Pro/Con: Group protects ‘wrongfully accused’

by Anna Waletzko and Anthony Berteaux

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Pro

By Anthony Berteaux

When Title IX was signed into law by President Nixon on June 23, 1972, for all intents and purposes, Title IX had a noble goal: to prohibit discrimination on the “basis of sex in any federally funded education program or activity.” In the 43 years since its passing, Title IX has broken down historically erected barriers for women in sports, maths and sciences and has secured fair treatment for pregnant students. Perhaps the most timely and relevant mission of Title IX for college students is it’s implementation in fighting gender-based sexual harassment and assault on college campuses.

Noble in intention and noble in action. However after the U.S. State Department of Education’s Office for Civil Rights penned a “Dear Colleague” letter in 2011 — which vastly revised many college campuses’ approach to handling and adjudicating sexual assault cases in accordance with Title IX — the authority in which Title IX is used in campus judicial review has become less than noble, and even shameful. A recent flyer on campus attempts to shed light on this issue by bolding stating, “You Could Be Expelled Even If She Consented.”

While some points on the flyer can be dismissed, the criticism of how legally ambiguous “affirmative consent” is measured during internal campus judicial review, and how low standards of evidence are used in accordance to the guidelines set by OCR’s letter are valid. It’s clear the manner in which Title IX is used to guide campus judicial review regarding sexual assault on college campuses today shows a belligerent disregard for individual civil rights and due process for the accused. A fair and just system rules that any individual, no matter the crime, deserves the same civil rights and due process as the victim.

OCR’s letter in 2011 is upfront about how divorced campus judicial review is in handling sexual assault when it states that a college campus Title IX investigation “is different from any law enforcement investigation.” At least they’re honest, because under these guidelines current college judicial reviews deny the accused of: unbiased juries, impartial judges, representation by counsel, and restrictions on unreliable evidence such as heresy. While most college campus Title IX policies do allow for lawyers into sexual-misconduct hearings, they do not permit them to speak. In most cases, students are left defending themselves in a hearing.

In compliance with Title IX, sexual assault cases require a lower standard of evidence than the “beyond reasonable doubt” standard used in criminal courts. A sexual assault case relies on a “preponderance” of evidence, the lowest burden of proof in the judicial system (requiring a 50.1 percent chance) often used in civil court. While the penalty for civil court cases are usually monetary fines, college sexual assault cases have higher stakes: suspension or expulsion.

Even confirming a “preponderance of evidence” in consent as detailed in a recent affirmative consent bill has dangerous implications for the rights of the accused. When Assemblywoman Bonnie Lowenthal, a principal co-author of the  “affirmative consent” bill SB 967, was asked about how one could prove they received “affirmative consent” in a campus sexual assault case she replied, “Your guess is as good as mine.”

While Francisco Sousa has largely been the source for ridicule on campus, after he was accused of sexual assault, his claims of having his rights to due process and a fair trial during his investigation are something to be taken seriously. Even before campus investigation concluded, Sousa was found guilty of violating Title IX, suspended and denied access to the information that lay at the basis of his suspension. In a stark contrast to the cornerstone of our justice system “innocent until proven guilty,” Sousa was guilty until proven innocent.

Seen within this context, the flyers on campus are addressing a real tangible problem with how our college campuses are grappling with sexual assault. However, if college campuses, and even SDSU, continue to deny the accused fair trials to defend themselves, then the chances of ruining the life of an innocent student becomes very real, as well.

Con

By Anna Waletzko

A recent flyer on campus superficially addresses the dubious legal issues that come with sex and alcohol.

The flyer read, “You could be expelled even if she consented.” It then shows a screen-capture from John Doe vs. L.A. Superior Court. The texts are between John and Jane Doe wherein Jane asked John if he had a condom, John said yes, and Jane said, “Good give me two minutes.” The flyer then included the statement that John was expelled.

In the case of John and Jane Doe, the encounter had begun consensually, but both parties were extremely inebriated.

The group who posted the flyer, Families Advocating for Campus Equality, warns young men about the dangers of being accused of sexual assault.

However, the flyer lacks context that further complicates the reality of sexual assault on college campuses.

The flyer, distributed by FACE, read, “Your school will not help prove your innocence.” However, for years, we faced the opposite problem. Schools would do little if nothing to prove guilt in the case of sexual assault.

In April 2014, then junior at Columbia University Emma Sulkowicz started the Carry that Weight campaign, where she carried her mattress with her all over campus after the university failed to address and deal with the man who raped her and two other women at the start of her sophomore year.

“It’s gone a little too far,” said FACE parent and attorney Cynthia Garrett. She said that as a society, we have talked about sexual assault so much so that now young women are being convinced they were assaulted, when in reality they just regretted the decisions they made.

Garrett said that young men are now becoming victims of the system and universities are being forced to find guilt in these cases, or else lose their funding.

A Voice For Male Students reported that 80 male students have or are currently suing their schools. Many claim that the universities policies and regulations are stacked against men, strongly favoring women.

One among the 80 is Francisco Sousa, former SDSU student, who is now suing the school for coming to conclusions about his guilt in an alleged sexual assault before properly investigating.

Sousa’s attorney Dominic Lombardo spoke to Fox 5 San Diego news and said, “They gave him the punishment well before the trial.”

This is what FACE aims to prevent, but the case mentioned on their flyer was used out of context to insinuate fear and makes broad assumptions about the victims of sexual assault.

It reads, “If she has touched alcohol, do not touch her.”

Language like this insinuates that women who have gone near alcohol are ticking time bombs who will let you have sex with them but will later erupt in sexual assault claims. It’s offensive and presents the idea that women cannot make conscious decisions about sex if they have been drinking.

What about men? Does having a penis make you impervious to the effects of alcohol?

The flyer is an attempt to address a rarely discussed issue of sexual assault, but goes about it the wrong way. The case presented on the flyer does not accurately depict a “false accusation” but rather shows the miscommunications and grey areas present when alcohol and sex are mixed.

Both genders need to be educated on the importance of realizing and taking note of their partner’s current state of sobriety, because in cases like the John Doe vs. Occidental, it seems that is where the problem lies – not in false accusations.

Schools need to change the way they address sexual assault, but misogynistic fliers used out of context to instill fear in readers will not garner that change.

 

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