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    Due Process Tag

    John Doe v. Oberlin College is a case we have covered for almost two years. While it doesn't get the media coverage of Gibson's Bakery v. Oberlin College, it's every bit as important, addressing alleged systemic abuses at Oberlin College in its treatment of male students. By way of background, we first covered the case on December 26, 2017, Lawsuit: Oberlin College sexual assault hearing process rigged, 100% conviction rate:

    In 2017, Oberlin College was sued by an expelled male student who had been found responsible for sexual assault in a campus disciplinary hearing. The student, identified only as John Doe, alleged a seriously flawed hearing process as well as discrimination on the basis of sex because the process allegedly was biased against men. We first covered the case, and the motion to dismiss filed by Oberlin, in Lawsuit: Oberlin College sexual assault hearing process rigged, 100% conviction rate:

    The more cases of campus sexual assault adjudications we cover, the more we see patterns. There frequently is an ongoing consensual sexual relationship in which only some of the interactions were claimed to be non-consensual; a delay in reporting the alleged assault; a process in which the accused is left uncertain as to the charges against him; an inability to be represented by counsel or anyone who could give substantive assistance; a university investigation under pressure to "believe" the accuser; the inability to call a key witnesses, the issue of whether there was sufficient affirmative consent (there being no claim that the female said "No"), and of course, the use of alcohol in varying degrees.

    For several years we have been covering the near elimination of due process rights for men accused of sexual misconduct on campuses. Universities, compelled by a directive from the Obama Department of Education under threat of loss of federal funding, have combined with toxic radical feminist "rape culture" warriors to create tribunals in which men are presumed guilty in what amount to Kangaroo courts for men on campus. These campus tribunals have turned our traditional notions of justice around. While we used to hold to a standard that better 10 gulity men go free than 1 innocent man be convicted, now it's Better 10 Innocent Men Suffer, Than 1 Guilty Man Escape.

    Last week, Rep. Trey Gowdy (R-SC) schooled an official from the Department of Homeland Security on our Constitutionally protected right to due process. "Let me ask you another question about the terrorism list, what process if afforded a U.S. citizen before they go on that list?" Gowdy asked. After a brief pause, Ms. Burriesci of the Department of Homeland Security, obviously confused said, "I'm sorry, there's not a process afforded the citizen prior to getting on the list. There is a process should someone feel they are unduly placed on the list."

    We have been covering the absurdity of the "Yes Means Yes" movement, and the violation of fundamental due process rights under the banner of "rape culture," for quite some time: In our coverage, we frequently have posted this parody video from 2007. Now life is imitating parody, as reported in The Washington Examiner (via Instapundit), Advocacy group distributes sexual 'consent contracts' to college students:

    The number of lawsuits by men wrongly accused of sexual assault on campus is increasing almost by the day. Most remain silent, preferring to go the "John Doe" route to avoid further reputational damage. Slowly, however, some men are going public, often where there names were already published anyway in high profile cases. One example is the suit against Columbia University by Jean-Paul Nungesser after Emma Sulkowicz drew attention to the allegations by carrying a mattress around campus. Here is one story playing out at San Diego State University, in which the charges were plastered all over campus and the news, only to be dropped once police investigated. Where does someone wrongly accused go to get his reputation back? It started with the arrest of Francisco Paiva Sousa, SDSU sex assault suspect out on bail:
    A day after being arrested on suspicion of a sexual assault near campus, an SDSU student is out on bail. CBS News 8 cameras were there when 20-year-old Francisco Paiva Sousa was released from jail Wednesday. He was taken into custody Tuesday in connection with the alleged assault Sunday. Sousa said nothing as our cameras caught up with him after he made bail. The SDSU sophomore is accused of forcing a female student to perform oral sex while at a party off campus, according to campus police. Detectives say it happened at a duplex on College Avenue sometime Saturday night or Sunday morning....

