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May 16 2016

Forget the Erosion of Due Process in Campus Rape Cases. Now, You May Not Even Need an Accuser

Charlotte Hays

A sexual assault case at Colorado State University at Pueblo has a novel twist on the  he-said/she said narrative: both he and she said that nothing untoward happened between them and the sex was entirely consensual. He said and she said that there was no basis for a rape charge.

And yet . . . CSU Pueblo has (in the words of George Will) "punished the supposed rapist of a woman who says she was not raped." The he is Grant Neal, a CSU Pueblo pre-med major and athlete. The she is identified in a suit Neal has filed as Jane Doe, also an athlete. According to a lawsuit Neal has filed:

"As the intimacy progressed, knowing that they both wanted to engage in sexual intercourse, Jane Doe advised Plaintiff that she was not on birth control. Accordingly, Plaintiff asked if he should put on a condom. Jane Doe clearly and unequivocally responded ‘yes.’ .?.?. They proceeded to engage in consensual sexual intercourse, during which Jane Doe .?.?. demonstrated her enjoyment both verbally and non-verbally."

The encounter left Jane with a hickey on her neck. This was enough for her classmates to report Neal to the school authorities. Jane Doe said that she was "fine" and had not been raped. Using hearsay and violating due process, CSU Pueblo suspended Neal for as long as Jane remains a student there. His chances of getting into another school under the circumstances are not promising.

George Will notes:

The Chronicle of Higher Education says the case raises this "intriguing" question: "What responsibility does a college have to move ahead with a third-party complaint if the supposed victim says she consented?" This question, which in a calmer time would have a self-evident answer, will be explored in Neal’s lawsuit.

It should reveal what the school thought of Jane Doe’s statement exculpating Neal, who says a school official "brushed off" the recording and said that Jane Doe said what she said "just because she was scared of you." Neal’s lawyer says he suspects that Jane Doe might now be intimating something "inappropriate" and is perhaps scared of losing her place in the Athletic Training Program.

CSU Pueblo should be scared of joining those schools that have lost lawsuits filed by students denied due process. Such suits are remedial education for educators ignorant of constitutional guarantees.

Will attributes the "descent into perpetual hysteria" that has led to these miscarriages of justice partly to a phony statistic: the one that says that one in five women on campus is a victim of sexual assault and that this requires federal intervention. Beloved by the Obama administration, this "statistic" is based on a single online survey. The survey allegedly was interpreted in a way that would give the largest possible percentage of rapes on campus.

The Obama administration then seized upon Title IX, which simply (and rightly though perhaps redundantly) stipulates that no institutions will receive money if there is sexual discrimination, as a vehicle for micromanagement on college campuses.

Through a "Dear Colleagues" letter from the Office of Civil Rights (in the Education Department), the administration set up a different standard for judging assault accusations. No longer would reasonable doubt, a cornerstone of jurisprudence, be used but rather "preponderance of evidence" became the standard. So much for the right of due process for the accused.

There have been many miscarriages of justice using this debased standard, but the CSU Pueblo case seems to establish an entirely new standard: you no longer even need an accuser!

Fanz Kafka, call your office.



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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