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INTRODUCTION
“repeating ‘due process, due process’”: Amber Jamieson, “Harvey Weinstein Turned Up at an Event for Young Actors. A Woman Confronted Him and Was Thrown Out,” BuzzFeed News, Oct. 24, 2019, https://www.buzzfeednews.com/article/amberjamieson/harvey-weinstein-heckled-comedian-event-women-actors; Maanvi Singh, “‘Freddy Krueger in the Room’: Women Confront Harvey Weinstein at New York Event,” Guardian, Oct. 24, 2019, https://www.theguardian.com/film/2019/oct/25/harvey-weinstein-women-confront-producer-new-york-actors-hour.
Department of Education investigated Yale: See Letter to Dorothy K. Robinson, Vice President and General Counsel of Yale University, from Thomas J. Hibino, U.S. Department of Education, June 15, 2012, https://www.ed.gov/news/press-releases/us-department-education-announces-resolution-yale-university-civil-rights-invest.
earned Wesley a public reprimand: Letter to Robert E. Clark II, President of Wesley College, from Beth Gellman-Beer, U.S. Department of Education, Oct. 12, 2016, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/03152329-a.pdf.
denied a meaningful chance to defend himself: Doe v. Univ. of S. California, 246 Cal. App. 4th 221, 225 (2016).
Privately, he bullied schools: Tyler Kingkade, “The Men’s Man,” BuzzFeed News, Dec. 21, 2017, https://www.buzzfeednews.com/article/tylerkingkade/meet-the-republican-lawmaker-whos-taken-up-the-cause-of; Kathryn Joyce, “The Takedown of Title IX,” New York Times, Dec. 5, 2017, https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html.
help the wrongdoer understand: sujatha baliga, “A Different Path for Confronting Sexual Assault,” Vox, Oct. 10, 2018, https://www.vox.com/first-person/2018/10/10/17953016/what-is-restorative-justice-definition-questions-circle; Alexandra Brodsky, “Can Restorative Justice Change the Way Schools Handle Sexual Assault?,” Nation, Apr. 14, 2016, https://www.thenation.com/article/archive/what-if-punishment-wasnt-the-only-way-to-handle-campus-sexual-assault/.
restorative options for survivors dramatically expanded: Few restorative options are currently available for victims. Tyler Kingkade, “Sexual Assault Survivors Who Want Restorative Justice Have Limited Options,” Appeal, Dec. 10, 2019, https://theappeal.org/sexual-assault-survivors-who-want-restorative-justice-have-limited-options/.
sometimes people reserve “harassment”: For those who work in the field, I mean this term to be synonymous with a capacious understanding of “gender violence” or “gender-based violence,” which I considered using instead. I’ve chosen the term “sexual harassment” primarily because of its use in the legal cases I discuss in this book and my own background as a civil litigator, and worried switching between “sexual” and “gender-based” harms might be confusing. But I recognize my use of “sexual harassment” risks prioritizing only that abuse that is recognizably sexual, which I regret.
then sometimes we get worse: Dana Bolger, “Hurry Up and Heal: Pain, Productivity, and the Inadequacy of Victim vs. Survivor,” Feministing, Apr. 10, 2014, http://feministing.com/2014/12/10/hurry-up-and-heal-pain-productivity-and-the-inadequacy-of-victim-vs-survivor.
“men’s first role in this movement”: Alanna Vagianos, “Tarana Burke: ‘Me Too Is Not A Women’s Movement,’” Huffington Post, Apr. 24, 2019, https://www.huffpost.com/entry/tarana-burke-me-too-not-womens-movement_n_5cc06af3e4b0764d31db5d88.
CHAPTER 1: THE STORY OF AFTER
president of the student council: Rebecca Grant, “After Reporting Her Rape, a Teen Girl Says She Was Pushed Out of High School,” Vice, Nov. 22, 2017), https://broadly.vice.com/en_us/article/gyj7y7/after-reporting-her-rape-a-teen-girl-says-she-was-pushed-out-of-high-school; Complaint, Goodwin v. Pennridge School District, https://nwlc.org/wp-content/uploads/2017/05/Goodwin-v.-Pennridge-Complaint-Filed-5.30.17.pdf.
later admitted to the basic facts: “On April 6, 2015, H. spoke with police and gave his version of events, which largely comported with Goodwin’s account. H. agreed that Goodwin repeatedly said no and tried to stop the sexual activity, and that he physically moved her head to resume the activities she had declined. Their stories diverged in that H. said he observed no bleeding or bruising and insisted the sexual activity was consensual, despite Goodwin’s attempt to stop it.” Goodwin v. Pennridge Sch. Dist., 389 F. Supp. 3d 304, 310 (E.D. Pa. 2019) (internal citations omitted).
less likely to participate in class discussion: Cecilia Mengo and Beverly M. Black, “Violence Victimization on a College Campus: Impact on GPA and School Dropout,” Journal of College Student Retention: Research, Theory & Practice 18 (2016): 234, 326–27.
with a GPA under 2.5: Carol E. Jordan et al., “An Exploration of Sexual Victimization and Academic Performance Among College Women,” Trauma, Violence, & Abuse 15 (2014): 191.
“lost opportunities are devastating”: Cari Simon, “On Top of Everything Else, Sexual Assault Hurts the Survivors’ Grades,” Washington Post, Aug. 6, 2014, https://www.washingtonpost.com/posteverything/wp/2014/08/06/after-a-sexual-assault-survivors-gpas-plummet-this-is-a-bigger-problem-than-you-think.
saddled with student debt: Dana Bolger, “Gender Violence Costs: Schools’ Financial Obligations Under Title IX,” Yale Law Journal 125 (2016): 2106, 2115–19.
often leave for a worse job: Heather McLaughlin et al., “The Economic and Career Effects of Sexual Harassment on Working Women,” Gender & Society 31 (2017): 333.
“feel less empowered to negotiate”: National Partnership for Women and Families, “Sexual Harassment and the Gender Wage Gap,” Mar. 2020, https://www.nationalpartnership.org/our-work/resources/economic-justice/fair-pay/sexual-harassment-and-the-gender-wage-gap.pdf.
“I was to be his lunch”: Alicia P. Q. Wittmeyer, “Eight Stories of Men’s Regret,” New York Times, Oct. 18, 2018, https://www.nytimes.com/interactive/2018/10/18/opinion/men-metoo-high-school.html.
A startling number of women in prison: Elizabeth Swavola, Kristine Riley, and Ram Subramanian, Overlooked: Women and Jails in an Era of Reform, Vera Institute of Justice (2016), https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-women-and-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf.
77 percent had been abused by a partner: Shannon M. Lynch et al., Women’s Pathways to Jail: The Roles and Intersections of Serious Mental Illness and Trauma 32 (2012), https://www.bja.gov/Publications/Women_Pathways_to_ Jail.pdf.
abused before they turned thirteen: Dana K. Smith, Leslie D. Leve, and Patricia Chamberlain, “Adolescent Girls’ Offending and Health Risking Sexual Behavior: The Predictive Role of Trauma,” Child Maltreatment 11 (Nov. 2006): 346, 350.
boys in the juvenile justice system: Marianne Hennessey, Julian D. Ford, Karen Mahoney, Susan J. Ko, and Christine Siegfried, Trauma Among Girls in the Juvenile Justice System, National Child Traumatic Stress Network 5 (2014), https://www.nctsn.org/sites/default/files/resources/trauma_among_girls_in_the_jj_system.pdf.
“sexual abuse to prison pipeline”: Malika Saada Saar, Rebecca Epstein, Lindsay Rosenthal, and Yasmin Vafa, The Sexual Abuse to Prison Pipeline: The Girls’ Story, Center on Poverty and Inequality, Georgetown Law (July 2015), https://www.law.georgetown.edu/poverty-inequality-center/wp-content/uploads/sites/14/2019/02/The-Sexual-Abuse-To-Prison-Pipeline-The-Girls’-Story.pdf.
may skip school to avoid their harassers: Saar et al., The Sexual Abuse to Prison Pipeline.
harrowing likelihood of further abuse: Amnesty International, Women in Custody, https://www.amnestyusa.org/pdf/custodyissues.pdf.
far more often than men are: Matthew J. Breiding et al., Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization—National Intimate Partner and Sexual Violence Survey, United States, 2011 (Atlanta), https://www.cdc.gov/mmwr/pdf/ss/ss6308.pdf.
Queer people and people who are transgender: Callie Marie Rennison, “Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992–2000,” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics (Aug. 2002), https://www.bjs.gov/content/pub/pdf/rsarp00.pdf; NISVS: An Overview of 2010 Findings on Victimization by Sexual Orientation, Centers for Disease Control and Prevention, https://www.cdc.gov/violenceprevention/pdf/cdc_nisvs_victimization_final-a.pdf; Sexual Assault and the LGBTQ Community, Human Rights Campaign, https://www.hrc.org/resources/sexual-assault-and-the-lgbt-community.
People with disabilities: Joseph Shapiro, “The Sexual Assault Epidemic No One Talks About,” All Things Considered, Jan. 8, 2018, https://www.npr.org/2018/01/08/570224090/the-sexual-assault-epidemic-no-one-talks-about.
Native American women: André B. Rosay, “Violence Against American Indian and Alaska Native Women and Men,” National Institute of Justice Journal (June 1, 2016), https://nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-women-and-men; Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, American Indians and Crime, 1992–2002 (2004), https://www.bjs.gov/content/pub/pdf/aic02.pdf.
Black women filed harassment complaints: Amanda Rossie, Jasmine Tucker, and Kayla Patrick, Out of the Shadows: An Analysis of Sexual Harassment Charges Filed by Working Women, National Women’s Law Center, Aug. 2, 2018, https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/08/SexualHarassmentReport.pdf.
“a boy’s future and her feelings”: Kay Lazar, “‘Better Dead Than Coed’: Deerfield Academy Confronts Its Male-Only Past,” Boston Globe, Dec. 28, 2018, https://www.bostonglobe.com/metro/2018/12/28/better-dead-than-coed-deerfield-academy-confronts-its-male-only-past/63sZu3NRllpW2N9cu1fGkM/story.html.
“pressure of the books that are not there”: Reina A. E. Gattuso, “Gender Gap,” Harvard Crimson, Apr. 9, 2015, https://www.thecrimson.com/article/2015/4/9/gender-gap/.
CHAPTER 2: A CIVIL RIGHT
Mechelle Vinson started work as a teller: Much of this history is drawn from two extraordinary books: Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work (New York: St. Martin’s Press, 2016); and Fred Strebeigh, Equal: Women Reshape American Law (New York: W. W. Norton, 2009).
eventually became MacKinnon’s first book: Alexandra Brodsky and Elizabeth Deutsch, “The Promise of Title IX: Sexual Violence and the Law,” Dissent (Fall 2015), https://www.dissentmagazine.org/article/title-ix-activism-sexual-violence-law.
attitudes pervade the workplace: Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven, CT: Yale University Press, 1979).
“a technology of sexism”: Katherine M. Franke, “What’s Wrong with Sexual Harassment?,” Stanford Law Review 49 (1997): 691.
required to dress the part: Ted Gregory, “Sexual Harassment Lawsuits Put Casinos Under Microscope,” Chicago Tribune, Aug. 6, 1998.
“harassment feminized Steiner”: Franke, “What’s Wrong with Sexual Harassment?,” 764.
“they are women in a man’s world”: Kate Manne, Down Girl: The Logic of Misogyny (New York: Oxford University Press, 2018), 64.
lived at home with his mother: Goluszek v. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988).
part of their general legal responsibility: Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (1992).
on the better-established principle: Pat K. Chew and Robert E. Kelley, “Unwrapping Racial Harassment Law,” Berkeley Journal of Employment and Labor Law 27 (2006): 49; Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982).
feminist groups drew the same analogy: MacKinnon, Sexual Harassment of Working Women, 210; Brief of Respondent, Meritor Savings Bank v. Vinson, 1986 WL 728302; Brief of the Women’s Bar Association of the State of New York, Meritor Savings Bank v. Vinson, 1983 U.S. S. Ct. Briefs LEXIS 1130; Brief of the Working Women’s Institute et al., Meritor Savings Bank v. Vinson, 1986 WL 728236 (U.S.).
poor but not “clearly unreasonable”: E.g., Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633, 648–49 (1999).
only so much that law can do: Catharine A. MacKinnon, “Where #MeToo Came From, and Where It’s Going,” Atlantic, Mar. 24, 2019, https://www.theatlantic.com/ideas/archive/2019/03/catharine-mackinnon-what-metoo-has-changed/585313/.
most violations never lead to prosecution: RAINN, “The Criminal Justice System: Statistics,” https://www.rainn.org/statistics/criminal-justice-system (drawing data from Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey, 2010–2016 [2017]; Federal Bureau of Investigation, National Incident-Based Reporting System, 2012–2016 [2017]; Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 [2013]).
CHAPTER 3: WHAT INSTITUTIONS CAN DO
text messages or medical records: Susan Antilla, “When #MeToo Investigations Go Wrong,” New York Times, Dec. 6, 2018, https://www.nytimes.com/2018/12/06/opinion/me-too-movement-investigations.html.
“it got better every day”: Megan Dutta, Me, Too, Musings of Megan, Oct. 20, 2017, https://www.meganadutta.com/blog/me-too.
“individual’s capacity to organize with DSA”: Harassment Policy (Resolution 33), Democratic Socialists of America, https://www.dsausa.org/about-us/harassment-policy-resolution-33/; Letter from the Harassment Working Group, Nov. 22, 2017, https://d3n8a8pro7vhmx.cloudfront.net/dsausa/mailings/1795/attachments/original/Dear_Comrade_Letter.pdf?1511384153.
pioneered by radical grassroots groups: The seminal anthology The Revolution Starts at Home tracks, in essays, poems, and case studies, how such grassroots groups have responded to sexual violence in their ranks. Ching-In Chen, Jai Dulani, and Leah Lakshmi Piepzna-Samarasinha, The Revolution Starts at Home: Confronting Intimate Violence Within Activist Communities, preface by Andrea Smith (Brooklyn, NY: South End Press, 2011), https://thequeerproject.files.wordpress.com/2016/01/revolution-starts-at-home.pdf.
Communities Against Rape and Abuse: Alisa Bierria et al., “Taking Risks: Implementing Grassroots Community Accountability Strategies,” in Chen et al., The Revolution Starts at Home.
CHAPTER 4: WHY NOT THE POLICE?
over 60 percent of batteries and robberies: RAINN, “The Criminal Justice System: Statistics.” The number of sexual assaults reported to police is especially small among certain populations. For example, one National Institute of Justice study found that “[f]ewer than 5 percent of completed and attempted rapes [of college women] were reported to law enforcement officials.” Bonnie Fisher, Francis Cullen, and Michael Turner, The Sexual Victimization of College Women, National Institute of Justice (Washington, D.C.: U.S. Department of Justice, December 2000).
a reasoned cost-benefit analysis: See Nancy Chi Cantalupo, “For the Title IX Civil Rights Movement: Congratulations and Cautions,” Yale Law Journal Forum 125 (2016): 281, http://www.yalelawjournal.org/forum/for-the-title-ix-civil-rights-movement-congratulations-and-cautions.
all of the ways criminal law fails victims: Some recent books on the issue include Michelle Bowdler, Is Rape a Crime? A Memoir, An Investigation, and a Manifesto (New York: Flatiron Books, 2020); Rachel Louise Snyder, No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us (New York: Bloomsbury, 2019); Leigh Goodmark, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence (Oakland: University of California Press, 2018); Andrea J. Ritchie, Invisible No More: Police Violence Against Black Women and Women of Color (Boston: Beacon Press, 2017); Beth Richie, Arrested Justice: Black Women, Violence, and America’s Prison Nation (New York: New York University Press, 2012).
Readers might note that, in this chapter, I discuss sexual assault and nonsexual intimate partner violence in the same breath, and perhaps unfairly conflate the two. There are, undoubtedly, differences in the ways that the criminal system responds to these distinct crimes, and I wish I had the space to parse those distinctions more deeply. This book is concerned with both kinds of harms, though, and there are certainly common patterns in the criminal system’s mistreatment of victims of different sexual and gender-based crimes. See, e.g., Julie Goldscheid et al., Responses from the Field: Sexual Assault, Domestic Violence, and Policing (University of Miami Legal Research Studies Paper No. 16-2, October 2015), https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1075&context=cl_pubs.
three times less likely to result in convictions: RAINN, “The Criminal Justice System: Statistics.”
hear those messages loud and clear: Megan Greeson et al., “‘Nobody Deserves This’: Adolescent Sexual Assault Victims’ Perceptions of Disbelief and Victim Blame from Police,” Journal of Community Psychology 44 (2016): 90; Shana L. Maier, “‘I Have Heard Horrible Stories…’: Rape Victim Advocates’ Perceptions of the Revictimization of Rape Victims by the Police and Medical System,” Violence Against Women 14 (2008): 786.
victim-blaming ideologies and obsolete legal definitions: Rebecca Campbell and Camille R. Johnson, “Police Officers’ Perceptions of Rape: Is There Consistency Between State Law and Individual Beliefs?,” Journal of Interpersonal Violence 12 (1997): 255.
a matter of both ethics and law: A 1978 study—old, but recent enough to still be shocking—found that police officers’ views about rape were strikingly similar to those of convicted rapists, and, on a number of metrics, were more closely aligned with the rapists’ attitudes than with the general population’s. In fact, on half of the tests, researchers found no difference between police and rapists at all. Hubert S. Feild, “Attitudes Toward Rape: A Comparative Analysis of Police, Rapists, Crisis Counselors, and Citizens,” Journal of Personality and Social Psychology 36 (1978): 156.
marital rape is now illegal: Amy Dellinger Page, “True Colors: Police Officers and Rape Myth Acceptance,” Feminist Criminology 5 (2010): 315, 326. In my view, Dellinger Page’s diagnosis of police officer attitudes is overly sunny because her definitions of sexist ideologies are quite narrow.
police officers themselves commit sexual violence: Leigh Goodmark, “Hands Up at Home: Militarized Masculinity and Police Officers Who Commit Intimate Partner Abuse,” Brigham Young University Law Review 2015 (2015): 1183, 1189–96; Alex Roslin, Police Wife: The Secret Epidemic of Police Domestic Violence (2018).
More than a quarter of surveyed Alaskan sex workers report having been sexually assaulted by a police officer. One told a researcher that a friend had shown up to her house in handcuffs: “She got away from a policeman who … threatened to throw her in the [river] if she didn’t perform oral sex on him.” Alaska Criminal Justice Commission, Staff Summary of Plenary Meeting, Oct. 13, 2016, https://web.archive.org/web/20180330035504/http://www.ajc.state.ak.us/sites/default/files/meeting-summaries/commission-meeting-summary/acjcmeetingsummaryofoctober132016.pdf.