    Yet another Complaint has been filed by a male student disciplined after a campus adjudication of alleged sexual assault, this time against the California Regents for the conduct involving UC-Santa Barbara. As in all the other complaints, there are allegations that the sexual relations were consensual, a substantial delay in reporting, and alleged bureacratic bungling and mischief denying the male student. But this one has a unique twist -- the male was on leave of absence and the conduct was after the semester was over and the female accuser was transferring to another school.  This raises a unique question of the reach of university jurisdiction to enforce campus sexual conduct rules. What is not unique about this case is the salacious nature of the alleged facts. According to the Complaint, the accused male and accusing female were part of a group sex encounter at his parent's Lake Tahoe house, after school was over in June, with the male having graduated and the female transfering:
    32. On June 14, 2014, John Doe and Jane Doe, along with a group of friends, traveled to Jane Doe’s parents’ home in Lake Tahoe for the weekend to celebrate the end of the school-year. Although some of the individuals on the trip happened to be members of the UCSB Mock Trial Team, the trip was in no way sponsored by or affiliated with UCSB. * * * 37. While John Doe was out of the house, L.B. approached Jane Doe in the master bedroom and asked whether she would be interested in having group sex with her and B.R. Subsequently, Jane Doe, L.B. and D.J. advised B.R. that they would be interested in the group sex only if John Doe was also involved. 38. When John Doe returned to the house, Witness B.R. advised him of B.R.’s earlier conversation with Jane Doe, D.J. and L.B. and inquired whether John Doe would be interested in taking part in the group sex.

    In Washington State, the burden of proof of consent in a sexual assault case has traditionally fallen not on the alleged rape victim, but on the accused. A recent decision by the Washington Supreme Court, however, has changed the standard, and given hope to due process advocates:
    The court in its 6-3 ruling reversed earlier decisions that forced an alleged rapist to establish a preponderance of evidence that a victim consented to sex. The court said such a burden violated constitutionally protected rights and also wrongly interpreted precedent set by the U.S. Supreme Court. "When a defense necessarily negates an element of the crime charged, the State may not shift the burden of proving that defense onto the defendant," the ruling said. "Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due process principles," Justice Debra Stephens wrote, adding that doing so raises "a very real possibility of wrongful convictions."
    The media has predictably framed this ruling as one that "could make it more difficult for rape victims to get justice":
    "There's another person whose rights need to be taken into consideration, and that's the victim." Six of the nine justices agreed to reduce the rape defendant's burden, saying that 25 years of earlier rulings were incorrect and harmful to the constitutional presumption of innocence. "The prosecutors are going to have to spend much more time describing to the jury and presenting evidence to the jury regarding how the victim responded to those threats, what their body language is, what kind of noises they made, how quickly did they capitulate to the demand that they say that they wanted it." When we talked with YWCA sex assault victim advocate Emily Cordo, she was fearful of the ruling's impact, because now prosecutors will have to prove forcible rape victims did not consent. "Victims have to worry about whether they're going to be treated with respect, and whether they're going to be believed." The three justices in the minority agreed, writing that the majority ruling retreats "to the archaic focus on a rape victim's actions."

    WAJ: This is a guest post by Robert L. Shibley, Senior Vice President of the Foundation for Individual Rights in Education (FIRE). As "Yes Means Yes" mania sweeps across college campuses, and the lives of innocent men falsely accused are ruined in a witch hunt atmosphere, the FIRE once again is at the forefront of standing up for the individual. ----------------------------------- On Monday, Vox co-founder Ezra Klein penned an op-ed about how he firmly supported the affirmative consent bill recently passed in California despite his candid acknowledgment that the bill was in fact “terrible.” The general tenor of his column, which I discussed in The Daily Caller yesterday, was that you can’t make an omelet without breaking a few eggs—the eggs being people unjustly found guilty of rape. Critics on the left and the right were equally appalled, as well they—or anyone concerned with civil liberties—should have been. Under this barrage of well-deserved criticism, Klein returned with a longer piece yesterday, attempting to justify his candid-yet-horrifying position on California’s law. He fails. In fact, despite his column’s title, “What people get wrong about the Yes Means Yes law,” he fails to even get basic facts about the law right. Klein does the same thing that so many other supporters of the law have done, which is to present the law and the campus environment in inaccurate ways that just happen to make due process abuses seem less grievous. So allow me to present a mini-Fisking of the article, and you can be the judge of who’s right. I won’t address every line of Klein’s long, doomed attempt at self-justification, but I will hit the highlights (or perhaps lowlights). There are plenty of them. Klein opens thusly:

