I am writing about the article “Court of Appeals Arguments in SUNY Sexual Misconduct Case Focus on Evidence of Consent,” which appeared in the New York Law Journal on Sept. 14. The article makes it abundantly clear that a statute with a lofty purpose can grow into an unwieldy monstrosity.
In the first instance, the rule-making authorities providing regulations to the administrative agency employed on campus to conduct “hearings” have made certain assumptions that completely ignore human sexuality in all its complexity. If, at any time during a sexual encounter, one of the parties says “no” to the next step the encounter is terminated, and if not, the purportedly offending party has transgressed with devastating consequences. The “no” need not be verbal—any purported signal will do. The case discussed in your article deals with what is commonly called a “hook-up.” The young man had been drinking; the purported victim invited him to her dorm room “where they had sex.” She had removed her top; had stated upon his asking her if she had a condom she did not “but it was fine.” He did not ask her after she removed her top whether he could remove her underpants. One assumes this was a necessary next step to the employment of the not needed condom. Presumably, the young woman knew what the condom was for and thus, presumably, the young man was convinced there was implied consent.
Assistant Solicitor General Brian Ginsberg suggested that the e-mail sent by the purported perpetrator the day after the incident to the purported victim that he was “worried” and “didn’t know if she had reported [him]” suggests “consciousness of guilt.” In fact, if we rely upon circumstantial evidence in this case, it would seem that the “implied consent” and the “consciousness of guilt” pretty much cancel each other out.
Procedurally, the administrative agency’s conduct of this type of hearing is a frightening example of justice gone amuck. The “victim” need not appear at the hearing; a witness for the “victim” may relate her story as told to him/her; the “perpetrator” is charged with having to know that he can cross-examine the “witness,” whose testimony consists entirely of hearsay. Does he know how to cross-examine a witness? Has he been furnished with a list of his rights? The victim in this story had arrived at a moment in which she questioned her own judgment and “froze up.” Although she has been told she has the same rights and powers as a man to engage in meaningless sex, she is full of regret about her own behavior and must seek a wrongdoer to re-experience the event in which she was clearly compelled against her will—she is, in fact, blameless.
In the same New York Law Journal reporting the SUNY case appeared an article discussing U.S. Secretary of Education Betsy DeVos’s move to draft changes to the Obama era policies with respect to the implementation of the statute. Trial lawyer Andrew T. Miltenberg of Nesenoff & Miltenberg describes his feelings after leaving a Title IX hearing on Sept. 6, 2018: “I could not believe, even though I should now be used to it, the abuses of process and the complete ‘anything goes’ atmosphere. “
What does all of this cost, not only in money but emotional trauma? The perpetrator’s parents had to pay for an attorney for their son; the perpetrator is saddled with an unsavory record which may ruin his future career; the victim saw numerous people pouring over the tawdry details of her private affairs. My heart goes out to both these young people who had made bad choices and are now stuck with the aftermath.
The late, great, jurisprudential scholar, Myres McDougal, would have told us, in no uncertain terms, that the statute and its administrative rules do not reflect the compact of the people with shared values. Franz Kafka is no longer with us, neither are the McCarthy hearings. What we do have is a “kangaroo court.” Title IX’s implementation needs a thorough revision.
This letter does not reflect the views of my firm. I am speaking as an individual.
Lainie R. Fastman is a partner at Hall & Hall.