Amnesty International published the account of a transgender woman who called the police after her abusive partner choked her and chased her around their apartment. Not only was she arrested rather than her partner, but the police insisted on calling her “mister” and using male pronouns after they saw her identification. A Latina trans woman was called a “faggot” and told to “shut up” by police when she reported that her boyfriend had assaulted her. Amnesty International, Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the U.S., Sept. 2005, https://www.amnesty.org/download/Documents/84000/amr511222005en.pdf.
popular model of the “perfect victim”: E.g., Ericka A. Wentz, “Funneled Through or Filtered Out: An Examination of Police and Prosecutorial Decision-Making in Adult Sexual Assault Cases,” Violence Against Women 26 (2020): 1919, 1921–22; Goldscheid, Responses from the Field, 17–24.
vast majority know their abuser: RAINN, “Perpetrators of Sexual Violence: Statistics,” https://www.rainn.org/statistics/perpetrators-sexual-violence.
44 percent of officers felt: Amy Dellinger Page, “Behind the Blue Line: Investigating Police Officers’ Attitudes Toward Rape,” Journal of Police and Criminal Psychology 22, no. 1 (June 2007): 22. A study of the Detroit Police Department found that officers often assumed survivors were sex workers based on their appearance or the location of the assault. In the officers’ minds, whatever had happened was therefore the victims’ own fault. Police reports often referred to sexual assaults of suspected sex workers as “a deal gone bad.” Rebecca Campbell et al., The Detroit Sexual Assault Kit (SAK) Action Research Project (ARP), Final Report, Dec. 2015, https://www.ncjrs.gov/pdffiles1/nij/grants/248680.pdf. Officers often misclassified the rape of sex workers as an “economic crime.” Martin Schwartz, National Institute Justice Visiting Fellowship: Police Investigation of Rape—Roadblocks and Solutions, Dec. 2010, www.ncjrs.gov/pdffiles1/nij/grants/232667.pdf. Some police will simply not accept reports of sexual assault from street-based sex workers. Goldscheid, Responses from the Field, 22. And sex workers know this. One explained to a researcher that she screens clients to “make sure that it’s a safe environment, because I know that if it wasn’t I couldn’t just call the police and know that everything would be okay. I couldn’t call the police and be treated like a typical public person.” Alaska Criminal Justice Commission, Staff Summary of Plenary Meeting, Oct. 13, 2016.
“income, reputation, disability, [or] sexual identity”: TK Logan and Rob Valente, National Domestic Violence Hotline, “Who Will Help Me? Domestic Violence Survivors Speak Out About Law Enforcement Responses,” 2015, https://www.thehotline.org/wp-content/uploads/media/2020/09/NDVH-2015-Law-Enforcement-Survey-Report-2.pdf; see also Emma Sleath and Ray Bull, “Comparing Rape Victim and Perpetrator Blaming in a Police Officer Sample: Differences Between Police Officers With and Without Special Training,” Criminal Justice and Behavior 39 (2012): 646; Goldscheid, Responses from the Field, 17–24.
none “had heard of female-on-male rape”: Schwartz, National Institute Justice Visiting Fellowship; Lara Stemple and Ilan H. Meyer, “Sexual Victimization by Women Is More Common Than Previously Known,” Scientific America, Oct. 10, 2017, https://www.scientificamerican.com/article/sexual-victimization-by-women-is-more-common-than-previously-known/.
“any man can be raped”: Dellinger Page,”True Colors,” 326.
male victims are less likely: Goldscheid, Responses from the Field, 8.
between 2 and 8 percent: Kimberly A. Lonsway, Sgt. Joanne Archambault (Ret.), and David Lisak, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, https://www.nsvrc.org/sites/default/files/publications/2018-10/Lisak-False-Reports-Moving-beyond.pdf; Emily Moon,“False Reports of Sexual Assault are Rare. But Why Is There So Little Reliable Data About Them?,” Pacific Standard, Oct. 7, 2018, https://psmag.com/news/false-reports-of-sexual-assault-are-rare-but-why-is-there-so-little-reliable-data-about-them.
believed most rape reports were false: Annelise Mennicke et al., “Law Enforcement Officers’ Perception of Rape and Rape Victims: A Multimethod Study,” Violence and Victims 29 (2014): 814, 822.
“victim’s conduct, lifestyle, and personal history”: Louis A. Trosch Jr., “State v. Strickland: Evening the Odds in Rape Trials—North Carolina Allows Expert Testimony on Post Traumatic Stress Disorder to Disprove Victim Consent,” North Carolina Law Review 69 (1991): 1624.
“wasn’t the victim she claimed to be”: Jennifer Emily, “Judge Says Sexually Assaulted 14-year-old ‘Wasn’t the Victim She Claimed to Be,’” Dallas Morning News, May 1, 2014, https://www.dallasnews.com/news/crime/2014/05/01/judge-says-sexually-assaulted-14-year-old-wasn-t-the-victim-she-claimed-to-be.
“as much in control of the situation”: Paul Vercammen and Kyung Lah, “Prosecutors Weigh Appeal of 30-day Rape Sentence in Montana,” CNN, Aug. 30, 2013, https://www.cnn.com/2013/08/28/justice/montana-teacher-rape-sentence/.
ethically obligated to use them: Tyler Kingkade, “Here’s the Awful Reality of Being a Rape Victim in Criminal Trials,” Huffington Post, July 27, 2016; Sokratis Dinos et al., “A Systematic Review of Juries’ Assessment of Rape Victims: Do Rape Myths Impact on Juror Decision-making?,” International Journal of Law, Crime and Justice 43 (2015): 36.
police rather than complainants: Cantalupo, “For the Title IX Civil Rights Movement,” 281.
a grand jury indicted Anderson: Kristin Hoppa, “Baylor Fraternity President Charged with Sexual Assault,” Waco Tribune-Herald, March 3, 2016, https://wacotrib.com/news/higher_education/baylor-fraternity-president-charged-with-sexual-assault/article_65235ab8-a07e-5107-b8ea-7d1cde2fb988.html.
prosecutor Hilary LaBorde later explained: Holly Yan, “A Prosecutor Refused to Try an Ex-Frat Leader’s Sex Assault Case. Here Are Her Eye-Opening Reasons Why,” CNN, Dec. 13, 2018, https://www.cnn.com/2018/12/12/us/baylor-rape-allegation-letter-from-prosecutor/index.html.
“‘looked like a rapist’”: LaBorde also explained that the injuries of Anderson’s victim from the rape were not persuasive evidence because she had been a virgin at the time, meaning that consensual sex, too, might have caused vaginal tears. Contrast this to the young girl who was told she was to blame for her assault because she was not a virgin. No one can win.
then district attorney Kamala Harris: Peter Jamison, “A Lack of Conviction,” SF Weekly, May 5, 2010, https://archives.sfweekly.com/sanfrancisco/a-lack-of-conviction/Content?oid=2177022.
“the scratches on his neck”: Meg Crager, Merril Cousin, and Tara Hard, Victim-Defendants: An Emerging Challenge in Responding to Domestic Violence in Seattle and the King County Region, King County Coalition Against Domestic Violence, Apr. 2003, https://endgv.org/wp-content/uploads/2016/03/victimdefendantfinalreport111.pdf.
arrested or threatened with arrest: Logan and Valente, “Who Will Help Me?”
“get to the phone first”: Susan L. Miller, “The Paradox of Women Arrested for Domestic Violence: Criminal Justice Professionals and Service Providers Respond,” Violence Against Women 7 (2001): 1339.
introduction of mandatory arrest laws: Carol Bohmer et al., “Domestic Violence Law Reforms: Reactions from the Trenches,” Journal of Sociology & Social Welfare 29, no. 3 (September 2002): 71, 78; David Hirschel et al., “Domestic Violence and Mandatory Arrest Laws: To What Extent Do They Influence Police Arrest Decisions?,” Journal of Criminal Law and Criminology 98, no. 1 (2007): 255–56, 259–61.
unintended consequences of these laws: For an extended discussion of mandatory arrest laws, see Goodmark, Decriminalizing Domestic Violence.
exacerbated two dangerous patterns: David Hirschel et al., Explaining the Prevalence, Context, and Consequences of Dual Arrest in Intimate Partner Cases (Washington, D.C.: U.S. Department of Justice, 2007), https://www.ncjrs.gov/pdffiles1/nij/grants/218355.pdf; Mary Haviland et al., The Family Protection and Domestic Violence Intervention Act of 1995: Examining the Effects of Mandatory Arrest in New York City: A Report by the Family Violence Project of the Urban Justice Center (New York: Urban Justice Center, 2001).
they often arrest both parties: Amy M. Zelcer, “Battling Domestic Violence: Replacing Mandatory Arrest Laws with a Trifecta of Preferential Arrest, Officer Education, and Batterer Treatment Programs,” American Criminal Law Review 51, no. 2 (Spring 2014): 541, 550.
ten times more likely to arrest both partners: David Hirschel, Domestic Violence Cases: What Research Shows About Arrest and Dual Arrest Rates (Washington, D.C.: U.S. Department of Justice, July 25, 2008), https://www.ncjrs.gov/pdffiles1/nij/222679.pdf.
“mutual abuse”: National Center for Victims of Crime and the National Coalition of Anti-Violence Programs, Why It Matters: Rethinking Victim Assistance for Lesbian, Gay, Bisexual, Transgender, and Queer Victims of Hate Violence & Intimate Partner Violence, Mar. 2010, http://avp.org/wp-content/uploads/2019/02/WhyItMatters.pdf.
scratched up from the victim’s self-defense: Hillary Potter, Battle Cries: Black Women and Intimate Partner Abuse (New York: New York University Press, 2008), 178–79.
In Harris County, Texas: Leon Neyfakh, “A Texas Prosecutor Jailed a Rape Victim,” Slate, July 22, 2016, https://slate.com/news-and-politics/2016/07/a-texas-prosecutor-jailed-a-rape-victim-to-ensure-her-testimony-against-her-attacker.html.
she was imprisoned for a month: While incarcerated, this woman later alleged in a lawsuit, she was assaulted by both another inmate and a guard. In another case, a Sacramento judge ordered that a seventeen-year-old be detained in a juvenile detention facility for refusing to testify against the man who raped her; after three weeks, she was released wearing a GPS ankle monitor. Anginas Becker Stevens, “17-Year-Old Imprisoned for Failing to Testify Against Her Alleged Rapist,” Ms., Apr. 16, 2012, http://msmagazine.com/blog/2012/04/16/17-year-old-imprisoned-for-failing-to-testify-against-her-alleged-rapist/.
Houston, Los Angeles, San Diego: Cora Engelbrecht, “Fewer Immigrants Are Reporting Domestic Abuse. Police Blame Fear of Deportation,” New York Times, June 3, 2018, https://www.nytimes.com/2018/06/03/us/immigrants-houston-domestic-violence.html.
“increase in fear of immigration consequences”: ACLU, Freezing Out Justice: How Immigration Arrests at Courthouses Are Undermining the Justice System (2018), https://www.aclu.org/report/freezing-out-justice; see also Tahirih Justice Center, May 2019 Advocate Survey: Immigrant Survivors Fear Reporting Violence, May 2019.
before she could exit the courthouse: Aaron Martinez, “Transgender Woman Gets Time Served, Stays Jailed,” El Paso Times, Apr. 13, 2017, https://www.elpasotimes.com/story/news/crime/2017/04/13/transgender-woman-gets-time-served-stays-jailed/100430560/.
“no ability to apply for a U visa”: Human Rights Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment 56 (2012), https://www.hrw.org/sites/default/files/reports/us0512ForUpload_1.pdf.
the Colemans’ home burning down: Laura Collins, “With Frostbite on Her Hands and Hair Frozen to the Ground, 14-year-old Daisy Coleman Was Raped and Dumped by High School Footballers. Now She Speaks Out About Her Ordeal,” Daily Mail, Feb. 2, 2017, https://www.dailymail.co.uk/news/article-4176786/Teen-rape-victim-Daily-Coleman-speaks-out.html.
Daisy Coleman died by suicide: Eric Levenson and Kay Jones, “Daisy Coleman, Student Featured in Netflix Documentary on Sexual Assault, Dies by Suicide,” CNN, Aug. 7, 2020, https://www.cnn.com/2020/08/06/us/daisy-coleman-suicide-trnd/index.html.
Melinda followed her four months after: EJ Dickson, “The Mother of Daisy Coleman from ‘Audrie & Daisy’ Has Died by Suicide,” Rolling Stone, Dec. 7, 2020, https://www.rollingstone.com/culture/culture-news/audrie-daisy-doc-daisy-coleman-mother-melinda-coleman-suicide-1099884/.
Audrie Pott, a fifteen-year-old: Nina Burleigh, “Sexting, Shame and Suicide,” Rolling Stone, Sept. 17, 2013, https://www.rollingstone.com/culture/culture-news/sexting-shame-and-suicide-72148/.
“Messing with Notre Dame football”: Melinda Henneberger, “Reported Sexual Assault at Notre Dame Campus Leaves More Questions Than Answers,” National Catholic Reporter, Mar. 26, 2012, https://www.ncronline.org/news/accountability/reported-sexual-assault-notre-dame-campus-leaves-more-questions-answers.
DOJ’s National Crime Victimization Survey: Michael Planty et al., Female Victims of Sexual Violence, 1994–2010 (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 31, 2016), https://www.bjs.gov/content/pub/pdf/fvsv9410.pdf; Lynn Langton et al., Victimizations Not Reported to the Police, 2006–2010 (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Aug. 2012), https://www.bjs.gov/content/pub/pdf/vnrp0610.pdf.
“making the situation worse”: Logan and Valente, “Who Will Help Me?,” 3.
#WhyIDidntReport: Christine Marley-Frederick (@drcmarley), Twitter, Sept. 20, 2018, 8:12 p.m., https://twitter.com/drcmarley/status/1042929468761927681.
under the guise of “protection”: Dorothy Thomas et al., All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, Human Rights Watch, Dec. 1996, https://www.hrw.org/legacy/reports/1996/Us1.htm.
“negative consequences for the offender’s life”: Logan and Valente, “Who Will Help Me?,” 4.
ranked concern for their assailant: Marjorie R. Sable et al., “Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students,” Journal of American College Health 55 (2006): 157.
Ray Rice’s abuse of his then fiancée: Feminista Jones, “Why Black Women Struggle More with Domestic Violence,” Time, Sept. 10, 2014, http://time.com/3313343/ray-rice-black-women-domestic-violence/.
CHAPTER 5: WHEN INSTITUTIONS FAIL
“how many penises she could take”: Kelly Weill, “McDonald’s Workers in 10 Cities Strike over Sexual Harassment by Bosses,” Daily Beast, Sept. 18, 2018, https://www.thedailybeast.com/mcdonalds-workers-in-10-cities-strike-over-sexual-harassment-by-bosses.
“it’s ‘America’s best first job’”: Daniella Silva, “McDonald’s Workers Go on Strike over Sexual Harassment,” NBC News, Sept. 18, 2018, https://www.nbcnews.com/news/us-news/mcdonald-s-workers-go-strike-over-sexual-harassment-n910656.
rampant in the fast-food industry: Hart Research Associates, Key Findings from a Survey of Women Fast Food Workers, Oct. 5, 2016, https://hartresearch.com/wp-content/uploads/2016/10/Fast-Food-Worker-Survey-Memo-10-5-16.pdf.
cheese it must put on a Big Mac: David Yaffe-Bellany, “McDonald’s Lawsuit Targets ‘Pervasive’ Culture of Sexual Harassment,” New York Times, Nov. 12, 2019. One appeals court has already ruled for McDonald’s on this issue.
rely significantly on undocumented laborers: Ariel Ramchandani, “There’s a Sexual-Harassment Epidemic on America’s Farms,” Atlantic, Jan. 29, 2018, https://www.theatlantic.com/business/archive/2018/01/agriculture-sexual-harassment/550109/.
Brigham Young University came under fire: Christina Cauterucci, “BYU’s Honor Code Sometimes Punishes Survivors Who Report Their Rapes,” Slate, Apr. 15, 2016, https://slate.com/human-interest/2016/04/byu-s-honor-code-sometimes-punishes-survivors-who-report-their-rapes.html.
instituted an amnesty clause: Associated Press, “BYU Amends Honor Code That Shamed Students Who Reported Sexual Assault,” Guardian, Oct. 26, 2016, https://www.theguardian.com/us-news/2016/oct/26/brigham-young-university-sexual-assault-policy-changes.
the girl had broken its rules: Eric Stirgus, “Gwinnett School Bungled Sex Assault Claim, Alleged Victim Says,” Atlanta Journal-Constitution, Sept. 20, 2016, https://www.ajc.com/news/local-education/gwinnett-school-bungled-sex-assault-claim-alleged-victim-says/c7aXDNpFa2dY4SQVS3UhwL/.
“internal” allegations to law enforcement: E.g., PREA § 115.271. Even when no criminal prosecution results, the outcomes of internal complaints against other detained people are often inherently criminal, like extended incarceration and solitary confinement. The military suffers from a similar problem: its internal governance structure includes internal criminal law enforcement.
“played out quite a bit differently”: Susan Fowler, “Reflecting on One Very, Very Strange Year at Uber,” Feb. 19, 2017, https://www.susanjfowler.com/blog/2017/2/19/reflecting-on-one-very-strange-year-at-uber; Mike Isaac, “Uber Investigating Sexual Harassment Claims by Ex-Employee,” New York Times, Feb. 19, 2017, https://www.nytimes.com/2017/02/19/business/uber-sexual-harassment-investigation.html.
Avendaño left the company: Daisuke Wakabayashi, “Former Uber Engineer’s Lawsuit Claims Sexual Harassment,” New York Times, May 21, 2018, https://www.nytimes.com/2018/05/21/technology/uber-sexual-harassment-lawsuit.html.
termination of at least twenty: Olivia Solon, “Uber Fires More Than 20 Employees After Sexual Harassment Investigation,” Guardian, June 6, 2017, https://www.theguardian.com/technology/2017/jun/06/uber-fires-employees-sexual-harassment-investigation.
released a set of public recommendations: Meghann Farnsworth, “Read the Full Investigation into Uber’s Troubled Culture and Management,” Vox, June 13, 2017, https://www.vox.com/2017/6/13/15794412/read-entire-investigation-uber-culture-management-ethics-eric-holder.
Uber’s founder, Travis Kalanick, resigned: Julia Carrie Wong, “Uber CEO Travis Kalanick Resigns Following Months of Chaos,” Guardian, June 21, 2017, https://www.theguardian.com/technology/2017/jun/20/uber-ceo-travis-kalanick-resigns.
$4.4 million to settle charges: Andrew J. Hawkins, “Uber Will Pay $4.4 Million to Settle a Federal Probe into Sexual Harassment and Retaliation,” Verge, Dec. 19, 2019, https://www.theverge.com/2019/12/19/21029831/uber-settles-federal-probe-sexual-harassment-retaliation.
forced arbitration agreements: Daisuke Wakabayashi, “Uber Eliminates Forced Arbitration for Sexual Misconduct Claims,” New York Times, May 15, 2018, https://www.nytimes.com/2018/05/15/technology/uber-sex-misconduct.html.
