instead of the criminal courthouse.