Sex on local college campuses sure is getting complicated. First a bunch of women at Swarthmore College decided administrators there weren’t taking sexual assaults on their campus seriously enough, so they filed a Title IX complaint against them, followed shortly by a second complaint. Then lightning wiped out Swarthmore’s Women’s Resource Center. Then this weekend, we find out the New York Times spent a year hounding women at the University of Pennsylvania and determined definitively that said women are absolutely not sure about this whole get-drunk-and-hook-up-with-guys-you-can’t-stand-when-you’re-sober thing. (In case you can’t tell the players without a scorecard, this piece I wrote a couple years back outlines the forces that have aligned to create the Title IX violation college-campus frenzy, including an incredibly zealous (I’m being polite there) Main Line attorney who’s making a fortune off the whole to-do.)
Now, in a twist worthy of M. Night Shyamalan — good, early M. Night, not the guy who gave us After Earth — a male student at St. Joe’s University who was found guilty of rape under the school’s internal disciplinary procedures has filed a lawsuit in district court, alleging that those procedures violated his Title IX rights. In a post on the blog Minding the Campus, KC Johnson notes that the St. Joe’s case provides an example of how problematic the lowering of evidentiary standards by the Department of Education’s Office of Civil Rights has turned out to be. Horst is the student who claims she was sexually assaulted; Harris is the student who was found guilty:
Critics of the 2011 “Dear Colleague” letter have focused on the OCR’s mandate that colleges reduce the burden of proof in sexual harassment and assault claims (and only in such claims) from the clear-and-convincing standard (around 75 percent) to the preponderance of evidence (50.01 percent). The Horst/Harris case is a good demonstration of the difference between the two standards.
At St. Joe’s, the accuser (via text message) invited the accused to her dorm room, implied in writing they’d have sexual intercourse, and invited him in writing to spend the night. No medical evidence existed of a crime, since accuser Horst never sought medical attention. There were no witnesses to the students’ intercourse, though Horst did speak to another dorm resident at some point in the evening. It’s conceivable that despite the text messages and the lack of physical evidence, a disciplinary panel predisposed to believe accusers could conclude there was a 50.01 percent chance Horst was telling the truth. But it’s hard to imagine that even a system as procedurally biased as the one at St. Joseph’s could conclude there was a 75 percent chance she was telling the truth. Lowering the burden of proof increases the number of convictions — which seems to be exactly what at least some defenders of the new standard want.
According to Harris’s attorney, Kenneth Dubrow, “SJU, in the manner in which it approaches the investigation, adjudication and appeal of allegations of sexual misconduct and related claims made in connection to sexual misconduct, creates an environment in which a male accused is so fundamentally denied due process as to be virtually assured of a finding of guilt.” Harris is seeking more than $75,000 in damages from St. Joe’s, which so far has declined to comment on the case. It will be interesting to follow the course of this latest volley in the sad immorality play that the war between the sexes on college campuses has become.