38 percent as often as their counterparts: Katherine V. W. Stone and Alexander J. S. Colvin, The Arbitration Epidemic: Mandatory Arbitration Deprives Workers and Consumers of Their Rights (Washington, D.C.: Economic Policy Institute, Dec. 7, 2015), https://www.epi.org/publication/the-arbitration-epidemic/#epi-toc-20.
outcry against Google’s reliance on them: Daisuke Wakabayashi, “Google Ends Forced Arbitration for All Employee Disputes,” New York Times, Feb. 21, 2019, https://www.nytimes.com/2019/02/21/technology/google-forced-arbitration.html.
domestic violence calls about fellow cops: Conor Friedersdorf, “Police Have a Much Bigger Domestic-Abuse Problem Than the NFL Does,” Atlantic, Sept. 19, 2014, https://www.theatlantic.com/national/archive/2014/09/police-officers-who-hit-their-wives-or-girlfriends/380329/.
“The abuser is still in DSA”: Allison Geroi [Hrabar], “The Chips Are Down,” Medium, Apr. 3, 2019, https://medium.com/@allisongeroi/the-chips-are-down-8ab1777f3865.
“leadership that is, at best, apathetic”: The most obvious and historically significant example of an institution using the opacity of its own internal systems to protect sexual abusers is, of course, the Catholic Church. Shielded from public scrutiny by its own internal governance, as well as a leadership that shamed and manipulated victims into silence, the Church long faced no repercussions when it ignored victims’ stories about abuse at the hands of priests. I don’t think it is a particularly useful example to understand what drives institutional failures and how advocates can fix them, though, because the Church is truly sui generis. What other institution is so immune from public pressure?
a sea change in schools’ responses: The story at McDonald’s is still incomplete. McDonald’s has now begun to implement some reforms, like anti-harassment trainings. But organizers feel these are baby steps at best. Future legal victories will hopefully spur further meaningful change. Bryce Covert, “McDonald’s Has a Real Sexual Harassment Problem,” Nation, July 28, 2020, https://www.thenation.com/article/society/mcdonalds-sexual-harassment-feature/.
Coalition of Immokalee Workers (CIW): “Fair Food Code of Conduct,” Fair Food Standards Council, http://www.fairfoodstandards.org/resources/.fair-food-code-of-conduct/.
“eliminate horrendous human rights abuses”: Kerstin Lindgren, Justice in the Fields: A Report on the Role of Farmworker Justice Certification and an Evaluation of the Effectiveness of Seven Labels 17, Fair World Project (2016), https://fairworldproject.org/wp-content/uploads/2016/10/Justice-In-The-Fields-Report.pdf.
“first thing you need to give up”: Sara Ahmed (@SaraNAhmed), Twitter, May 14, 2019, 1:55 a.m., https://web.archive.org/web/20190515124925/https://twitter.com/SaraNAhmed/status/1128222193735950337.
the Ya Basta! coalition: Bernice Yeung, “A Group of Janitors Started a Movement to Stop Sexual Abuse,” Reveal, Jan. 16, 2018, https://www.revealnews.org/article/a-group-of-janitors-started-a-movement-to-stop-sexual-abuse/.
not simple outsourcing to cops: “Fair Food Code of Conduct,” Fair Food Standards Council, http://www.fairfoodstandards.org/resources/.fair-food-code-of-conduct/.
CHAPTER 6: “THE OTHER SIDE”
wasn’t a onetime mistake: Letter to Robert E. Clark II, President of Wesley College, from Beth Gellman-Beer, U.S. Department of Education, Oct. 12, 2016, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/03152329-a.pdf.
“conduct inconsistent with our values”: Richard Johnson, “Ex-Congressman Axed by Morgan Stanley Prepping for a Comeback,” Page Six, Jan. 10, 2018, https://pagesix.com/2018/01/10/ex-congressman-axed-by-morgan-stanley-prepping-for-a-comeback.
did not identify the actual reason: Ford was, however, reportedly “accused at Morgan Stanley of padding his expense account and mistreating his assistants,” so alternative explanations exist. Kate Kelly, “Morgan Stanley Says Harold Ford Jr. Wasn’t Fired for Sexual Misconduct,” New York Times, Jan. 22, 2018, https://www.nytimes.com/2018/01/22/business/morgan-stanley-harold-ford-sexual-misconduct.html.
cast a shadow over Tecedor’s efforts: Sarah Viren, “The Accusations Were Lies. But Could We Prove It?,” New York Times, Mar. 18, 2020, https://www.nytimes.com/2020/03/18/magazine/title-ix-sexual-harassment-accusations.html.
now required under California law: California’s intermediate appeals courts currently require schools to provide live hearings with some form of indirect cross-examination. Doe v. Westmont Coll., 34 Cal. App. 5th 622 (Cal. Ct. App. 2019). At the time of this writing, the California Supreme Court has agreed to review the question, and may either limit or expand the rule.
In a series of focus groups: National Center for Victims of Crime, unpublished data.
CHAPTER 7: WHAT IS DUE
$33.5 million to the families: B. Drummond Ayres Jr., “Jury Decides Simpson Must Pay $25 Million in Punitive Award,” New York Times, Feb. 11, 1997, https://www.nytimes.com/1997/02/11/us/jury-decides-simpson-must-pay-25-million-in-punitive-award.html.
convinced beyond a reasonable doubt: Cal. Pen. Code § 1096.
the “preponderance of the evidence”: Cal. Evid. Code. § 115.
Kelly sued the responsible public officials: Goldberg v. Kelly, 397 U.S. 254, 255–57 (1970); Deborah J. Cantrell, “A Short History of Poverty Lawyers in the United States,” Loyola Journal of Public Interest Law 5 (2003): 11.
can be relatively simple and informal: The balancing test reinforces the first principle of due process: fairness comes in many forms. Courts recognize that a lot of government decision-making happens outside of lawsuits. Such decision-making must still be consistent with due process, but that does not require a courtroom. A welfare hearing does not violate due process simply because it does not look much like a trial. The interests are different in the two contexts; so are the resources available.
The court ruled in Kelly’s favor: Goldberg, 397 U.S. at 261–69. The same kind of balancing test is used to assess disciplinary systems in publicly run workplaces and schools, where employees and students have due process rights when they face removal. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 546 (1985); Goss v. Lopez, 419 U.S. 565, 583 (1975). I’ll discuss school rules further shortly.
an “asymmetry of representation”: Turner v. Rogers, 564 U.S. 431, 447 (2011). I should say that I don’t know enough about child support proceedings to know if the Supreme Court was right in this particular instance—that is, whether, as it claimed, other procedural protections for the noncustodial parent were sufficient without a guarantee of free legal services. But the case illustrates the principle that due process inquiries should account for the interests of third parties with direct stakes in the outcome.
need to be part of the equation: Sage Carson and Sarah Nesbitt, “Balancing the Scales: Student Survivors’ Interests and the Mathews Analysis,” Harvard Journal of Law & Gender 43 (2020): 319, 343.
termination, or demotion, or suspension: See, e.g., Fed. R. Civ. Pro. 2 (“There is one form of action—the civil action.”); Paul D. Carrington, “Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure,” University of Pennsylvania Law Review 137 (1989): 2067, 2069–81 (explaining history and purpose of trans-substantive procedural rules).
There is one narrow exception to the general rule that we do not scale process to the specific offense, but it does not undermine the overarching principle. Some courts require a higher “clear and convincing” standard of evidence, rather than the usual “preponderance of the evidence,” for civil fraud lawsuits. Courts sometimes suggest that this is because fraud reflects poorly on the defendant, but the scholarly consensus is that it is a historical accident, perhaps due to unusual overlaps between contract and tort law. John Terrence A. Rosenthal and Robert T. Alter, “Clear and Convincing to Whom? The False Claims Act and Its Burden of Proof Standard: Why the Government Needs a Big Stick,” Notre Dame Law Review 75 (2000): 1409, 1432–45; Restatement (Third) of Torts: Liab. for Econ. Harm § 9 TD No. 2 (2014). The rule is truly anomalous: However painful it might be to lose a fraud suit, it is certainly a harder reputational hit to lose a civil suit for killing someone, which uses the preponderance of the evidence.
Some might also note that there are special rules of evidence, known as “rape shield laws,” that exclude evidence about parties’ and victims’ sexual history and preferences. Personally, I am ambivalent about these rules. I don’t love singling out sexual evidence, but I also recognize that these rules were created to address jurors’ deep-seated biases that derailed meritorious cases. Regardless, those aren’t really procedural rules. And there are other rules that single out certain kinds of evidence that are too likely to prejudice the proceedings. For example, evidence of some kinds of prior bad acts, but not others, are not admissible to impeach a witness.
from an entirely separate prosecution: Parties to civil suits who may risk criminal prosecution by testifying are allowed to refuse to testify without it reflecting poorly on their case, as part of their right to avoid self-incrimination. That is an accommodation to deliver defendants from a double bind with high stakes, not an allegation-specific procedural requirement.
it had “nearly ruined” his life: Patrick Witt, “A Sexual Harassment Policy That Nearly Ruined My Life,” Boston Globe, Nov. 3, 2014, https://www.bostonglobe.com/opinion/2014/11/03/sexual-harassment-policy-that-nearly-ruined-life/hY3XrZrOdXjvX2SSvuciPN/story.html.
stigma attached to the specific offense: For some lawyers, the discussion of stigma might call to mind the still-developing doctrine known as “stigma-plus.” See generally Linnet Davis-Stermitz, “Stigma Plus Whom? Evaluating Causation in Multiple-Actor Stigma-Plus Claims,” University of Chicago Law Review 84 (2017): 1883.
The basic idea of stigma-plus is this: to have due process rights, you need to have a “liberty or property interest” in whatever the government is trying to take away from you. Some examples are your interest in your tenured public job, or your interest in freedom from incarceration. Generally, if you don’t have that kind of interest, you don’t get due process protections. An injury to your reputation—for example, the government saying something negative about you publicly—won’t trigger those protections on its own. But, courts say, you might be owed due process if the government embarrassed you publicly in the process of taking something concrete away from you—even if that thing alone wasn’t a sufficient “interest.” For example, you might not have a recognizable interest in your untenured seat on the local parks committee, so if your fellow members want to remove you from the committee, they won’t need to provide you a hearing or anything like that. But let’s say that when the committee kicks you off, they put out a press release explaining that you have been dismissed for some embarrassing reason, like theft. Now you have a hit to your reputation “plus” the deprivation itself, so might be owed a hearing to clear your name.
“Stigma-plus” means that yes, sometimes the law cares about the government hurting your reputation. But this isn’t inconsistent with our rule. Even here, once your right to due process has been triggered, you don’t get extra process based on how shameful the allegation is.
CHAPTER 8: AN INCOMPLETE BLUEPRINT
The complainant, not the accused: As a technical matter, the institution might place the burden on its own investigators to prove an allegation. (This is the uncharacteristically reasonable approach taken by Betsy DeVos’s Title IX regulations, the topic of much discussion in this book.) In doing so, the institution recognizes that it must take an active role in figuring out what happened, rather than merely waiting on the two sides to provide evidence. Either way, the key point is that the respondent does not have the burden of disproving the allegation.
“truncated trial-type procedures”: Goss v. Lopez, 419 U.S. 565, 584 (1975).
American Bar Association’s Commission on Domestic & Sexual Violence: See generally ABA Commission on Domestic & Sexual Violence, Recommendations for Improving Campus Student Conduct Processes for Gender-Based Violence, 2019, https://www.americanbar.org/content/dam/aba/publications/domestic-violence/campus.pdf.
evidence that she is nervous: Suzanne B. Goldberg, “Keep Cross-Examination Out of College Sexual-Assault Cases,” Chronicle of Higher Education, Jan. 10, 2019, https://www.chronicle.com/article/Keep-Cross-Examination-Out-of/245448.
more room for a single person’s biases: It’s not inevitable that an interview will be conducted by fewer people than would sit on a hearing board. But the general trend makes sense: an interview by three people won’t look too different from a hearing, and lacks the intimacy that may make an interview model more comfortable for a victim.
at a large and unfair advantage: This is a view shared by some who represent accused students. See, e.g., Max Larkin, “New Federal Guidance Will Remake System for Handling Sexual Assault, Harassment on Campus,” WBUR, May 6, 2020.
when in untrained hands: Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56, 68–69 (1st Cir. 2019); see also Doe v. Univ. of Arkansas-Fayetteville, 974 F.3d 858, 868 (2020).
almost all federal appellate courts: E.g., Walsh v. Hodge, 975 F.3d 475, 485 (5th Cir. 2020); Univ. of Arkansas-Fayetteville, 974 F.3d at 867–78; Doe v. Colgate Univ., 760 F. App’x 22, 33 (2nd Cir. 2019); Haidak, 933 F.3d at 68–70; Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987); Doe v. Westmont Coll., 34 Cal. App. 5th 622, 635 (Cal. Ct. App. 2019).
One court, the U.S. Court of Appeals for the Sixth Circuit, has held that, where “credibility is in dispute and material to the outcome,” a public university must allow an accused student to cross-examine witnesses either directly or through a representative. In doing so, it did not explain its departure from past precedent allowing “indirect” cross-examination. Doe v. Baum, 903 F.3d 575, 584 (6th Cir. 2018).
administrators can pose each side’s questions: Those skeptical that institutions like schools and employers have the capacity to handle complex disciplinary cases may find some solace in these debates. Even the courts that demand the most trial-like processes still tailor these rules to fit within the institutions’ capacity. Whether, for example, one federal appeals court is right to require live, direct cross-examination for student discipline is an open question (which I’ll discuss shortly). But there is little doubt that schools are able to provide exactly what it requires.
universities should provide some kind of hearing: As courts have noted, this hearing is more likely to be helpful where the school’s determination turns on questions of credibility than where, for example, everyone agrees as to what occurred and the question is simply whether those facts constitute sexual harassment. In the latter case, the decision-makers do not need to hear from the parties to make a determination.
the best parts of each approach: The ABA’s Commission on Domestic & Sexual Violence has identified two possible “hybrid” models, and endorsed one. ABA Commission on Domestic & Sexual Violence, Recommendations for Improving Campus Student Conduct Processes for Gender-Based Violence, 62.
into a witch-hunting ground: For example, Daphne Merkin, “Publicly, We Say #MeToo. Privately We Have Misgivings,” New York Times, Jan. 5, 2018, https://www.nytimes.com/2018/01/05/opinion/golden-globes-metoo.html?smid=tw-nytimes&smtyp=cur&_r=1.
set of rules applies to all students: Of course, wealthy students can hire lawyers to advise them, prepare them for interviews, write their statements, and sometimes participate in the hearings. I would guess they are, statistically, more likely to get away with these behaviors because of their access to lawyers, or the school’s hope that Mom and Dad will finance new tennis courts. But there is no equivalent to the CEO contract for rich college students; they cannot negotiate for permission to sexually harass their peers just a little, or demand specific procedural protections unavailable to their classmates.
extremely carefully in disciplining top executives: Rachel Arnow-Richman, “Of Power and Process: Handling Harassers in an At-Will World,” Yale Law Journal Forum, June 18, 2018, https://www.yalelawjournal.org/forum/of-power-and-process.
CHAPTER 9: WHY PROCESS MATTERS FOR ALL
despite everything, a good guy at heart: Sam Levin, “Stanford Sexual Assault: Read the Full Text of the Judge’s Controversial Decision,” Guardian, June 14, 2016, https://www.theguardian.com/us-news/2016/jun/14/stanford-sexual-assault-read-sentence-judge-aaron-persky.
“into the victim of his own crimes”: Manne, Down Girl, 197–98.
After all, what Manne criticizes: Here is what Manne said in an interview with the New Yorker’s Isaac Chotiner: “I think we can be sympathetic toward someone within the criminal-justice system, to the extent that that’s appropriate, when we’re not thinking about victim vs. perpetrator, but when we are thinking that the state is trying to make a case that the accused committed the crime beyond a reasonable doubt.
“And that’s a very different set of propositions and provides a very different, potentially sympathetic lens for thinking about crime or a criminal act, as opposed to a public reaction to a rape case, where there is a more straightforward question of who you sympathize with primarily, the victim or the perpetrator. So I am saying that criminal law is a pretty different context than media discussions or initial reactions to someone telling you a crime was committed against them. There are interesting cases where, within a friend group, a man is accused of raping a woman in the friend group, and it is a common experience that people are disbelieving or more sympathetic toward him. And in that kind of context, I think it is pretty clear you should sympathize with the victim first and foremost.”
Isaac Chotiner, “Kate Manne on the Costs of Male Entitlement,” New Yorker, Sept. 4, 2020, https://www.newyorker.com/news/q-and-a/kate-manne-on-the-costs-of-male-entitlement.
“as objects, subject to infinite manipulation”: Jerry L. Mashaw, “Administrative Due Process: The Quest for a Dignitary Theory,” Boston University Law Review 61 (1981): 885, 901.
more likely to buy into the result: Tom R. Tyler, “Procedural Justice, Legitimacy, and the Effective Rule of Law,” Crime and Justice 30 (2003): 283, 286.
contributed to greater pay satisfaction: Robert Folger and Mary A. Konovsky, “Effects of Procedural and Distributive Justice on Reactions to Pay Raise,” Academy of Management Journal 32 (Mar. 1989): 115.
respond less negatively to the outcome: Joel Brockner et al., “Interactive Effects of Procedural Justice and Outcome Negativity on Victims and Survivors of Job Loss,” Academy of Management Journal 37 (1994): 397.
“will fall to vigilantes like Tehlirian”: David Luban, “Folktales of International Justice,” Proceedings of the Annual Meeting of the American Society of International Law 98 (2004): 182.
“citizens are left with little option”: Paul H. Robinson and Sarah M. Robinson, Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness (Amherst, NY: Prometheus Books, 2018), 43.
provost refused to remove: Tamar Lewin, “Handling of Sexual Harassment Case Poses Larger Questions at Yale,” New York Times, Nov. 1, 2014, https://www.nytimes.com/2014/11/02/us/handling-of-sexual-harassment-case-poses-larger-questions-at-yale.html.
could not share such warnings except anonymously: George Joseph and Jon Swaine, “Behind Columbia’s ‘Rape Lists’: ‘When Existing Systems Fail, What Then?,’” Guardian, June 26, 2014, https://www.theguardian.com/education/2014/jun/26/columbia-university-students-rape-list-mishandle-sexual-assault.
