Tuesday, April 21, 2015

A student who sometimes awoke his long-term romantic partner with a kiss was found guilty of sexual assault

If you have the slightest doubt that colleges don't have the foggiest idea how to handle claims of sexual assault, look no further than Brandeis University.

A male student was accused of sexually assaulting a fellow student, with whom he had been in a nearly two-year romantic relationship. The couple eventually broke up, but remained friendly. Then, suddenly, in January 2014, the accuser alleged that the accused had initiated non-consensual interactions dating to 2011. Based on a vague allegation of sexual assault, the accused student was placed on “emergency suspension.”

Bradeis skipped its regular hearing proces--who needs fair processes?--and called in a big gun to investigate: Elizabeth Sanghavi, one of the authors of the Department of Education's dreadful “Dear Colleague” letter. Sanghavi interviewed both parties, but elected not to put anyone under oath or record the interviews. According to Prof. KC Johnson, "The accused student had no right to counsel, and no right to see his accuser’s testimony, much less to cross-examine the accuser."

Sanghavi concluded that the first time the two students had slept together, the accused committed sexual assault. The fact that this "assault" led to a 21-month relationship did not raise red flags for Sanghavi that perhaps the interaction really was consensual.

Sanghavi also found the accused guilty of nonconsensual sexual conduct because he sometimes awoke the accuser with a kiss, the same as countless couples in intimate relationships do every day around the globe. No matter, Sanghavi held. The accused waking the accuser with a kiss counted as “sexual assault because sleep is a ‘state of incapacitation’” and, hence, the accused student took “sexual advantage of incapacitation,” according to a lawsuit suit filed by the accuser.

Brandeis punished the "rapist" with a Disciplinary Warning, and no suspension. But the accused student claims in a lawsuit that Brandeis allowed the investigator’s findings to be made public, and as a result, he was let go from an internship with a “high-ranking elected official” and had job offers withdrawn.

Now the Department of Education's Office for Civil Rights (OCR) is investigating Brandeis for potentially violating the accused student's Title IX rights. That's a positive thing, but why would OCR go to bat for an accused male? It may have something to do with the fact that the accused student is gay, said the College Fix. I failed to mention that both the accuser and the accused here are male.

No matter. The investigation is a good thing, and perhaps it will lead to a positive precedent for all students. Because at some point, someone has to put a stop to this madness. Schools can't tackle accusations of sexual assault by checking their common sense at the front door, and that's what the sexual grievance industry insists they do (and that's one reason schools shouldn't be in the business of adjudicating sexual assault claims.)

Yes, it is beyond dispute that kissing a sleeping person can constitute offensive contact. But shouldn't it be viewed in context, and in light of all the surrounding circumstances?  Are we supposed to simply ignore the fact that this particular couple was involved in a long-term sexual relationship, where partners negotiate boundaries in myriad, often subtle ways, and where they typically develop a course of conduct that is qualitatively different, and far more complex, than the barnyard rutting of couples who've hooked up for a one-night stand? Newsflash: long-term couples generally are perfectly fine--I dare say they like--being awakened by a kiss. If this were sexual assault, it is fair to assert that a significant percentage of people in long-term relationships, probably most, are every bit as guilty. To suggest that such interactions are in the same galaxy as sexual assault is not just silly, it borders on pathology.

And that goes to the crux of the matter. The people who now dominate both public policy and the public discourse on sexual assault seem to lack the common sense, the personal experience--dare I say "maturity"?--to have such responsibility. It is time for them to take their rightful place at the kids' table and to yield the floor to adults who aren't driven by an angry, hysterical, political agenda.