A class-action lawsuit filed in Michigan last week could change the way Americans look at campus sexual assault, a wrenching emotional issue that has divided colleges and the nation for well over a decade.
Lawyers for several dozen male college students at Michigan State University who were found guilty of sexual assault – and summarily expelled — in recent years are seeking damages, claiming that their clients never had a chance to confront and cross-examine their female accusers.
The case comes on the heels of a little-noticed decision by the U.S. Court of Appeals late last year that colleges were violating the Constitutional due process rights of their students by failing to allow them to defend themselves properly against sexual assault charges, relying instead on the often hazy and ambiguous accounts provided by the putative “victims,” without any real opportunity for rebuttal.
The Court of Appeals decision also triggered the release of the Trump administration’s long-awaited new federal guidelines to colleges on how they should handle sexual assault cases in the future. Trump’s education secretary Betsy Devos has been pushing colleges to drop the Obama administration 2011 federal guidelines which threatened universities with funding cut-offs if they didn’t pursue sexual assault cases more aggressively.
Under pressure from the White House and women’s right advocates, many schools had instituted rules that seemed to all but eliminate the traditional presumption of innocence afforded to those accused of crimes. Schools moved from a “beyond a reasonable doubt” standard of guilt toward a laxer “preponderance of evidence” standard. They also eliminated open-air hearings that allowed the accuser and the accused to challenge each other over the facts of the case.
Critics of the Obama-driven guidelines charged that the universities were creating biased star chambers comprised of unqualified campus “judges” – usually university employees without legal training appointed by another school official – to determine guilt based solely on competing statements from the parties involved. Accusers, in effect, were free to offer their accounts of an alleged assault without offering physical evidence or corroborating eyewitness testimony – or being cross-examined. Essentially it became her word against his, with her word generally carrying more weight than his.
It turns out that expelled students all over the country have been suing their schools by the hundreds – and winning. The list of grievances against irresponsible accusers is long and horrifying: Girlfriends retaliating against boyfriends that dumped them, sadomasochistic experiments went astray, an unwanted kiss or playful slap on the behind – all of them represented as “assaults” by women who claimed to be traumatized or triggered by these encounters.
However, the Michigan case is the first time a group of prospective plaintiffs has gone after a single university en masse – and the results, financially and public relations-wise, could be devastating. MSU is already under attack for its handling of Larry Nassar, the campus doctor who molested hundreds of young female athletes. Top officials were forced to resign and the University Board is still in an uproar. The last thing MSU needs is another blow to its reputation for failing to handle sex-related issues properly.
The Michigan case, coupled with the new Trump guidelines, is likely to send a stern warning to schools that due process rights are not playthings that can be dispensed with on a whim in response to a moral panic over an alleged epidemic of sexual assaults on college campus.
That panic is largely based on exaggerated studies about the number of assaults occurring on campus that include a wide range of sexual behaviors – many of them not assaults at all. In addition, schools have been duped into accepting the results of junk science studies that claim that many women are too traumatized by unwanted sexual encounters to confront their accusers, or to remember all the details involved. Schools as a result have often taken the accusers’ hazy accounts at face value, downplaying the statements of the accused that their sex was consensual.
It’s hard to imagine a legal environmental more fraught with peril than a college dorm. Students with raging hormones too often hopped up on drugs and alcohol, do not make for the most reliable witnesses – even to their own behavior. A woman wakes up in an unfamiliar bed with a hangover and wonders where she is and how she got there. To her chagrin, she’s sleeping with a guy she barely knows, if at all. What will her friends or parents think? Did he wear protection? Did she actually consent? She can still barely talk. Surely she was raped?
That might sound like an exaggeration – if you never attended college. If you did, it was an all-too-common occurrence among the heavy partying crowd. Maybe a hearing won’t actually get to the bottom of what happened. Maybe it’s unknowable.
But it’s nice to think that the country may be re-gaining a measure of sanity and equanimity regarding the most mysterious, confounding and paradoxical aspect of lives, especially when we’re still just teenagers.