That woman, Moira Donegan, identified herself: Moira Donegan, “I Started the Media Men List,” The Cut, Jan. 10, 2018, https://www.thecut.com/2018/01/moira-donegan-i-started-the-media-men-list.html.
famed rape apologist Katie Roiphe: For a background on Roiphe’s rape politics, see Jennifer Gonnerman, “The Selling of Katie Roiphe,” Baffler, Dec. 1994, https://thebaffler.com/salvos/the-selling-of-katie-roiphe.
who would be on the disciplinary panel: The accused student victim was also allowed to decide whether the victim could bring her adviser to the hearing. Anne McClintock, “Who’s Afraid of Title IX?,” Jacobin, Oct. 2017, https://www.jacobinmag.com/2017/10/title-ix-betsy-devos-doe-colleges-assault-dear-colleague.
a swinging “pendulum” or “overcorrection”: Alexandra Brodsky, “A Rising Tide: Learning About Fair Disciplinary Process from Title IX,” Journal of Legal Education 66 (2017): 822; David G. Savage and Timothy M. Phelps, “How a Little-Known Education Office Has Forced Far-Reaching Changes to Campus Sex Assault Investigations,” Los Angeles Times, Aug. 17, 2015, https://www.latimes.com/nation/la-na-campus-sexual-assault-20150817-story.html; Emily Yoffe, “The College Rape Overcorrection,” Slate, Dec. 8, 2014, http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html; Robby Soave, “As the Campus Rape Narrative Unravels, Will Due Process Strike Back in 2015?,” Reason, Dec. 30, 2014.
2020 survey by Know Your IX: Know Your IX, The Cost of Reporting: Perpetrator Retaliation, Institutional Betrayal, and Student Survivor Pushout, 2021.
CHAPTER 10: THE LIMITS OF PROCESS
allow attorneys to remove potentially biased jurors: See, e.g., Vivien Toomey Montz and Craig Lee Montz, “The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law,” University of Miami Law Review 54 (2000): 451, 455–56.
seminal 1986 opinion Batson v. Kentucky: Batson v. Kentucky, 476 U.S. 79, 96–97 (1986).
Justice Thurgood Marshall, while concurring: Batson, 476 U.S. at 102–8 (Marshall, J., concurring).
too eager to accept ridiculous explanations: Shari Seidman Diamond et al., “Realistic Responses to the Limitations of Batson v. Kentucky,” Cornell Journal of Law and Public Policy 7 (1997): 77.
found this post hoc justification reasonable: United States v. Romero-Reyna, 889 F.2d 559, 561–62 (5th Cir. 1989).
“the greatest legal engine ever invented”: 5 Wigmore on Evidence § 1367; Stuart v. Alabama, 139 S. Ct. 36 (2018).
“a witness’s nervous or stumbling response”: Goldberg, “Keep Cross-Examination Out of College Sexual-Assault Cases.”
what is called an inquisitorial model: For an explanation of inquisitorial models, see David Alan Sklansky, “Anti-Inquisitorialism,” Harvard Law Review 122 (2009): 1634, 1688.
“let them eat due process”: Craig Haney, “The Fourteenth Amendment and Symbolic Legality: Let Them Eat Due Process,” Law and Human Behavior 15 (1991): 183.
violent and corrupt Chicago Police Department: Debbie Southorn and Sarah Lazare, “Officers Accused of Abuses Are Leading Chicago Police’s ‘Implicit Bias’ Training Program,” Intercept, Feb. 3, 2019, https://theintercept.com/2019/02/03/chicago-police-procedural-justice-training-complaints-lawsuits-racism/; Maudlyne Ihejirika, “‘Procedural Justice’: A Day at CPD’s Sensitivity-Training Course,” Chicago Sun-Times, Jan. 20, 2017, https://chicago.suntimes.com/news/procedural-justice-a-day-at-cpds-sensitivity-training-course/; Simone Weichselbaum, “The ‘Chicago Model’ of Policing Hasn’t Saved Chicago,” Marshall Project, Apr. 19, 2016, https://www.themarshallproject.org/2016/04/19/the-chicago-model-of-policing-hasn-t-saved-chicago.
as the theorist Dennis Fox puts it: Dennis R. Fox, “Psychological Jurisprudence and Radical Social Change,” American Psychologist 48 (1993).
people’s investment in the end result: The fact that outcome matters to people is not only common sense, but also supported by research. See, for example, Sveinung Arnesen, “Legitimacy from Decision-Making Influence and Outcome Favourability: Results from General Population Survey Experiments,” Political Studies 65 (2017); Honorata Mazepus, “What Makes Political Authorities Legitimate? Students’ Ideas About Legitimacy in Five European Democracies and Hybrid Regimes,” Contemporary Politics 23 (2017).
Franken called for an investigation: Jane Mayer, “The Case of Al Franken,” New Yorker, July 22, 2019, https://www.newyorker.com/magazine/2019/07/29/the-case-of-al-franken.
“odious,” a “smear”: Bret Stephens, “This I Believe About Blasey v. Kavanaugh,” New York Times, Sept. 21, 2018, https://www.nytimes.com/2018/09/21/opinion/blasey-kavanaugh-assault-allegations-truth.html; Bret Stephens, “The Smearing of Woody Allen,” New York Times, Feb. 9, 2018, https://www.nytimes.com/2018/02/09/opinion/smearing-of-woody-allen.html.
CHAPTER 11: STRAW FEMINISTS
“I told them all men were rapists”: Kate Beaton, “Straw Feminists in the Closet,” Hark! A Vagrant, http://www.harkavagrant.com/?id=341. In a later comic on the same theme, straw feminists explain to a girl at the mall to buy her first bra, “You don’t want a training bra little girl. You want all the men in the world to be dead.” Kate Beaton, “Straw Feminists in ‘Feminist Fun!,’” Hark! A Vagrant, http://www.harkavagrant.com/index.php?id=382.
“smug pundits / naive critics”: Sam Huber (@hubersamj), Twitter, July 9, 2019, 9:08 p.m., https://twitter.com/hubersamj/status/1148760983126650883.
Death Star to his Luke Skywalker: KC Johnson and Stuart Taylor Jr., “The ACLU’s ‘Death Star’ Client in Its Title IX Lawsuit,” RealClearPolitics, June 21, 2020, https://www.realclearpolitics.com/articles/2020/06/21/the_aclus_death_star_client_in_its_title_ix_lawsuit_143490.html; “Title IX Changes Are Coming. Can the Warring Sides Find Common Ground?,” BuzzFeed News, Sept. 22, 2017, https://www.buzzfeednews.com/article/tylerkingkade/title-ix-changes-are-coming-can-the-sides-find-common-ground.
Emily Yoffe posed a question: Emily Yoffe, “Does Anyone Still Take Both Sexual Assault and Due Process Seriously?,” Atlantic, Oct. 13, 2018, https://www.theatlantic.com/ideas/archive/2018/10/sexual-assault-has-become-partisan-issue/572893/.
“seek truth without bias”: Hanna Stotland, “I Advise Students Accused of Sexual Assault. Expelling Them Isn’t the Answer,” New York Times, July 9, 2019, https://www.nytimes.com/2019/07/09/opinion/sexual-assault-students-campus.html.
self-proclaimed feminist comedian Aziz Ansari: Katie Way, “I Went on a Date with Aziz Ansari. It Turned into the Worst Night of My Life,” Babe, Jan. 13, 2018, https://babe.net/2018/01/13/aziz-ansari-28355.
critics like Bari Weiss and Caitlin Flanagan: Bari Weiss, “Aziz Ansari Is Guilty. Of Not Being a Mind Reader,” New York Times, Jan. 15, 2018, https://www.nytimes.com/2018/01/15/opinion/aziz-ansari-babe-sexual-harassment.html; Caitlin Flanagan, “The Humiliation of Aziz Ansari,” Atlantic, Jan. 14, 2018, https://www.theatlantic.com/entertainment/archive/2018/01/the-humiliation-of-aziz-ansari/550541/.
guidance documents that detailed schools’ obligations: See, e.g., Russlynn Ali, Assistant Secretary for Civil Rights, Dear Colleague Letter on Bullying, U.S. Department of Education, Oct. 26, 2010, https://tinyurl.com/y7d8ubgb; Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, U.S. Department of Education, Office for Civil Rights, Jan. 2001, https://tinyurl.com/yaeajxkz; Norma V. Cantu, Assistant Secretary for Civil Rights, Dear Colleague Letter on Prohibited Disability Harassment, U.S. Department of Education, July 25, 2000, https://tinyurl.com/yb5jobbn; Racial Incidents and Harassment Against Students at Educational Institutions, Investigative Guidance, 59 Fed. Reg. 11448 (Mar. 10, 1994), https://tinyurl.com/y86mu9tw.
known as the “Dear Colleague Letter”: Russlynn Ali, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Department of Education, Dear Colleague Letter: Sexual Violence, Apr. 4, 2011, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.
historically given educators considerable discretion: See, e.g., Goss v. Lopez, 419 U.S. 565, 577–84 (1975); U.S. Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, Apr. 29, 2014, 13–14, https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf; U.S. Department of Education, Revised Sexual Harassment Guidance, 19–22.
must offer each side of an accusation the same rights: In doing so, I think the Dear Colleague Letter created what was then the most robust statement of accused students’ rights in federal law, an irony given the deluge of criticism. Alexandra Brodsky, “A Rising Tide: Learning About Fair Disciplinary Process from Title IX,” Journal of Legal Education 66 (2017): 822.
if the school allowed one side to appeal: Some critics have taken issue with the Department of Education permitting alleged victims to appeal. They analogize to criminal law, where prosecutors are not permitted to appeal a “not guilty” verdict. But in civil trials, plaintiffs do have the right to appeal. The Trump administration initially provided greater appellate rights to respondents than complainants, but, after criticism, decided to grant both sides an equal opportunity. See 34 C.F.R. § 106.45(b)(8).
might implement sloppy, unfair policies: Samuel R. Bagenstos, “What Went Wrong with Title IX?,” Washington Monthly, Sept./Oct. 2015, https://washingtonmonthly.com/magazine/septoct-2015/what-went-wrong-with-title-ix/.
a few different models for disciplinary procedures: In 2014, a White House task force announced the Department of Justice would research an array of models to identify best practices. Unfortunately, one model identified in that announcement as a promising possibility was a “single-investigator” process that many advocates on all sides have since criticized. The task force’s follow-up report in the last month of the Obama administration included general guidelines for fair discipline but no recommended models. The Second Report of the White House Task Force to Protect Students from Sexual Assault, Jan. 5, 2017, https://www.whitehouse.gov/sites/whitehouse.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF; Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault, Apr. 2014, 14, https://www.justice.gov/archives/ovw/page/file/905942/download.
procedural errors were absolutely not required: Erin E. Buzuvis, “Title IX and Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine the Role of Title IX in Campus Sexual Assault,” Montana Law Review 78 (2017): 71; Brodsky, “A Rising Tide”; Bagenstos, “What Went Wrong with Title IX?” As I will discuss in more detail, some critics were displeased that the department required schools to use the preponderance of the evidence in disciplining students for sexual harassment. But courts are clear that standard is consistent with due process. See, e.g., Doe v. Univ. of Arkansas-Fayetteville, 974 F.3d 858, 869 (8th Cir. Sept. 4, 2020).
forbidden schools from providing hearings: E.g., Shikha Dalmia, “In Defense of Betsy DeVos’ Title IX Plan,” The Week, Nov. 29, 2018, https://theweek.com/articles/808638/defense-betsy-devos-title-ix-plan. The closest the Dear Colleague Letter got to this was discouraging schools from allowing students to question each other directly, which it noted could be traumatizing. Even the Trump administration agreed, requiring schools to instead require students to question each other through representatives. See Alexandra Brodsky, “Repealing Title IX Guidelines on Sexual Assault: A Dialogue,” American Prospect, Oct. 27, 2017, https://prospect.org/education/repealing-title-ix-guidelines-sexual-assault-dialogue; 34 C.F.R. §106.45(b)(6).
groundbreaking work promoting fair discipline: U.S. Department of Education, “U.S. Departments of Education and Justice Release School Discipline Guidance Package to Enhance School Climate and Improve School Discipline Policies/Practices,” Jan. 8, 2014, https://www.ed.gov/news/press-releases/us-departments-education-and-justice-release-school-discipline-guidance-package-.
approached the writer Ijeoma Oluo: Ijeoma Oluo, “Due Process Is Needed for Sexual Harassment Accusations—but for Whom?,” Establishment, Nov. 30, 2017, https://theestablishment.co/due-process-is-needed-for-sexual-harassment-accusations-but-for-whom-968e7c81e6d6/index.html.
“remain largely divided along party lines”: Caroline Kitchener, “How Campus Sexual Assault Became So Politicized,” Atlantic, September 22, 2017, https://www.theatlantic.com/education/archive/2017/09/how-campus-sexual-assault-became-so-politicized/540846/.
“don’t assume women as a gender are especially deceptive”: Jude Ellison S. Doyle, “Despite What You May Have Heard, ‘Believe Women’ Has Never Meant ‘Ignore Facts,’” Elle, Nov. 29, 2017, https://www.elle.com/culture/career-politics/a13977980/me-too-movement-false-accusations-believe-women/.
“Treat women seriously”: Monica Hesse, “‘Believe Women’ Was a Slogan. ‘Believe All Women’ Is a Straw Man,” Washington Post, May 12, 2020, https://www.washingtonpost.com/lifestyle/style/believe-women-was-a-slogan-believe-all-women-is-a-strawman/2020/05/11/6a3ff590-9314-11ea-9f5e-56d8239bf9ad_story.html.
#BelieveWomen and #BelieveAllWomen: Susan Faludi, “‘Believe All Women’ Is a Right-Wing Trap,” New York Times, May 18, 2020, https://www.nytimes.com/2020/05/18/opinion/tara-reade-believe-all-women.html.
“If you’re explaining, you’re losing”: Hesse, “‘Believe Women’ Was a Slogan. ‘Believe All Women’ Is a Straw Man.”
vote of two-thirds of their chamber: U.S. Const. art. I, § 5.
“outweigh the loss of any one man’s reputation”: Emily Lindin (EmilyLindin), Twitter, Nov. 21, 2017, 3:45 p.m., https://twitter.com/emilylindin/status/933073784822579200?lang=en.
CHAPTER 12: AN “EXCEPTIONAL” HARM
the “Pence Rule”: Aaron Blake, “Mike Pence Doesn’t Dine Alone with Other Women. And We’re All Shocked,” Washington Post, Mar. 30, 2017, https://www.washingtonpost.com/news/the-fix/wp/2017/03/30/mike-pence-doesnt-dine-alone-with-other-women-and-were-all-shocked/.
“new terrain for us societally”: Kathleen Parker, “The Inevitable Unintended Consequences of #MeToo,” Washington Post, Dec. 4, 2018, https://www.washingtonpost.com/opinions/the-inevitable-unintended-consequences-of-metoo/2018/12/04/9c7e0418-f80e-11e8-8d64-4e79db33382f_story.html.
leaving messages in fake blood: See Isaac Arnsdorf, “Branford ’11 Aims to Move Beyond Rocky Start to Year,” Yale Daily News, Nov. 7, 2007, https://yaledailynews.com/blog/2007/11/07/branford-11-aims-to-move-beyond-rocky-start-to-year/.
they had more legal rights: The Campus SaVE Act requires schools to provide certain procedural protections in student discipline for sexual harassment. 20 U.S.C.A. § 1092.
not formally reported to the correct official: Under employment law, by contrast, an institution is responsible for responding to harassment that it either knew or should have known about. That was also the standard used by the Department of Education until the new rules promulgated under Trump in 2020.
unable to answer basic questions: Katie Reilley, “Here’s a Look at the Education Questions Betsy DeVos Struggled to Answer,” Time, Jan. 18, 2017, https://time.com/4637642/betsy-devos-confirmation-education-policy/.
closest she had to qualifications: See, e.g., Kristina Rizga, “Betsy DeVos Wants to Use America’s Schools to Build ‘God’s Kingdom,’” Mother Jones, Mar./Apr. 2017, https://www.motherjones.com/politics/2017/01/betsy-devos-christian-schools-vouchers-charter-education-secretary/; Paul Fain and Rick Seltzer, “Family Ties,” Inside Higher Ed, Feb. 7, 2017, https://www.insidehighered.com/news/2017/02/07/betsy-devoss-connection-college-fix-conservative-higher-education-news-site; Annie Waldman, “DeVos’ Code Words for Creationism Offshoot Raise Concerns About ‘Junk Science,’” ProPublica, Jan. 29, 2017, https://www.propublica.org/article/devos-education-nominees-code-words-for-creationism-offshoot-raise-concerns.
vice president’s tie-breaking vote: U.S. Senate Historical Office, “Occasions When Vice Presidents Have Voted to Break Tie Votes in the Senate,” Nov. 9, 2018, 9 n.3, https://www.senate.gov/artandhistory/history/resources/pdf/VPTies.pdf; Emmarie Huetteman and Yamiche Alcindor, “Betsy DeVos Confirmed as Education Secretary; Pence Breaks Tie,” New York Times, Feb. 7, 2017, https://www.nytimes.com/2017/02/07/us/politics/betsy-devos-education-secretary-confirmed.html. Some have suggested that, because she was not confirmed by a majority of the Senate, DeVos never actually became the secretary of education as a matter of constitutional law. National Center for Youth Law, Comment on Proposed Title IX Regulations 1–3, Jan. 30, 2019, https://youthlaw.org/wp-content/uploads/2018/01/NCYL-Comment-on-Title-IX-regs-1.pdf.
“90 percent” of campus rape allegations were illegitimate: Sarah Brown, “Ed. Dept. Official Apologizes for ‘90%’ Remark on Campus Rape. What’s the Research?,” Chronicle of Higher Education, July 12, 2017, https://www.chronicle.com/article/ed-dept-official-apologizes-for-90-remark-on-campus-rape-whats-the-research/.
past statements are admissible: Fed. R. Evid. 801(d)(2)(A).
much harder time proving her claim: Nicole Bedera, Seth Galanter, and Sage Carson, “A New Title IX Rule Essentially Allows Accused Sexual Assailants to Hide Evidence Against Them,” Time, August 14, 2020, https://time.com/5879262/devos-title-ix-rule. I found it telling that DeVos’s supporters’ reaction to this article was that the provision it criticized was so ridiculous it couldn’t possibly be real. Even they thought it was absurd.
victim can be cross-examined directly: 34 C.F.R. § 106.45.
School professionals prefer this preponderance standard: “[The Association for Student Conduct Administration] recommends [the preponderance of the evidence] because it is the only standard that reflects the integrity of equitable student conduct processes which treat all students with respect and fundamental fairness.” Chris Loschiavo and Jennifer Waller, The Preponderance of Evidence Standard: Use In Higher Education Campus Conduct Processes, Association for Student Conduct Administration, https://www.theasca.org/files/The%20Preponderance%20of%20Evidence%20Standard.pdf.
reserve it for harms like cheating and vandalism: The University of Maryland is one such school. It requires clear and convincing evidence of academic dishonesty, but uses the preponderance standard for all other student conduct matters. University of Maryland Code of Student Conduct, Aug. 24, 2020, 2; University of Maryland Code of Academic Integrity, Apr. 1, 2020, 3.
under DeVos’s proposed rule: Ultimately, after advocates objected, DeVos achieved the same end through different means. She dropped the requirement that schools must use clear and convincing evidence for sexual harassment if they did the same for any other student discipline. But she required that schools use the same standard for sexual harassment complaints against students and faculty. Some schools use the preponderance of the evidence for all student discipline, but, due to long-negotiated contracts, can only fire staff using a higher standard. As a result, the final rule required many schools to use a higher standard for sexual harassment than all other student discipline, without actually having to say so—a wiser legal strategy for the Department of Education.
