Unsubstantiated accusations against my son by a former girlfriend landed him before a nightmarish college tribunal.
By JUDITH E. GROSSMAN, WSJ Opinion, April 17, 2013
I am a feminist. I have marched at the barricades, subscribed to Ms.
magazine, and knocked on many a door in support of progressive candidates
committed to women's rights. Until a month ago, I would have expressed
unqualified support for Title IX and for the Violence Against Women Act.
But that was before my son, a senior at a small liberal-arts college in New
England, was charged—by an ex-girlfriend—with alleged acts of "nonconsensual
sex" that supposedly occurred during the course of their relationship a few
years earlier.
What followed was a nightmare—a fall through Alice's looking-glass into a
world that I could not possibly have believed existed, least of all behind the
ivy-covered walls thought to protect an ostensible dedication to enlightenment
and intellectual betterment.
It began with a text of desperation. "CALL ME. URGENT. NOW."
That was how my son informed me that not only had charges been brought
against him but that he was ordered to appear to answer these allegations in a
matter of days. There was no preliminary inquiry on the part of anyone at the
school into these accusations about behavior alleged to have taken place a few
years earlier, no consideration of the possibility that jealousy or revenge
might be motivating a spurned young ex-lover to lash out. Worst of all, my son
would not be afforded a presumption of innocence.
In fact, Title IX, that so-called guarantor of equality between the sexes on
college campuses, and as applied by a recent directive from the Department of
Education's Office for Civil Rights, has obliterated the presumption of
innocence that is so foundational to our traditions of justice. On today's
college campuses, neither "beyond a reasonable doubt," nor even the lesser "by
clear and convincing evidence" standard of proof is required to establish guilt
of sexual misconduct.
These safeguards of due process have, by order of the federal government,
been replaced by what is known as "a preponderance of the evidence." What this
means, in plain English, is that all my son's accuser needed to establish before
a campus tribunal is that the allegations were "more likely than not" to have
occurred by a margin of proof that can be as slim as 50.1% to 49.9%.
How does this campus tribunal proceed to evaluate the accusations? Upon what
evidence is it able to make a judgment?
The frightening answer is that like the proverbial 800-pound gorilla, the
tribunal does pretty much whatever it wants, showing scant regard for
fundamental fairness, due process of law, and the well-established rules and
procedures that have evolved under the Constitution for citizens' protection.
Who knew that American college students are required to surrender the Bill of
Rights at the campus gates?
My son was given written notice of the charges against him, in the form of a
letter from the campus Title IX officer. But instead of affording him the right
to be fully informed, the separately listed allegations were a barrage of vague
statements, rendering any defense virtually impossible. The letter lacked even
the most basic information about the acts alleged to have happened years before.
Nor were the allegations supported by any evidence other than the word of the
ex-girlfriend.
The hearing itself was a two-hour ordeal of unabated grilling by the school's
committee, during which, my son later reported, he was expressly denied his
request to be represented by counsel or even to have an attorney outside the
door of the room. The questioning, he said, ran far afield even from the vaguely
stated allegations contained in the so-called notice. Questions from the distant
past, even about unrelated matters, were flung at him with no opportunity for
him to give thoughtful answers.
The many pages of written documentation that my son had put together—which
were directly on point about his relationship with his accuser during the time
period of his alleged wrongful conduct—were dismissed as somehow not relevant.
What was relevant, however, according to the committee, was the unsworn
testimony of "witnesses" deemed to have observable knowledge about the long-ago
relationship between my son and his accuser.
That the recollections of these young people (made under intense peer
pressure and with none of the safeguards consistent with fundamental fairness)
were relevant—while records of the accuser's email and social media postings
were not—made a mockery of the very term. While my son was instructed by the
committee not to "discuss this matter" with any potential witnesses, these
witnesses against him were not identified to him, nor was he allowed to confront
or question either them or his accuser.
Thankfully, I happen to be an attorney and had the resources to provide the
necessary professional assistance to my son. The charges against him were
ultimately dismissed but not before he and our family had to suffer through this
ordeal. I am of course relieved and most grateful for this outcome. Yet I am
also keenly aware not only of how easily this all could have gone the other
way—with life-altering consequences—but how all too often it does.
Across the country and with increasing frequency, innocent victims of
impossible-to-substantiate charges are afforded scant rights to fundamental
fairness and find themselves entrapped in a widening web of this latest surge in
political correctness. Few have a lawyer for a mother, and many may not know
about the Foundation for Individual Rights in Education, which assisted me in my
research.
There are very real and horrifying instances of sexual misconduct and abuse
on college campuses and elsewhere. That these offenses should be investigated
and prosecuted where appropriate is not open to question. What does remain a
question is how we can make the process fair for everyone.
I fear that in the current climate the goal of "women's rights," with the
compliance of politically motivated government policy and the tacit complicity
of college administrators, runs the risk of grounding our most cherished
institutions in a veritable snake pit of injustice—not unlike the very
injustices the movement itself has for so long sought to correct. Unbridled
feminist orthodoxy is no more the answer than are attitudes and policies that
victimize the victim.
Ms. Grossman, an attorney and mother, lives in New York City.
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