    On Monday, we told you about a new California law that essentially outlaws sloppy, reckless sex between college students. Now, a new app has launched that seeks to eliminate all debate over whether or not that hot guy or girl at the bar is "good to go"---home with you. Via the New York Daily News:
    “Good2Go should be treated in the same manner as putting on a condom,” its website explains. “It may stop the action for a second, but everyone understands it is in the interest of safety, so it is worth the momentary pause.” The free app works as follows: After sparks fly with a potential hookup, one of the people involved launches the free Good2Go app on his or her phone. When it is opened, the app will display the question, “Are we Good2Go?” The other party then selects “No thanks,” “Yes, but...we need to talk” or “I’m Good2Go.” If the first option is chosen, a screen pops up that says “Remember! No means No! Only Yes means Yes, BUT can be changed to NO at any time!” The second choice pauses the app so the pair can have their discussion.

    We've written previously about California's proposed "affirmative consent" bill, which codifies -- for lack of a more delicate terminology -- what constitutes acceptable foreplay between consenting adults on college campuses. On Sunday, that bill became law. Via Fox News:
    [Bill author Sen. Kevin] De Leon has said the legislation will begin a paradigm shift in how college campuses in California prevent and investigate sexual assaults. Rather than using the refrain "no means no," the definition of consent under the bill requires "an affirmative, conscious and voluntary agreement to engage in sexual activity." "With one in five women on college campuses experiencing sexual assault, it is high time the conversation regarding sexual assault be shifted to one of prevention, justice, and healing," de Leon said in lobbying Brown for his signature. The legislation says silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent.
    The bill holds hostage funding for colleges and universities unless "the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking..." That policy is strictly defined within the bill, and mandates new, uniform procedures for the reporting, counseling, and investigation of alleged sexual misconduct on campus.

    This is a thing that's actually happening at Columbia University in New York City. Rather than taking her allegations of rape to local law enforcement, Emma Sulkowicz has decided to carry around her mattress as long as her alleged rapist remains on campus. Sulkowicz didn't report the rape immediately after it happened, but was convinced to report the alleged incident months later. The case was ultimately dismissed by university authorities. According to the Columbia Spectator:

    As long as her alleged rapist goes to Columbia, Emma Sulkowicz, CC ’15, plans on carrying a navy blue, extra-long twin-sized mattress wherever she goes.

    Entitled “Carry That Weight,” the mattress is both the visual art major’s senior thesis and a step in her journey to come to terms with her experience. Over the past year, Sulkowicz has become a prominent critic of the University’s sexual assault adjudication policies, retelling her story to various administrators and media organizations to raise awareness.

    “The past year of my life has been really marked by telling people what happened in that most intimate and private space,” Sulkowicz said, referring to the dorm bed where she was allegedly raped on the second night of her sophomore year.

    “I was raped in my own dorm bed and since then, that space has become fraught for me. I feel like I’ve carried the weight of what happened there since then,” she added.

    Months after her alleged rape, Emma reported the incident to the school. Her case, one of three individual complaints filed against the same student, was closed, and her rapist found “not responsible.” She appealed, but it was denied and the decision was upheld.

    Sulkowicz has turned what she says was a horrible tragedy into performance art.

    Performance art that will suffice as her senior thesis. A fact I'll just leave there without commenting on further:

    Sulkowicz plead her case to the university. But why didn't she go to the police?