The supposed “heightened stigma”: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462, 61,477 (Proposed Nov. 29, 2018), https://www.govinfo.gov/content/pkg/FR-2018-11-29/pdf/2018-25314.pdf.
Missouri Republicans pushed legislation: Edward McKinley, “Proposed Missouri Title IX Changes Would Give Accused More Power Than Any Other State,” Kansas City Star, Jan. 30, 2019, https://www.kansascity.com/news/politics-government/article225240190.html.
As originally drafted, the bill: For drafts and legislative histories of the House and Senate versions of the bill, see “MO SB259|2019|Regular Session,” May 17, 2019 LegiScan, https://legiscan.com/MO/bill/SB259/2019, and “MO HB573|2019|Regular Session,” March 14, 2019 LegiScan, https://legiscan.com/MO/bill/HB573/2019. On some provisions, the House and Senate versions of the bills differed slightly, and some parts of the bills were amended in committee.
his mother was a presiding judge: Elena Quinones, “Changing the Rules: Lobbyist Pressing Title IX Changes Motivated by Son’s Expulsion from WU,” Student Life, Apr. 25, 2019, https://www.studlife.com/news/2019/04/25/changing-the-rules-lobbyist-pressing-title-ix-changes-motivated-by-sons-expulsion-from-wu/; Edward McKinley, “Lobbyist’s Crusade to Change Title IX in Missouri Stems from His Son’s Expulsion,” Kansas City Star, Apr. 23, 2019, https://www.kansascity.com/news/politics-government/article228733614.html.
law or regulation that guaranteed the same: Under the Spending Clause, Congress could pass a law requiring certain disciplinary procedures at all schools that receive federal funds. To the extent the Department of Education has authority to promulgate regulations for the procedures schools use to investigate sexual harassment, it could do the same for all misconduct that schools are required by department-enforced law to investigate, including all sex-, race-, and disability-based discrimination. More broadly, though, I believe the department has authority to require certain basic procedural protections in all school discipline—not just those that so directly implicate civil rights laws—as a prophylactic against discriminatory discipline.
known as the “Discipline Guidance”: Andrew Ujifusa, “Betsy DeVos Revokes Obama Discipline Guidance Designed to Protect Students of Color,” Education Week, Dec. 21, 2018, https://blogs.edweek.org/edweek/campaign-k-12/2018/12/betsy_devos_revokes_obama_discipline_guidance_students_of_color_protect.html.
identify any troubling patterns: Catherine E. Lhamon, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Department of Education, and Jocelyn Samuels, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Dear Colleague Letter on the Nondiscriminatory Administration of Student Discipline, Jan. 8, 2014, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html. The guidance document also included interpretations of Title IV, another race discrimination statute, though the letter is best known for its discussion of Title VI.
more than five times as likely: District of Columbia Office of the State Superintendent of Education, State of Discipline: 2017–2018 School Year, https://osse.dc.gov/sites/default/files/dc/sites/osse/page_content/attachments/2017-18%20School%20Year%20Discipline%20Report.pdf.
rates had been even worse: District of Columbia Office of the State Superintendent of Education, Reducing Out-of-School Suspensions and Expulsions in District of Columbia Public and Public Charter Schools, https://osse.dc.gov/sites/default/files/dc/sites/osse/page_content/attachments/2013-14%20School%20Year%20OSSE%20Discipline%20Report.pdf.
published a letter in the New York Times: Hans Bader, Letter to the Editor, New York Times, Dec. 11, 2018, https://www.nytimes.com/2018/12/11/opinion/letters/colleges-sexual-assault.html.
Yet he had long waged war: Hans Bader, “The Trump Administration Got It Right on School-Discipline Policy,” Washington Post, Dec. 26, 2018, https://www.washingtonpost.com/opinions/the-trump-administration-got-it-right-on-school-discipline-policy/2018/12/26/0e4ed27e-07ba-11e9-8942-0ef442e59094_story.html; Hans Bader et al., “A Review of Department of Education Programs: Transgender Issues, Racial Quotas in School Discipline, and Campus Sexual Assault Mandates,” Regulatory Transparency Project of the Federalist Society, Sept. 12, 2017, https://regproject.org/wp-content/uploads/RTP-Race-Sex-Working-Group-Paper.pdf; Russell Skiba et al., “Race Is Not Neutral: A National Investigation of African American and Latino Disproportionality in School Discipline,” School Psychology Review 40 (2011).
if it benefited white people: Professor Nancy Chi Cantalupo argues that the new Title IX regulations’ focus on protecting accused students’ rights served as an anti–civil rights “beachhead,” “a foothold, one that can be used to launch an effort to expand” the Trump and DeVos administration’s assault on student civil rights. Nancy Chi Cantalupo, “Dog Whistles and Beachheads: The Trump Administration, Sexual Violence & Student Discipline in Education,” Wake Forest Law Review 54 (2019): 303, 306–7.
According to the Department of Education’s data: In that year, 0.1 percent of Asian boys and 0.2 percent of white boys in K-12 schools were “disciplined for engaging in harassment or bullying” based on sex, compared to 0.3 percent of Black and Hispanic boys and 0.4 percent of American Indian/Alaska Native boys. United States Government Accountability Office, Report to Congressional Requesters, K-12 Education: Discipline Disparities for Black Students, Boys, and Students with Disabilities 89 (Mar. 2018), https://www.gao.gov/assets/700/690828.pdf.
My friend Kayla Patrick, an education policy expert and statistics whiz, crunched some numbers for me and concluded that, nationally, 35 percent of Black boys were disciplined by their schools, which was three times the rate at which white boys were disciplined. That is twice the disparity related to sex-based misconduct.
None of this is to say we shouldn’t be worried about race-based disparities for sexual harassment, even if they are worse for other misconduct. And I could believe that ameliorating discriminatory patterns may be particularly difficult for student discipline that depends on another student’s allegation, since race will affect not only how a school responds to a report but also which reports classmates lodge in the first place—an issue process cannot cure.
Take Colgate University. The school was the subject of an antidiscrimination complaint with the Department of Education for mistreatment of students of color accused of sexual assault. Black and Asian students made up a disproportionate number of the forty-four students reported to Colgate for sexual assault over the three academic years between 2012 and 2015, fourteen of whom were referred to formal disciplinary hearings. Yet the department found no legal violation because it concluded Black and Asian students who were accused of sexual assault were not more likely than white students reported for the same offenses to be referred to a formal hearing or, if found responsible, expelled. See Closure Letter to Melissa Kagle from Anna Moretto Cramer, Department of Education, Apr. 19, 2017.
It’s hard to draw any definite lessons from such a small number of cases. But the complaint against Colgate points to the issue of racially disparate inputs to a disciplinary system, which are harder to solve precisely because they can’t be directly attributed to the school’s policies or procedures. Racially disparate reporting patterns may result both from over-reporting of students of color due to racism in the student body and the under-reporting of white students due to their social dominance. Both are urgent issues, and neither is susceptible to an obvious legal intervention or solved by new procedures.
CHAPTER 13: THE ROOTS OF EXCEPTIONALISM
“inconsistent with due process for accused sex criminals”: Graeme Wood, “Harvard’s Feast of Grievance,” Atlantic, May 15, 2019, https://www.theatlantic.com/ideas/archive/2019/05/ronald-sullivan-was-fired-harvard-does-it-matter/589471.
“sexual conduct and quasi-judicial tribunals”: Judith Levine, “Is Stealthing a Sex Crime?,” Boston Review, June 21, 2017, http://bostonreview.net/gender-sexuality/judith-levine-stealthing-sex-crime/.
“turning [Keillor] into a criminal”: Abby Ohlheiser, “Here’s Why the Garrison Keillor Allegations Stand Out,” Washington Post, Dec. 1, 2017, https://www.washingtonpost.com/news/arts-and-entertainment/wp/2017/12/01/heres-why-the-garrison-keillor-allegations-stand-out/.
Even before the 2011 letter, most schools: Jake New, “Burden of Proof in the Balance,” Inside Higher Ed, Dec. 26, 2016, https://www.insidehighered.com/news/2016/12/16/will-colleges-still-use-preponderance-evidence-standard-if-2011-guidance-reversed.
best balances the interests of both people: William Kidder, “(En)forcing a Foolish Consistency? A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings,” Journal of College and University Law 45 (2020): 1.
discipline can come with serious stakes: I think this is particularly true for students. My unscientific assumption is that expulsion is more likely to have a profound effect on a person than termination is, especially since employers are, for legal reasons, often unable to disclose the reasons a worker was fired. One possible compromise would be to use the preponderance standard to come to any finding that bears on the complainant’s rights (for example, requiring the harasser to move out of the victim’s dorm, or suspending him until she graduates), but to require clear and convincing evidence for punishment that does not serve to protect the complainant’s education, such as permanently expelling the harasser. That calculus, of course, ignores the threat the accused might pose to other students upon his return, even if the victim has since graduated.
its use in student discipline is constitutional: See, e.g., Doe v. Univ. of Arkansas-Fayetteville, 974 F.3d 858, 868 (8th Cir. 2020) (“While there is a substantial legal and policy debate about whether a more demanding standard is appropriate … we do not think a higher standard of proof is compelled by the Constitution. The preponderance standard ‘is commonly used in civil proceedings, even to decide matters of great importance.’ … As the district court observed, a civil action for sexual battery is governed by a preponderance standard, despite the potential for damages and similar consequences for an accused’s reputation.… Doe cites no authority holding that due process requires a higher standard of proof in university disciplinary proceedings or comparable civil actions. A heightened burden of proof may lessen the risk of erroneous deprivations for an accused, but it also could frustrate legitimate governmental interests by increasing the chance that a true victim of sexual assault is unable to secure redress and a sexual predator is permitted to remain on campus. We conclude that the choice between the competing standards of proof is within the range of options available to a public university under the Constitution.”).
Even the Trump administration required schools: See, e.g., Resolution Agreement, Indep. Sch. Dist. No. 1 of Woods City, Oklahoma, OCR Case No. 07–15–1154, 9 (Sept. 28, 2017) (requiring school use preponderance standard for disability-based harassment), https://tinyurl.com/yak27ens; Resolution Agreement, BASIS Scottsdale, OCR Case No. 08–16–1676, 2 (Mar. 20, 2017) (requiring school use preponderance standard for racial harassment), https://tinyurl.com/y7kkzr66.
“When Does a Watershed Become a Sex Panic?”: Masha Gessen, “When Does a Watershed Become a Sex Panic?,” New Yorker, Nov. 14, 2017, https://www.newyorker.com/news/our-columnists/when-does-a-watershed-become-a-sex-panic. Gessen’s article is full of significant errors. For one, it inaccurately describes the preponderance standard as a mechanism to “shift the burden of proof from the accuser to the accused.” That would, indeed, be an affront to fairness. But it is simply not true. Whether the standard is “preponderance” or “clear and convincing,” it is the injured party who must provide evidence to meet that line. Gessen also wrongly identified the source of the policy as the Justice Department, rather than the Department of Education. That might seem like a petty quibble, but it speaks to how frequently high-profile writers opine on this subject without, it seems, doing basic research.
“conflicts with due-process protections”: American Association of University Professors, The History, Uses, and Abuses of Title IX, 2016, https://www.aaup.org/report/history-uses-and-abuses-title-ix.
“a presumption of male guilt”: Peter Berkowitz, “College Rape Accusations and the Presumption of Male Guilt,” Wall Street Journal, Aug. 20, 2011, https://www.wsj.com/articles/SB10001424053111903596904576516232905230642.
sued Harvard for denying him tenure: “Case Dismissed,” Harvard Magazine, Sept.–Oct. 2003, https://web.archive.org/web/20071005205654/http://www.harvardmagazine.com/on-line/090364.html; Mark Brodin and Michael Avery, Handbook of Massachusetts Evidence § 3.3.2 (8th ed. 2020).
closer to that used in criminal trials: Foundation for Individual Rights in Education, Standard of Evidence Survey, Oct. 28, 2011, https://www.thefire.org/standard-of-evidence-survey-colleges-and-universities-respond-to-ocrs-new-mandate/.
not only used for suits for money damages: The preponderance standard is also used in civil lawsuits where the plaintiff seeks other outcomes, including what are known as “injunctions”—basically, a court order for the other side to do or not do something. The consequences of that injunction can be sweeping: a state might be required to reduce its prison population dramatically, or a business might be ordered to stop selling its product. The preponderance standard is also used for serious disciplinary matters like the revocation of professional licenses due to misconduct. See Kidder, “(En)forcing a Foolish Consistency?”
“imposed upon without great care and vigilance”: Matthew Hale, The History of the Pleas of the Crown, vol. 1 (London: Professional Books, 1972 [1678]), 635.
Hale’s views were animated: Peggy Reeves Sanday, A Woman Scorned: Acquaintance Rape on Trial (Berkeley: University of California Press, 1997), 58.
“out to blackmail the man who seduced her”: Sanday, A Woman Scorned, 59.
“giving defendants in witchcraft trials the same benefit”: Sanday, A Woman Scorned, 61–63.
“entertained friends with jokes about it”: G. Geis, Lord Hale, Witches, and Rape, British Journal of Law and Society 5 (1978): 26–27, www.jstor.org/stable/1409846.
more women were executed for witchcraft: Sanday, A Woman Scorned, 63.
the lowest of any capital crime: Sanday, A Woman Scorned, 58.
unusually suspicious of the charges before them: People v. Rincon–Pineda, 538 P.2d 247, 254–55 (1975); A. Thomas Morris, “The Empirical, Historical and Legal Case Against the Cautionary Instruction: A Call for Legislative Reform,” Duke Law Journal 1988 (1988): 154.
“difficulty of determining the truth”: Model Penal Code § 213.6(4).
amendments to the Model Penal Code’s treatment: American Law Institute, “Model Penal Code: Sexual Assault and Related Offenses,” https://www.ali.org/projects/show/sexual-assault-and-related-offenses/ (as of December 8, 2020).
stop requiring judges to echo Lord Hale’s words: See, e.g., Michelle J. Anderson, “The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault,” Boston University Law Review 84 (2004): 945, 973–77.
“fraud and narcotics transactions”: Rincon-Pineda, 538 P.2d at 254.
effectively “he said, she said” situations: Michelle Sharpe, “The Justice System Runs on Testimonial, ‘He-Said She-Said’ Evidence,” Establishment, Jan. 8, 2019, https://theestablishment.co/the-justice-system-runs-on-testimonial-he-said-she-said-evidence/.
converge on rates between 2 and 8 percent: Lonsway et al., False Reports. The upper end of the range is slightly higher than the corresponding rate for some (though not all) other crimes, but derives from studies that applied less scrutiny to police classifications of reports. David Lisak et al., “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases,” Violence Against Women 16 (2010): 1318, https://journals.sagepub.com/doi/10.1177/1077801210387747; Emily Moon, “False Reports of Sexual Assault are Rare. But Why Is There So Little Reliable Data About Them?,” Pacific Standard, Oct. 7, 2018, https://psmag.com/news/false-reports-of-sexual-assault-are-rare-but-why-is-there-so-little-reliable-data-about-them.
One study came to a 10 percent rate by including reports filed by the alleged victims’ relatives or boyfriends. If the study was limited to reports only from the putative victims themselves, the number drops to 6 percent. Lisak et al., “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases,” 1324.
significantly more likely to be sexually assaulted: Cindy Dampier, “Your Son Is More Likely to Be Sexually Assaulted Than to Face False Allegations. Explaining the Fear of #HimToo,” Chicago Tribune, Oct. 12, 2018, https://www.chicagotribune.com/lifestyles/ct-life-false-rape-allegations-20181011-story.html; Tyler Kingkade, “Males Are More Likely to Suffer Sexual Assault Than to Be Falsely Accused of It,” Huffington Post, Dec. 8, 2014.
1994 study by Eugene Kanin: Eugene J. Kanin, “False Rape Allegations,” Archives of Sexual Behavior 23 (1994): 81.
“violates a cardinal rule of science”: David Lisak, “False Allegations of Rape: A Critique of Kanin,” Sexual Assault Report 11 (2007): 1, quoted by Lonsway et al., False Reports.
“the greater the scrutiny applied”: Lisak et al., “False Allegations of Sexual Assault,” 1331.
a then recent Pentagon study: Rowan Scarborough, “False Sex Assault Reports Not as Rare as Reported, Studies Say,” Washington Times, Oct. 7, 2018, https://apnews.com/b5c40b513448cfc1269d51d923bb76f7.
retained it, though, for sexual violence: State v. Hill, 578 A.2d 370, 374–75 (N.J. Sup. Ct. 1990).
all-male Utah Supreme Court postulated: State v. Neel, 60 P. 510, 511 (Utah 1900).
Supreme Court of Illinois reinforced: People v. Lawler, 568 N.E.2d 895, 901 (III. 1991).
three months for sexual offenses: Model Penal Code § 213.6(4); Susan Estrich, “Rape,” Yale Law Journal 95 (1986): 1087, 1139.
except for murder, which has none: Model Penal Code § 1.06.
“The requirement of prompt complaint springs”: Model Penal Code § 213.6 comment at 421.
“attentive to the problem of the vindictive, spurned woman”: Estrich, “Rape,” 1150.
Luckily, the states have outpaced the Model Penal Code: Anderson, “The Legacy of the Prompt Complaint Requirement,” 964–68.
New York legislature in 1886: Anderson, “The Legacy of the Prompt Complaint Requirement,” at 956–57.
corroboration was required only for the rape: People v. Moore, 245 N.E.2d 710 (N.Y. 1969).
“most women” have rape fantasies: Note, “The Corroboration Rule and Crimes Accompanying a Rape,” University of Pennsylvania Law Review 118 (1970): 458. In 1967, the Columbia Law Review published another article about the corroboration requirement, which opined on “the inordinate danger that innocent men will be convicted of rape.” Note, “Corroborating Charges of Rape,” Columbia Law Review 67 (1967): 1137–38. “Surely the simplest, and perhaps the most important reason not to permit conviction for rape on the uncorroborated word of the prosecutrix is that that word is very often false,” the author wrote without any citation to supporting evidence.
“the man is powerless”: Davis v. State, 48 S.E. 180, 181–82 (Ga. 1904).
in a rare moment of insight: Hale, The History of the Pleas of the Crown, 633. The dissent to the same Georgia case points this out, citing William Blackstone, whose Commentaries on the Laws of England devoted significant space to Hale’s views.
“The unchaste (let us call it) mentality”: State v. Anderson, 137 N.W.2d 781 (1965).
“all too frequently have an urge to fantasize”: United States v. Wiley, 492 F.2d 547, 550 (D.C. Cir. 1973) (internal quotation marks omitted). I find the concurrence to this opinion very interesting. There, progressive Chief Judge David L. Bazelon acknowledged feminist critiques of the corroboration rule. He also acknowledged that the usual justifications for the rule were unsupported by evidence, and seemed aware that this rule would be looked upon unfavorably by future generations of lawyers. And yet he nonetheless joined the majority opinion requiring corroboration.
though only a handful of states today: Benjamin Rachlin, “Who to Believe,” New Republic, Dec. 3, 2018, https://newrepublic.com/article/152305/who-to-believe-sexual-assault; Kathleen Ronayne, “State Considers Requiring Corroboration in Sex Assault Cases,” Associated Press, Jan. 17, 2017, https://apnews.com/94305d0b97a34eedbd77cd0332904890; Anderson, “The Legacy of the Prompt Complaint Requirement,” 968–73.
“cultural dirt from the criminal law”: Anderson, “The Legacy of the Prompt Complaint Requirement,” 950.
That adjacent room includes institutional responses: Anderson, “The Legacy of the Prompt Complaint Requirement,” 950; Michelle J. Anderson, “Campus Sexual Assault Adjudication and Resistance to Reform,” Yale Law Journal 125 (2016): 1940, 2000.
We see it, unsubtly, in the “justifications”: See, e.g., Barclay Sutton Hendrix, “A Feather on One Side, A Brick on the Other: Tilting the Scale Against Males Accused of Sexual Assault in Campus Disciplinary Proceedings,” Georgia Law Review 47 (2013): 591, 615–16 (claiming rape accusations “nearly always involve a ‘he said, she said’ dispute”); Stephen Henrick, “A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses,” Northern Kentucky Law Review 40 (2013): 49, 66 (“The evidence of what happened in a typical sexual assault case is usually murky and prone to an increased risk of erroneous conviction.”); Berkowitz, “College Rape Accusations and the Presumption of Male Guilt.”
“where erotic desire is involved”: Berkowitz, “College Rape Accusations and the Presumption of Male Guilt.”
CHAPTER 14: EXCEPTIONS TO EXCEPTIONALISM
As Michelle Anderson has extensively documented: Anderson, “The Legacy of the Prompt Complaint Requirement,” 950, 990–95.
submitted a list of fifteen witnesses: Anderson, “The Legacy of the Prompt Complaint Requirement,” 991.
weren’t allowed to tell their side of the story: Letter of Findings to Martha Minow from Joel J. Berner, Department of Education, Dec. 30, 2014, https://www.clearinghouse.net/chDocs/public/ED-MA-0005-0001.pdf.
a new university-wide disciplinary system for sexual harassment: Resolution Agreement, Harvard Law School, Dec. 2014, https://www.clearinghouse.net/chDocs/public/ED-MA-0005-0002.pdf.; Harvard University, Procedures for Handling Complaints Involving Students Pursuant to the Sexual and Gender-Based Harassment Policy, 2014, https://hls.harvard.edu/content/uploads/2014/09/harvard_sexual_harassment_procedures_student1.pdf.
no live, adversarial hearing with cross-examination: Peer Dispute, Student Conduct Process, Harvard College Administrative Board, https://adboard.fas.harvard.edu/peer-dispute-0 (as of June 2020); Governance, Harvard University Graduate School of Arts and Sciences, https://gsas.harvard.edu/codes-conduct/governance (as of June 2020). Older copies on file with the author.
One difference was that, for nonsexual grievances handled by the college and Faculty of Arts and Sciences graduate schools, generally a group of people make a decision about whether the conduct occurred, while the default was for a single person to make the decision when it came to sexual harassment. Some believe that the latter alternative is better for victims, because it allows them to recount their experiences privately. I am not convinced. Plenty of victim-advocates think this model is faulty, too, because they are just as likely to be hurt by a bad investigator. I’d prefer a multi-person decision. That said, there is nothing inherently unfair about one person, rather than a group, making a factual decision. Trial-level judges do it all the time.
be “sufficiently persuaded”: Brief in Support of Defendants’ Memorandum in Support of Their Motion to Dismiss the Complaint, Sonoiki v. Harvard University et al., ECF No. 24 at 13.
used live hearings with cross-examination: Harvard Law School Handbook of Academic Policies 2020–2021, Procedures for Disciplinary Cases, https://hls.harvard.edu/dept/academics/handbook/rules-relating-to-law-school-studies/xii-administrative-board/b-procedures-for-disciplinary-cases-except-for-cases-covered-under-the-law-schools-interim-sexual-harassment-policies-and-procedures-see-appendix-viii/. Older policies on file with the author.
public letter in the Boston Globe: These criticisms were: “[1] The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing; [2] The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial; [3] The failure to ensure adequate [legal] representation for the accused, particularly for students unable to afford representation.” Elizabeth Bartholet et al., “Rethink Harvard’s Sexual Harassment Policy,” Boston Globe, Oct. 14, 2014, https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html. Despite public commentary to the contrary, none of the specific procedures the professors were concerned about had been required by the Department of Education.
Anderson, the rape law scholar, notes: Anderson, “Campus Sexual Assault Adjudication,” 1985.
legal theorist Katharine Baker points out: Katharine A. Baker, “Campus Misconduct, Sexual Harm and Appropriate Process: The Essential Sexuality of It All,” Journal of Legal Education 66 (2017): 4.
One signatory, Jeannie Suk Gersen: There was no legal impediment to Harvard Law correcting this asymmetry by using the same procedures and standards for racial harassment that it was, by university policy, required to use for sexual harassment.
in that way, anti-exceptional: One demand was exceptional even in the context of the law school. The professors demanded that law students facing discipline for sexual allegations be provided free counsel; this was not guaranteed for students facing discipline for nonsexual harms, though the law school says it will “attempt to assist a student who needs and desires but cannot afford counsel.” See Harvard Law School Handbook of Academic Policies, 90; Anderson, “Campus Sexual Assault Adjudication,” 1985.
much more like its usual discipline process: HLS Sexual Harassment Resources and Procedures for Students, Dec. 18, 2014, https://hls.harvard.edu/content/uploads/2019/08/HLS-Student-Procedure-Re-Posted-8-15-19-accessible.pdf.
allies cited the Harvard Law episode: E.g., Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462, 61,464 at nn.2 & 3 (Proposed Nov. 29, 2018), https://www.govinfo.gov/content/pkg/FR-2018-11-29/pdf/2018-25314.pdf; George Leef, “New Title IX Regulations Restore Due Process—But There’s a Battle Ahead,” James G. Martin Center, May 15, 2020, https://www.jamesgmartin.center/2020/05/new-title-ix-regulations-restore-due-process-but-theres-a-battle-ahead/; KC Johnson, “Four Reasons to Support the DeVos Title IX Rewrite,” Minding the Campus, Feb. 6, 2019, https://www.mindingthecampus.org/2019/02/06/four-reasons-to-support-the-devos-title-ix-rewrite; Betsy Devos, “Secretary DeVos Prepared Remarks on Title IX Enforcement,” U.S. Department of Education, Sept. 7, 2017, https://www.ed.gov/news/speeches/secretary-devos-prepared-remarks-title-ix-enforcement.
so it seemed at first glance: The letter writers did not, in fact, support the full DeVos regulations, which prohibited some parts of the new process they designed after their successful protest. Three of the signatories to the Boston Globe letter submitted a comment to the Education Department explaining that while they agreed with parts of the new regulations, they disagreed with others, including the direct cross-examination requirement and the narrow definition of sexual harassment. Simon C. Chu and Iris M. Lewis, “Harvard Law School Professors Issue Comment on Title IX Changes,” Harvard Crimson, Jan. 31, 2019, https://www.thecrimson.com/article/2019/1/31/devos-faculty-members-respond/.
Not all sexual harassment victims find it life-changing: For feminist criticisms of exceptionalizing rape as a uniquely devastating harm, see, e.g., Charlotte Shane, “Live Through This,” New Inquiry, July 26, 2012, http://thenewinquiry.com/essays/live-through-this/ (“It is unforgivable to publicly question the mythologizing of rape’s status as the ruination of all women who go through it.”); Jenny Diski, “Diary: Rape-Rape,” London Review of Books 31 (Nov. 5, 2009): 52, http://www.lrb.co.uk/v31/n21/jenny-diski/diary (“I didn’t think that it was the most terrible thing that had ever happened to me. It was a very unpleasant experience, it hurt and I was trapped. But I had no sense that I was especially violated by the rape itself, not more than I would have been by any attack on my person and freedom. In 1961 it didn’t go without saying that to be penetrated against one’s will was a kind of spiritual murder.”).
CHAPTER 15: UGLY HISTORIES
Chief Judge David L. Bazelon: United States v. Wiley, 492 F.2d 547, 555–56 (D.C. Cir. 1973) (Bazelon, C.J., concurring).
influential defenders of DeVos’s rules: See, e.g., Bader, Letter to the Editor; Dalmia, “In Defense of Betsy DeVos’ Title IX Plan”; Lara Bazelon, “I’m a Democrat and a Feminist. And I Support Betsy DeVos’s Title IX Reforms,” New York Times, December 4, 2018, https://www.nytimes.com/2018/12/04/opinion/-title-ix-devos-democrat-feminist.html. See also Madison Pauly, “It’s Hard Enough for Student Sexual Assault Survivors. Missouri Lawmakers Are Trying to Make It Even Worse,” Mother Jones, April 1, 2019, https://www.motherjones.com/politics/2019/04/missouri-student-sexual-assault-title-ix-mcintosh-steward/, noting defense of exceptionalist Missouri bill on the basis of a unique threat to Black men. Notably, none of these defenses suggest expanding proposed rights for accused harassers to students accused of other misconduct. Relatedly, critiques that post–Dear Colleague Letter, pre-DeVos disciplinary procedures for sexual harassment disproportionately affected men of color were nearly always divorced from any concern about, or even acknowledgment of, race discrimination in student discipline writ large. See, e.g., Emily Yoffe, “The Question of Race in Campus Sexual-Assault Cases,” Atlantic, Sept. 11, 2017.
that research is limited: Student discipline rates were discussed in chapter 12. That data is self-reported by K-12 schools, and we lack analogous national data for higher education or employment. For discussion of racial disparities in convictions of sex offenses, see Judith Levine and Erica Meiners, “Are Sex Offenders White?,” Counterpunch, Apr. 11, 2016, https://www.counterpunch.org/2016/04/11/are-sex-offenders-white.
“Lynching was merely an excuse”: Chris Linder, “Reexamining Our Roots: A History of Racism and Antirape Activism” in Intersections of Identity and Sexual Violence on Campus: Centering Minoritized Students’ Experience, eds. Jessica C. Harris and Chris Linder (Sterling, VA: Stylus Publishing, 2017), chapter 3; see also Crystal Nicole Feimster, Southern Horrors: Women and the Politics of Rape and Lynching (Cambridge, MA: Harvard University Press, 2009).
“The closer a Negro got to the ballot box”: E. C. L. Adams and R. G. O’Meally, Tales of the Congaree (Chapel Hill: University of North Carolina Press, 2014), lxi.
sex between Black men and white women was presumptively criminal: Dorsey v. State, 34 S.E. 135, 136–37 (Ga. 1899); see also Estelle B. Freedman, Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation (Cambridge, MA: Harvard University Press, 2013), 94.
fifteen-year-old Willie James Howard: Gilbert King, Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America (New York: Harper, 2012).
her claim was “not true”: Richard Pérez-Peña, “Woman Linked to 1955 Emmett Till Murder Tells Historian Her Claims Were False,” New York Times, Jan. 27, 2017, https://www.nytimes.com/2017/01/27/us/emmett-till-lynching-carolyn-bryant-donham.html.
still overrepresented on sex offender registries: Levine and Meiners, “Are Sex Offenders White?”
Black defendants are wrongfully convicted of rape: Samuel R. Gross, Maurice Possley, and Klara Stephens, “Race and Wrongful Convictions in the United States,” National Registry of Exonerations, Newkirk Center for Science and Society 2017, 11–15, https://repository.law.umich.edu/other/122/. Surprisingly, there is some data that Black people arrested for sexual assault are less likely to be convicted and receive shorter sentences than their white counterparts (though that isn’t true for other violent crimes). One explanation might be that police arrest Black people for sexual assault on thinner evidence than they arrest white people. Another is that because rape is overwhelmingly intra-racial, these discrepancies may reflect disparate concern for Black and white victims. Christopher D. Maxwell, Amanda L. Robinson, and Lori A. Post, “The Impact of Race on the Adjudication of Sexual Assault and Other Violent Crimes,” Journal of Criminal Justice 31 (2003): 523, 533–34, https://doi.org/10.1016/j.jcrimjus.2003.08.005.
as of 2019, Trump remained unshaken: Jan Ransom, “Trump Will Not Apologize for Calling for Death Penalty over Central Park Five,” New York Times, June 18, 2019, https://www.nytimes.com/2019/06/18/nyregion/central-park-five-trump.html.
very same white men who lynched Black men: Feimster, Southern Horrors, 37 (citing Wells’s memoir Crusade for Justice).
KKK used the gang rape of Black women: Carolyn M. West and Kalimah Johnson, “Sexual Violence in the Lives of African American Women,” VAWnet.org, Mar. 2013, https://vawnet.org/sites/default/files/materials/files/2016-09/AR_SVAAWomenRevised.pdf.
“practically unheard of”: Sharon Block, Rape and Sexual Power in Early America (Chapel Hill: University of North Carolina Press, 2006), 65.
not legally permitted to even file a rape charge: Crystal N. Feimster, “When Black Women Reclaimed Their Bodies,” Slate, Feb. 2, 2018, https://slate.com/human-interest/2018/02/how-formerly-enslaved-black-women-fought-for-human-dignity-and-sexual-justice.html.
“a trespass against the slave woman’s master”: Peter W. Bardaglio, “Rape and the Law in the Old South: ‘Calculated to Excite Indignation in Every Heart,’” Journal of Southern History 60 (1994): 749, 756.
“The crime of rape does not exist”: Bardaglio, “Rape and the Law in the Old South,” 758–59 (quoting George [a Slave] v. the State, 37 Miss., 316 [1859]).
declined to place any restrictions on white men’s legal right: Jennifer Wriggins, “Rape, Racism, and the Law,” Harvard Women’s Law Journal 6 (1983): 103, 118 n.93.
judge held that a “master”: “Sexual Exploitation of Black Women,” Equal Justice Initiative, Aug. 8, 2016, https://eji.org/news/history-racial-injustice-sexual-exploitation-black-women/.
were lynched by mobs: Freedman, Redefining Rape, 98.
“traded sex for candy”: Brittany Slatton and April Richard, “Black Women’s Experiences of Sexual Assault and Disclosure: Insights from the Margins,” Sociology Compass 14 (2020); Freedman, Redefining Rape, 87.
“from 25 cents to $1”: L. F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow (New York: Knopf, 1998), 269.
less likely to be chaste than white women: Darci E. Burrell, “Myth, Stereotype, and the Rape of Black Women,” UCLA Women’s Law Journal 4 (1993): 87, 93, and n.31.
unusually untrustworthy and unusually promiscuous: Comment, “Police Discretion and the Judgment That a Crime Has Been Committed: Rape in Philadelphia,” University of Pennsylvania Law Review 117 (1968): 277, 304; see also Wriggins, Rape, Racism, and the Law, 122.
groundwork for what became the civil rights movement: Danielle L. McGuire, At the Dark End of the Street: Black Women, Rape, and Resistance—A New History of the Civil Rights Movement from Rosa Parks to the Rise of Black Power (New York: Vintage Books, 2011); Feimster, Southern Horrors.
In 1944, Recy Taylor: Allyson Hobbs, “One Year of #MeToo: The Legacy of Black Women’s Testimonies,” New Yorker, Oct. 10, 2018, https://www.newyorker.com/culture/personal-history/one-year-of-metoo-the-legacy-of-black-womens-testimonies.
case never went to trial: Sewell Chan, “Recy Taylor, Who Fought for Justice After a 1944 Rape, Dies at 97,” New York Times, Dec. 29, 2017, https://www.nytimes.com/2017/12/29/obituaries/recy-taylor-alabama-rape-victim-dead.html.
direct predecessors of the Montgomery bus boycotts: McGuire, At the Dark End of the Street.
The Rape of Recy Taylor: Hobbs, “One Year of #MeToo.”
stereotypes that persist today: See, e.g., Burrell, “Myth, Stereotype, and the Rape of Black Women,” 92–93; Wriggins, Rape, Racism, and the Law, 122.
refused to cooperate with prosecutors: Elizabeth A. Harris and Robert Chiarito, “In Turnabout, a Key Witness Is Cooperating in R. Kelly Case,” New York Times, July 16, 2019, https://www.nytimes.com/2019/07/16/arts/music/r-kelly-sexual-assault-tape.html.
Audience dollars and tax dollars: Motolani Alake, “Meet Oronike Odeleye, the Co-founder of the #MuteRKelly Campaign,” Pulse, Aug. 16, 2018, https://www.pulse.ng/gist/profile-meet-oronike-odeleye-the-co-founder-of-the-muterkelly-campaign/pj2shcj.
an ill-advised interview with Gayle King: Elizabeth A. Harris, “How Gayle King Kept Her Cool in the R. Kelly Interview,” New York Times, Mar. 8, 2019, https://www.nytimes.com/2019/03/08/arts/gayle-king-r-kelly-interview.html.
idea that Black girls are “fast”: Saida Grundy, “The Flawed Logic of R. Kelly’s Most Unlikely Supporters,” Atlantic, Jan. 10, 2019, https://www.theatlantic.com/entertainment/archive/2019/01/why-some-women-still-support-r-kelly/579985/.
“a knee-jerk reaction to protect Black men”: Terry Gross, “‘Surviving R. Kelly’ Producer Dream Hampton Takes On Ecosystem That Supported the Star,” NPR, Feb. 20, 2019, https://www.npr.org/2019/02/20/695083431/surviving-r-kelly-producer-dream-hampton-takes-on-ecosystem-that-s-supported-him/.
“‘Save Our Brotha’ (‘SOB’) playbook”: Kimberlé Williams Crenshaw, “I Believe I Can Lie,” Baffler, Jan. 17, 2019, https://thebaffler.com/latest/i-believe-i-can-lie-crenshaw.
“a white preoccupation incompatible with antiracism”: Kimberlé Crenshaw, “We Still Haven’t Learned from Anita Hill’s Testimony,” New York Times, September 27, 2018, https://www.nytimes.com/2018/09/27/opinion/anita-hill-clarence-thomas-brett-kavanaugh-christine-ford.html.
“they’re slipping through the cracks”: Nia Evans, “Dear Betsy DeVos: Fighting for Survivors of Sexual Violence Is a Racial Justice Fight,” Feministing, Dec. 15, 2017, http://feministing.com/2017/12/15/dear-betsy-devos-fighting-for-survivors-of-sexual-violence-is-a-racial-justice-fight/.
“rendering Black sexual assault survivors invisible”: Wagatwe Wanjuki, “How Betsy DeVos’ Proposed Title IX Changes Would Hurt Black Campus Rape Survivors,” Medium, Jan. 30, 2019, https://medium.com/@wagatwe/how-betsy-devos-proposed-title-ix-changes-would-hurt-black-campus-rape-survivors-46652869b06f.
Lara Bazelon, a lawyer and professor: Bazelon, “I’m a Democrat and a Feminist. And I Support Betsy DeVos’s Title IX Reforms.”
letter to the editor revealed: Amelia W., Letter to the Editor, New York Times, December 11, 2018, https://www.nytimes.com/2018/12/11/opinion/letters/colleges-sexual-assault.html.
“tend to omit race in the discussions of accusers”: Nancy Chi Cantalupo, “And Even More of Us Are Brave: Intersectionality & Sexual Harassment of Women Students of Color,” Harvard Jourmal of Law & Gender 42, no. 1 (2019): 18.
“race-less (and implicitly white) group of accusers”: Deborah L. Brake, “Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard,” Montana Law Review 78 (2017): 109, https://scholarship.law.umt.edu/mlr/vol78/iss1/6/.
erasure of survivors of color: Wagatwe Wanjuki (@wagatwe), Twitter, Dec. 5, 2018, 10:24 a.m., https://twitter.com/wagatwe/status/1070338207923884032. She points out, too, that the most prominent voices criticizing Title IX protections as bad for Black men are white women, like Bazelon and the writer Emily Yoffe. Wagatwe Wanjuki (@wagatwe), Twitter, Dec. 5, 2018, 10:19 a.m., https://twitter.com/wagatwe/status/1070336980603424773.
knew about the predation: Grace Elletson, “Morehouse Is Criticized—Again—for Its Handling of Sexual Misconduct,” Chronicle of Higher Education, July 22, 2019, https://www.chronicle.com/article/Morehouse-Is-Criticized-/246749.
“Black men are insatiable”: Tommy J. Curry, “Expendables for Whom: Terry Crews and the Erasure of Black Male Victims of Sexual Assault and Rape,” Women’s Studies in Communication 42 (2019): 287.
“‘240 lbs. Black Man stomps out Hollywood Honcho’”: Gwilym Mumford, “Actor Terry Crews: I Was Sexually Assaulted by Hollywood Executive,” Guardian, Oct. 11, 2017, https://www.theguardian.com/film/2017/oct/11/actor-terry-crews-sexually-assaulted-by-hollywood-executive.
queer people are also at tremendous risk: American law and ethics have historically failed to distinguish between sexually harmful behavior, like rape, and consensual sex that deviates from mainstream, vanilla expectations, like gay sex or kink. This toxic conflation of “deviant” sex with violent sex contributed to sexually oppressive legal regimes, often motivated—at least ostensibly—by fears about sexual violence. Gayle Rubin, “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality” in Culture, Society and Sexuality: A Reader, eds. Richard Parker and Peter Aggleton (New York: Routledge, 2007), 144. See also Scott De Orio, “Punishing Queer Sexuality in the Age of LGBT Rights” (PhD diss., University of Michigan, 2017), 25, https://deepblue.lib.umich.edu/bitstream/handle/2027.42/138757/sadeorio_1.pdf; Tamara Rice Lave, “Only Yesterday: The Rise and Fall of Twentieth Century Sexual Psychopath Laws,” Louisiana Law Review 69 (2009): 549; Edwin H. Sutherland, “The Sexual Psychopath Laws,” Journal of Criminal Law and Criminology 40 (1949–50): 543; Group for the Advancement of Psychiatry, Committee on Psychiatry and Law, Psychiatry and Sex Psychopath Legislation: The 30s to the 80s (1977).
In light of this history, some now worry that institutional efforts to address sexual harassment may end up targeting queer people disproportionately. See, e.g., Lisa Duggan, “Bad Girls: On Being the Accused,” Bully Bloggers, Dec. 21, 2017, https://bullybloggers.wordpress.com/2017/12/21/bad-girls-on-being-the-accused/. Yet queer people are also at tremendous risk for sexual victimization from which they will need protection from institutions. Nearly half of bisexual women have been raped, according to the Centers for Disease Control and Prevention’s findings, compared to 17 percent of straight women. NISVS: An Overview of 2010 Findings on Victimization by Sexual Orientation, CDC, https://www.cdc.gov/violenceprevention/pdf/cdc_nisvs_victimization_final-a.pdf. Gay and bisexual men are more than five times as likely to be raped in adulthood as heterosexual men. Kimberly F. Balsam et al., “Victimization over the Life Span: A Comparison of Lesbian, Gay, Bisexual, and Heterosexual Siblings,” Journal of Consulting and Clinical Psychology 73 (2005): 477. This violence is often used as a homophobic tool. That is perhaps clearest from the long history of so-called corrective rape, sexual assaults meant to “turn” the victim straight. One scholar writes, “The rapist believes that his act of corrective rape is not only the victim’s fault because if she chose to behave differently, she would not have to suffer, but also that the act is in the victim’s interest.” Sarah Doan-Minh, “Corrective Rape: An Extreme Manifestation of Discrimination and the State’s Complicity in Sexual Violence,” Hastings Women’s Law Journal 30 (2019): 167. She gets, as one survivor of corrective rape recounted, “a real fuck from real men.” Consuelo Rivera-Fuentes and Linda Birke, “Talking with/in Pain: Reflections on Bodies Under Torture,” Women’s Studies International Forum 24 (2001): 653, 663.
“more believable but also more tragic and compelling”: Jessica C. Harris, “Center Women of Color in the Discourse on Sexual Violence on College Campuses” in Intersections of Identity and Sexual Violence on Campus.
“clear and convincing” victims: Wanjuki, “How Betsy DeVos’ Proposed Title IX Changes Would Hurt Black Campus Rape Survivors”; Brake, “Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard,” 137; see also Ruth Lawlor, “How the Trump Administration’s Title IX Proposals Threaten to Undo #MeToo,” Washington Post, Feb. 4, 2019, https://www.washingtonpost.com/outlook/2019/02/04/how-trump-administrations-title-ix-proposals-threaten-undo-metoo/.
CHAPTER 16: OF MEN’S RIGHTS AND FAMOUS MEN
“indentured servants to a malicious matriarchy”: Michael S. Kimmel, Angry White Men: American Masculinity at the End of an Era (New York: Nation Books, 2017).
gender pay gap is nonexistent: This is untrue, according to economists. Niamh McIntyre, “Gender Pay Gap Figures: Debunking the Myths,” Guardian, Apr. 5, 2019, https://www.theguardian.com/world/2019/apr/05/gender-pay-gap-figures-debunking-the-myths.
as much domestic labor as their wives: Untrue, sociologists show. Pew Research Center, “Americans’ Time at Paid Work, Housework, Child Care, 1965 to 2011,” https://www.pewsocialtrends.org/2013/03/14/chapter-5-americans-time-at-paid-work-housework-child-care-1965-to-2011/; Claire Cain Miller, “Young Men Embrace Gender Equality, but They Still Don’t Vacuum,” New York Times, February 11, 2020, https://www.nytimes.com/2020/02/11/upshot/gender-roles-housework.html.
women are equal perpetrators: Also untrue. Michael S. Kimmel, “‘Gender Symmetry’ in Domestic Violence: A Substantive and Methodological Research Review,” Violence Against Women 8 (2002): 1332.
Post-Roe, women gained control: “Male supremacy,” Southern Policy Law Center, https://www.splcenter.org/fighting-hate/extremist-files/ideology/male-supremacy, as of June 11, 2020.
“Two firefighters died”: Warren Farrell, The Myth of Male Power: Why Men Are the Disposable Sex (New York: Berkley Books, 2001).
“There is now a second sexism”: Arthur Goldwag, “Men’s Rights Activists Battle ‘Misandry’ on College Campuses,” Hatewatch, Southern Poverty Law Center, Dec. 18, 2013, https://www.splcenter.org/hatewatch/2013/12/18/men%E2%80%99s-rights-activists-battle-%E2%80%98misandry%E2%80%99-college-campuses.
“male studies,” a right-wing discipline: Charles McGrath, “The Study of Man (or Males),” New York Times, Jan. 7, 2011, https://www.nytimes.com/2011/01/09/education/09men-t.html; Miles Groth, “Prof. Miles Groth Explains Need for Men’s Studies,” Wagner College Newsroom, Feb. 28, 2010, https://wagner.edu/newsroom/node-510.
“history of human beings who are male”: Groth, “Prof. Miles Groth Explains Need for Men’s Studies.” But see Edward Gibbon, The History of the Decline and Fall of the Roman Empire (1776–1789).
“a lazy and incompetent Latina”: Nicole Hong, Mihir Zaveri, and William K. Rashbaum, “Inside the Violent and Misogynistic World of Roy Den Hollander,” New York Times, July 26, 2020, https://www.nytimes.com/2020/07/26/nyregion/roy-den-hollander-judge.html.
“a male-only chastity belt”: Pamela Warrick, “A New Role for Men: Victim: Former Feminist Warren Farrell Says He’s Sick and Tired of Guys Getting Bashed. ‘Male Power,’ He Proclaims, Is Just a Myth,” Los Angeles Times, Aug. 9, 1993, https://www.latimes.com/archives/la-xpm-1993-08-09-vw-22148-story.html.
thousands of innocent men to prison: “False Accusations of Rape,” National Coalition For Men, Jan. 11, 2009, https://ncfm.org/2009/01/news/issues/false-accusations/.
“brainwashed public cheers it all on”: Paul Elam, “Jury Duty at a Rape Trial? Acquit!,” A Voice for Men, July 20, 2010, https://archive.is/TGaGX#selection-483.37–483.52.
only a third were expelled: Tyler Kingkade, “Fewer Than One-Third of Campus Sexual Assault Cases Result in Expulsion,” Huffington Post, Dec. 6, 2017, https://www.huffpost.com/entry/campus-sexual-assault_n_5888742.
“hypocrisy [that] borders on treason”: Paul Elam, “The Death of Due Process for Males in Higher Education,” A Voice for Men, Aug. 26, 2011, https://avoiceformen.com/government-tyranny/the-death-of-due-process-for-males-in-higher-education/.
Farrell later concurred, citing the preponderance standard: Warren Farrell, “Why This Is a Very Scary Time for Young Men,” Minding the Campus, Nov. 6, 2018, https://www.mindingthecampus.org/2018/11/06/why-this-is-a-very-scary-time-for-young-men/.
“the system is rigged” against men: Elam, “Jury Duty at a Rape Trial? Acquit!”
“Voting not guilty on any charge”: Elam, “Jury Duty at a Rape Trial? Acquit!”
who are “false accusers”: Ted Scheinbar, “Silencing Women: Inside the National Coalition for Men,” Pacific Standard, Nov. 12, 2014, https://psmag.com/news/silencing-women-inside-national-coalition-men-rape-sexual-assault-harry-crouch-94284.
shorter identifier “this cunt”: The Beat Man, “Suspected False Rape Accuser Alexandra Brodsky: ‘Campus Sexual Assault Cases Should Not Be Turned Over to the Police,’” Living in Anglo-America, Mar. 15, 2015, https://angloamerica101.wordpress.com/2015/03/15/suspected-false-rape-accuser-alexandra-brodsky-campus-sexual-assault-cases-should-not-be-turned-over-to-the-police/.
first and foremost a dog whistle: Cantalupo, “Dog Whistles and Beachheads,” 303.
“if she hadn’t aggravated him”: Scheinbar, “Silencing Women: Inside the National Coalition For Men.”
decriminalizing rape on private property: Roosh V, “How to Stop Rape,” Feb. 16, 2015, https://www.rooshv.com/how-to-stop-rape.
“Bash a Violent Bitch Month”: Paul Elam, “October Is the Fifth Annual Bash a Violent Bitch Month,” A Voice for Men, Sept. 30, 2015, https://avoiceformen.com/featured/october-is-the-fifth-annual-bash-a-violent-bitch-month/.
“loses a wallet full of cash”: Paul Elam, “Challenging the Etiology of Rape,” A Voice For Men, Nov. 14, 2020, https://archive.fo/eIlgf#selection-623.8–631.178.
a Nation exposé uncovered: Hélène Barthélemy, “How Men’s Rights Groups Helped Rewrite Regulations on Campus Rape,” Nation, Aug. 14, 2020, https://www.thenation.com/article/politics/betsy-devos-title-ix-mens-rights/.
Bill Barr, blurbed a book: Heidi Przybyla, “Barr Praised 2017 Book That Claims Colleges Unfairly Went After Male Students Accused of Sexual Assault,” NBC News, Sept. 19, 2019, https://www.nbcnews.com/politics/justice-department/barr-praised-2017-book-claims-colleges-unfairly-went-after-male-n1056141.
“you’re automatically guilty”: Tovia Smith, “On #MeToo, Americans More Divided by Party Than Gender,” NPR, Oct. 31, 2018, https://www.npr.org/2018/10/31/662178315/on-metoo-americans-more-divided-by-party-than-gender.
women “are doing great”: Philip Bump, “Trump Says It’s ‘a Very Scary Time’ for Young Men—but That Women Are ‘Doing Great,’” Washington Post, Oct. 2, 2018, https://www.washingtonpost.com/politics/2018/10/02/trump-says-its-very-scary-time-young-men-that-women-are-doing-great/.
ran through standard MRA talking points: Farrell, “Why This Is a Very Scary Time for Young Men.”
“No one’s perfect,” he explained: Smith, “On #MeToo, Americans More Divided by Party Than Gender.”
long history of left-wing apologists and enablers: Linda Hirshman, Reckoning: The Epic Battle Against Sexual Abuse and Harassment (Boston: Houghton Mifflin Harcourt, 2019).
sanitizing language of due process: These actors’ invention of a new, less obviously objectionable rationale for their long-standing position—that men should be allowed to hurt women without consequence—is reminiscent of a dynamic Reva Siegel has diagnosed and dubbed “preservation through transformation.” See Reva B. Siegel, “‘The Rule of Love’: Wife Beating as Prerogative and Privacy,” Yale Law Journal 105 (1996): 2117.
“I can’t and won’t point fingers”: Brady MacDonald, “So Who Has Dared to Defend Harvey Weinstein?,” Los Angeles Times, Oct. 16, 2017, https://www.latimes.com/entertainment/movies/la-et-mn-harvey-weinstein-defenders-20171013-story.html.
compared him to Freddy Krueger: Singh, “‘Freddy Krueger in the Room.’ “
they had feared reprisal: Melena Ryzik, Cara Buckley, and Jodi Kantor, “Louis C.K. Is Accused by 5 Women of Sexual Misconduct,” New York Times, Nov. 9, 2017, https://www.nytimes.com/2017/11/09/arts/television/louis-ck-sexual-misconduct.html.
“I will now step back”: Louis C.K., “Louis C.K. Responds to Accusations: ‘These Stories Are True,’” New York Times, Nov. 10, 2017, https://www.nytimes.com/2017/11/10/arts/television/louis-ck-statement.html.
did not address the reason for his absence: Interrobang Staff, “Louis C.K.’s Return to the Cellar Makes Headlines Everywhere and None of Them Are Happy He’s Back,” Interrobang, Aug. 28, 2018, https://theinterrobang.com/louis-c-k-s-return-cellar-makes-headlines-everywhere/.
“one biased inconsistent mess”: Interrobang Staff, “Louis C.K.’s Return to the Cellar Makes Headlines Everywhere and None of Them Are Happy He’s Back.”
CHAPTER 17: THE PEOPLE WHO WANT TO BRING YOU MANDATORY REFERRAL
“a lightning rod around social issues”: Kingkade, “The Men’s Man.”
“My advice is to shut down this office”: Kingkade, “The Men’s Man.”
recognized as a sexual assault: Kathryn Joyce, “The Takedown of Title IX,” New York Times, Dec. 5, 2017, https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html.
The language is worth noting: Melissa Block, “The Racially Charged Meaning Behind the Word ‘Thug,’” All Things Considered, April 30, 2015, https://www.npr.org/2015/04/30/403362626/the-racially-charged-meaning-behind-the-word-thug.
“That’s where we are at Tech”: Jim Galloway, “A Georgia Tech Fraternity Fight Spills into the State Capitol,” Atlanta Journal-Constitution, Jan. 23, 2016, https://www.ajc.com/blog/politics/georgia-tech-fraternity-fight-spills-into-the-state-capitol/Y86xl0zdsnHaJsrjHocU3L/.
more than two-thirds male: Georgia Institute of Technology, Complete College Georgia 2016 Status Report, Oct. 28, 2016, https://oue.gatech.edu/sites/default/files/CCG%20Status%20Report%202016%20FINAL%20Georgia%20Tech.pdf.
“don’t come looking to us for money”: Kingkade, “The Men’s Man.”
until there is a conviction or guilty plea: Alexandra Brodsky, “Against Taking Rape ‘Seriously’: The Case Against Mandatory Referral Laws for Campus Gender Violence,” Harvard Civil Rights-Civil Liberties Law Review 53 (2018): 131.
seem to place them in a worse position: A high priority for students facing both school and criminal proceedings at once is avoiding incriminating themselves for purposes of one in an attempt to defend against charges in the other. There are ways to ameliorate those concerns. Plenty of schools have instituted rules whereby disciplinarians will not hold an accused student’s silence against him if he also faces criminal charges, for example. That’s an idea borrowed from civil trials. Usually juries can make what is called an “adverse inference” from a civil defendant’s silence, meaning that his refusal to speak reflects poorly on his case. But the jury is forbidden to do so when the civil defendant is also at risk of criminal consequences for the same conduct.
survivors would be less likely to report: Know Your IX, “Resisting Mandatory Police Referral Efforts,” http://knowyourix.org/mandatory-referral.
“Any policy that takes away choice”: Jill Filipovic, “Making It Harder to Punish Campus Rapists Won’t Help Stop Campus Rape,” Washington Post, Aug. 10, 2015, https://www.washingtonpost.com/posteverything/wp/2015/08/10/making-it-harder-to-punish-campus-rapists-wont-help-stop-campus-rape/.
“Survivors need to feel like they have choices”: Tyler Kingkade, “28 Groups That Work with Rape Victims Think the Safe Campus Act Is Terrible,” Huffington Post, Sept. 13, 2015, http://www.huffingtonpost.com/entry/rape-victims-safe-campus-act_us_55f300cce4b063ecbfa4150b.
“trigger somewhere else”: “Rep. Ehrhart to Rape Survivors: ‘Trigger Somewhere Else,’” Better Georgia, March 18, 2017, https://www.bettergeorgia.org/2017/03/18/rep-ehrhart-to-rape-survivors-trigger-somewhere-else/ (video embedded).
“hoot and holler and act ridiculous”: Tyler Kingkade, “Georgia Bill Designed to Limit College Rape Investigations Advances,” BuzzFeed News, Mar. 1, 2017, https://www.buzzfeednews.com/article/tylerkingkade/georgia-bill-campus-rape.
“Could you grow up?”: Grace Starling, “Opinion: Senate Listens to Student Survivors of Sexual Assault; House Mocked Them,” Atlanta Journal-Constitution, Mar. 26, 2017, https://www.ajc.com/blog/get-schooled/opinion-senate-listened-student-survivors-sexual-assault-house-mocked-them/A0ePD0oJvTBNEyPcS2KNGL/.
“pretty little liar”: Starling, “Opinion: Senate Listens to Student Survivors of Sexual Assault.”
“untrained college bureaucrats”: Jeremy Bauer-Wolf, “Who Should Investigate Sexual Assaults?,” Inside Higher Ed, April 11, 2017, https://www.insidehighered.com/news/2017/04/11/controversial-georgia-sexual-assault-bill-prompts-debate-reporting/.
pressuring KSU to punish cheerleaders: Lindsay Gibbs, “University Officials Tried to Stop This Cheerleader from Taking a Knee. Now She’s Suing Them,” ThinkProgress, Sept. 8, 2018, https://thinkprogress.org/ex-cheerleader-sues-university-for-conspiring-to-prevent-her-from-taking-a-knee-during-anthem-83f4cc900196/.
From the start, FIRE had led: Ari Cohn, “Did the Office for Civil Rights’ April 4 ‘Dear Colleague’ Letter Violate the Law?,” FIRE, Sept. 12, 2011, https://www.thefire.org/did-the-office-for-civil-rights-april-4-dear-colleague-letter-violate-the-law/.
“courts of law—not campus administrators”: Alex Morey, “Baylor Rape Controversy More Evidence College Unequipped to Decide Sexual Assault Cases,” FIRE, Sept. 14, 2015, https://www.thefire.org/baylor-rape-controversy-more-evidence-colleges-unequipped-to-decide-sexual-assault-cases/.
“highly inflated notion of an ‘epidemic’”: Will Creeley, “Cathy Young Highlights New Threats to Due Process on Campus,” FIRE, Nov. 7, 2011, https://www.thefire.org/cathy-young-highlights-new-threats-to-due-process-on-campus/.
rampant just like COVID-19: Samantha Harris and Michael Thad Allen, “Epidemics on Campus, Real and Imagined,” Reason, May 20, 2020, https://reason.com/2020/05/20/epidemics-on-campus-real-and-imagined/.
spread of an airborne communicable disease: “Is It Safe to Go to College? Health Experts Weigh In,” CNN, 2020, https://www.cnn.com/interactive/2020/health/reopening-coronavirus/college.html; Sofi Sinozich and Lynn Langston, Rape and Sexual Assault Victimization Among College-Aged Females, 1995–2013, https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
schools would sex-segregate their dorms: Emily Yoffe, “The Problem with Campus Sexual Assault Surveys,” Slate, Sept. 24, 2015, https://slate.com/human-interest/2015/09/aau-campus-sexual-assault-survey-why-such-surveys-dont-paint-an-accurate-portrait-of-life-on-campus.html.
Laura Kipnis’s book on campus “sexual paranoia”: Peter Bonilla, “‘Unwanted Advances’ Shows Laura Kipnis’ Critiques of Academic Culture More Relevant Than Ever,” FIRE, Apr. 11, 2017, https://www.thefire.org/unwanted-advances-shows-laura-kipnis-critiques-of-academic-culture-more-relevant-than-ever/; see also McClintock, “Who Is Afraid of Title IX?” (describing FIRE’s affection for Kipnis).
has aged poorly: Kipnis has since settled a lawsuit brought by one of her colleague’s alleged victims. Brian Leiter, “Doe v. Kipnis, HarperCollins Has Settled,” Leiter Reports, Nov. 10, 2018, https://leiterreports.typepad.com/blog/2018/11/doe-v-kipnis-harpercollins-has-settled.html; Maddie Burakoff, “Kipnis Lawsuit Moves Forward as Judge Declines Motion to Dismiss the Case,” Daily Northwestern, Mar. 9, 2018, https://dailynorthwestern.com/2018/03/09/campus/kipnis-lawsuit-moves-forward-as-judge-declines-motion-to-dismiss-the-case; Stassa Edwards, “Laura Kipnis Sued for Defamation over Book That Characterized Campus Sexual Assault as ‘Romance,’” Jezebel, May 17, 2017, https://jezebel.com/laura-kipnis-sued-for-defamation-over-book-that-charact-1795303051.
than their non-Greek peers: John Foubert, “‘Rapebait’ E-Mail Reveals Dark Side of Frat Culture,” CNN, October 9, 2013, https://edition.cnn.com/2013/10/09/opinion/foubert-fraternities-rape/.
essentially House Bill 51: Tyler Kingkade, “How Rolling Stone’s UVA Story Sparked a Controversial Frat Lobbying Effort,” Huffington Post, Dec. 11, 2015, https://www.huffpost.com/entry/fraternity-lobbying-campus-rape_n_566062bae4b08e945fee3f79.
At Thurmond’s party, Lott declared: Thomas B. Edsall and Brian Falser, “Lott Remarks on Thurmond Echoed 1980 Words,” Washington Post, Dec. 11, 2002, https://www.washingtonpost.com/archive/politics/2002/12/11/lott-remarks-on-thurmond-echoed-1980-words/c613ae1c-e17d-41c1-836a-4dd0741ec7c8/.
“should be prosecuted to the fullest extent”: Cleta Mitchell and Trent Lott, “Safe Campus Act Sends Campus Sex Assaults to Police,” Columbia Daily Tribune, last updated Oct. 6, 2015, 1:00 p.m., https://www.columbiatribune.com/article/20151006/Opinion/310069968?template=ampart. In 2021, Mitchell made headlines by reportedly helping Trump pressure elections officials to “find” votes for him in Georgia. Michael S. Schmidt and Maggie Haberman, “Lawyer on Trump Election Call Quits Firm After Uproar,” New York Times, Jan. 5, 2021, https://www.nytimes.com/2021/01/05/us/politics/cleta-mitchell-foley-lardner-trump.html.
“police involvement sends a strong message”: Filipovic, “Making It Harder to Punish Campus Rapists.”
to advocate only for the latter: See, e.g., Motion to Intervene, Pennsylvania v. DeVos, No. 1:20-cv-01468, ECF 27 at 12 (D.D.C. June 25, 2020); Motion to Intervene, Know Your IX v. Devos, No. 1:20-cv-01224, ECF 20–1 at 12 (D.Md. June 24, 2020).
least popular member of Trump’s cabinet: For a summary of polling on Trump’s cabinet members’ popularity, see Amy Sherman, “How Unpopular Is Betsy DeVos?,” PolitiFact, Jan. 6, 2020, https://www.politifact.com/factchecks/2020/jan/06/frederica-wilson/how-unpopular-betsy-devos/.
“Secretary DeVos is a breath of fresh air”: Mary Kate McGowan, “Ehrhart Discusses Campus Rape Bill During Meeting with DeVos,” Marietta Daily Journal, Apr. 24, 2017, https://www.mdjonline.com/news/ehrhart-discusses-campus-rape-bill-during-meeting-with-devos/article_4ce4bace-2956-11e7-975f-57efc5c7d6a7.html.
“shielding institutions from liability”: Dana Bolger, “Betsy DeVos’s New Harassment Rules Protect Schools, Not Students,” New York Times, Nov. 27, 2018, https://www.nytimes.com/2018/11/27/opinion/betsy-devos-title-ix-schools-students.html.
“weakening its due-process standards”: Editors, “The ACLU’s Absurd Title IX Lawsuit,” National Review, May 19, 2020, https://www.nationalreview.com/2020/05/the-aclus-absurd-title-ix-lawsuit/.
focused on DeVos’s substantive redefinition: David Cole, “The Absurd Attacks on the ACLU,” ACLU, May 21, 2020, https://www.aclu.org/news/womens-rights/the-absurd-attacks-on-the-aclu/.
“the ACLU vs. due process”: KC Johnson and Justin Dillon, “The ACLU vs. Due Process: The Nonprofit Takes a Surprising Stand Against More Rights for Those Accused on Campus,” New York Daily News, May 21, 2020, https://www.nydailynews.com/opinion/ny-oped-the-aclu-vs-due-process-20200521-jtqqglschfdgxmmpwduipmvhku-story.html.
CHAPTER 18: INDELIBLE IN THE HIPPOCAMPUS
“Why suffer through the annihilation”: Emma Brown, “California Professor, Writer of Confidential Brett Kavanaugh Letter, Speaks Out About Her Allegation of Sexual Assault,” Washington Post, Sept. 16, 2018, https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html.
it was the Senate’s job to make a decision: Li Zhou and Tara Goldshan, “The Fight over Reopening the FBI Investigation into Brett Kavanaugh, Explained,” Vox, Sept. 30, 2018, https://www.vox.com/policy-and-politics/2018/9/20/17879284/democrats-fbi-investigation-kavanaugh.
Judge’s college girlfriend would say: Ronan Farrow and Jane Mayer, “Senate Democrats Investigate a New Allegation of Sexual Misconduct, from Brett Kavanaugh’s College Years,” New Yorker, Sept. 23, 2018, https://www.newyorker.com/news/news-desk/senate-democrats-investigate-a-new-allegation-of-sexual-misconduct-from-the-supreme-court-nominee-brett-kavanaughs-college-years-deborah-ramirez.
force his penis on another girl: Robin Pogrebin and Kate Kelly, “Brett Kavanaugh Fit In with the Privileged Kids. She Did Not,” New York Times, Sept. 14, 2019, https://www.nytimes.com/2019/09/14/sunday-review/brett-kavanaugh-deborah-ramirez-yale.html/.
shut down offers of phone calls: Ronan Farrow and Jane Mayer, “E-mails Show That Republican Senate Staff Stymied a Kavanaugh Accuser’s Effort to Give Testimony,” New Yorker, Sept. 18, 2018, https://www.newyorker.com/news/news-desk/e-mails-show-republican-senate-staff-stymied-a-kavanaugh-accusers-effort-to-give-testimony.
rather than a pause to investigate: Farrow and Mayer, “Senate Democrats Investigate a New Allegation of Sexual Misconduct, from Brett Kavanaugh’s College Years.”
“‘Here’s what happened to me 30 years ago’”: Farah Stockman, “Jeff Flake Says Brett Kavanaugh Inquiry Should Look at Any ‘Credible Allegation,’” New York Times, Oct. 1, 2018, https://www.nytimes.com/2018/10/01/us/senator-jeff-flake-kavanaugh-boston.html.
White House severely limited the scope: Ken Dilanian, Geoff Bennett, and Kristen Welker, “Limits to FBI’s Kavanaugh Investigation Have Not Changed, Despite Trump’s Comments,” NBC News, Sept. 30, 2018, https://www.nbcnews.com/politics/politics-news/white-house-limits-scope-fbi-s-investigation-allegations-against-brett-n915061.
a far longer list of witnesses had been established: Senate Judiciary Committee, “Supplemental FBI Investigation Executive Summary,” Oct. 4, 2018, https://www.judiciary.senate.gov/press/rep/releases/supplemental-fbi-investigation-executive-summary; Karen Yourish and Troy Griggs, “The F.B.I. Investigation into Kavanaugh Has Ended. Here’s Who Was Questioned, and Who Was Not,” New York Times, Oct. 4, 2018, https://www.nytimes.com/interactive/2018/10/01/us/politics/kavanaugh-fbi-investigation-witnesses.html.
“the presumption of innocence, and fairness”: “Senator Collins announces she will vote to confirm Judge Kavanaugh,” Oct. 5, 2018, https://www.collins.senate.gov/newsroom/senator-collins-announces-she-will-vote-confirm-judge-kavanaugh.
“the street antics that Antifa brought”: Ian Schwartz, “Victor Davis Hanson: Dr. Blasey Ford’s Story Has ‘Collapsed’; She Gave ‘One Too Many Narratives,’” RealClearPolitics, Oct. 4 2018, https://www.realclearpolitics.com/video/2018/10/04/victor_davis_hanson_dr_christine_blasey_fords_story_has_collapsed_she_gave_one_too_many_narratives.html.
Lindsey Graham’s fiery speech: Transcript of Graham’s Remarks on Kavanaugh Nomination, https://www.lgraham.senate.gov/public/index.cfm/2018/9/transcript-of-graham-s-remarks-on-kavanaugh-nomination.
“try to find the truth”: Rich Lowry, “Democrats Have Abandoned the Presumption of Innocence,” New York Post, Sept. 20, 2018, https://nypost.com/2018/09/20/democrats-have-abandoned-the-presumption-of-innocence/.
to the lynching of Emmett Till: Clarence McKee, “Democrats Don’t Care About the Presumption of Innocence,” Newsmax, Sept. 26, 2018, https://www.newsmax.com/clarencevmckee/brett-kavanaugh-presumption-of-innocence-due-process/2018/09/26/id/883594/.
senators were expressly political actors: Adam Freedman, “Due Process for Judge Kavanaugh,” City Journal, Sept. 25, 2018, https://www.city-journal.org/due-process-for-brett-kavanaugh-16192.html.
“not going to ruin Judge Kavanaugh’s life”: Ian Kullgren, “Graham: Ford’s Testimony Won’t Change My Vote,” Politico, Sept. 23, 2018, https://www.politico.com/story/2018/09/23/kavanaugh-ford-lindsey-graham-837391.
Perhaps Feinstein truly wanted to respect: Jodi Kantor and Meghan Twohey, She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement (New York: Penguin Press, 2019), 209; Nicholas Fantos, “Dianne Feinstein Rode One Court Fight to the Senate. Another Has Left Her Under Siege,” New York Times, Sept. 21, 2018, https://www.nytimes.com/2018/09/21/us/politics/dianne-feinstein-brett-kavanaugh-sexual-misconduct.html.
“willing to overthrow all of due process”: Ian Schwartz, “Kimberley Strassel: If We Are Willing to Overthrow Due Process, We’ve Got Some Really Big Problems,” RealClearPolitics, Sept. 30, 2018, https://www.realclearpolitics.com/video/2018/09/30/kimberley_strassel_if_we_are_willing_to_overthrow_due_process_weve_got_some_really_big_problems.html.
Trump issued his MRA-like warning: Bump, “Trump Says It’s ‘a Very Scary Time’ for Young Men—but That Women Are ‘Doing Great.’”
he chose his boys: David Martosko, “EXCLUSIVE: Donald Trump Jr. Tells DailyMailTV in First-Ever Joint Interview with Kimberly Guilfoyle That Sexual Assault Claims Make Him More Scared for His SONS than His Daughters Following He-Said She-Said Kavanaugh Controversy,” Daily Mail, Oct. 1, 2018, https://www.dailymail.co.uk/news/article-6224635/Donald-Trump-Jr-Kimberly-Guilfoyle-DailyMail-TV-Boys-harmed-said-said-cases.html?ito=social-twitter_dailymailus.
“thinking of their husbands and their brothers”: Tal Axelrod, “Trump: ‘Hundred Percent’ Ford Named Wrong Person,” The Hill, Oct., 6, 2018, https://thehill.com/homenews/administration/410253-trump-hundred-percent-ford-named-wrong-person.
held up Kavanaugh and Tom Robinson: Daniel Buck, “The Me Too Era Is Time to Revisit ‘To Kill a Mockingbird’s’ Defense of Due Process,” Federalist, May 7, 2019, https://thefederalist.com/2019/05/07/era-time-revisit-kill-mockingbirds-defense-due-process.
“less likely to believe women”: PerryUndem Research/Communication, The Immediate, Short-Term, and Long-Term Effects of the Kavanaugh Hearings on the Electorate 10 (Apr. 15, 2019), https://view.publitas.com/perryundem-research-communication/kavanaugh-ford-survey-report_f/page/10.
CONCLUSION
At least one court has concluded: Lee v. Univ. of New Mexico, 449 F. Supp. 3d 1071, 1102–03, 1129–32 (D.N.M. 2020).
accusations of sexual assault demand extra care: In the criminal context, a similar criticism can be made of sex offender registries, which treat sexual harms as different from all others—one of many reasons to support registry abolition. See, e.g., Judith Levine and Erica R. Meiners, The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence (New York: Verso, 2020); Reina Gattuso, “Why Should Feminists Be Against the Sex Offender Registry?,” Feministing, Dec. 21, 2018, http://feministing.com/2018/12/21/why-should-feminists-be-against-the-sex-offender-registry/.
critics who demand exceptional procedures for sexual harassment: In addition to the many examples throughout this book, see Jed Rubenfeld, “Mishandling Rape,” New York Times, Nov. 15, 2014, https://www.nytimes.com/2014/11/16/opinion/sunday/mishandling-rape.html.
sexual harassment plan was imposed from on high: “We write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.… We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.” Elizabeth Bartholet et al., “Rethink Harvard’s Sexual Harassment Policy,” Boston Globe, Oct. 14, 2014, https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html.
share as much information as it safely can: Much of my thinking on this point is drawn from my collaboration with Judith Resnik and Claire Simonich, with whom I drafted an article in 2015. Alexandra Brodsky, Judith Resnik, and Claire Simonich, “Can Less Confidentiality Mean More Fairness in Campus Sexual Assault Cases?,” Nation, Feb. 23, 2015, https://www.thenation.com/article/archive/can-less-confidentiality-mean-more-fairness-campus-sexual-assault-investigations/.
excluded from Title VII, as are “independent contractors”: Meghan Racklin, Molly Weston Williamson, and Dina Bakst, “State Leadership on Anti-Discrimination Protections for Independent Contractors,” A Better Balance, Apr. 22, 2020, https://www.abetterbalance.org/state-leadership-on-anti-discrimination-protections-for-independent-contractors/.
isolated and particularly vulnerable: Alexandra Brodsky and Elizabeth Deutsch, “The Promise of Title IX: Sexual Violence and the Law,” Dissent, Fall 2015, https://www.dissentmagazine.org/article/title-ix-activism-sexual-violence-law.
inclusion in existing antidiscrimination protections: Anna North, “Democrats’ Sweeping New Anti-Harassment Bill, Explained,” Vox, Apr. 9, 2019, https://www.vox.com/2019/4/9/18300478/sexual-harassment-me-too-be-heard-democrats.
“sought to transform the terms of debate”: Julie Goldscheid, “The Civil Rights Remedy of the 1994 Violence Against Women Act: Struck Down But Not Ruled Out,” Family Law Quarterly 39 (2005): 157, 159, https://ssrn.com/abstract=925049.
did not have a sufficient impact on the national economy: United States v. Morrison, 529 U.S. 598 (2000).