On May 29, a former student at Amherst College filed a lawsuit against the school in U.S. District Court in Boston. The student, anonymized as John Doe, claims that school administrators expelled him after he was falsely accused of rape. He is seeking $75,000 in damages and reinstatement as a student at Amherst.
According to the lawsuit, “In the just six weeks from the date the complaint was filed against him, the plaintiff found himself held guilty of assault, expelled from the college, ejected from the campus, and branded a sex offender, with his entire future in ruins. The actions taken by the defendants resulted from a deeply flawed investigatory and disciplinary process during which the plaintiff was denied the most rudimentary elements of fairness promised to him by Amherst in its Student Handbook.”
Amherst has issued a statement in response, saying, “The college has put in place a process that is consistent with the requirements under Title IX and is fair to all parties. In this instance, the hearing board concluded that the individual violated the college’s policies on sexual misconduct and respect for other persons. The college is confident that the hearing board followed the College’s process in making its decision.” Pete Mackey, a college spokesman, also defended Amherst’s actions, telling the Boston Globe that “That process was followed in this case. We are confident that the process the college followed was appropriate and that the court will conclude that the college’s process was fair.”
Doe was accused in October 2013 of committing rape in February 2012. The incident occurred in the early morning hours of February 5, when Doe drank enough alcohol to black out. The accuser, identified in the lawsuit as Sandra Jones but identified in her AC Voice column as Anna Seward, took Doe back to her room, where she performed oral sex on him. Doe claims to have no recollection of the sexual encounter, a claim that Amherst’s tribunal found “credible,” despite its ultimate ruling. Doe was her roommate’s boyfriend, which put her in an awkward position. Doe left, then Seward texted two people: a male and a female. She would go on to invite over the male and have sex with him around 5:00 a.m. At the hearing, Seward claimed only to text the female friend to help her handle the assault, but her texts read “Ohmygod I jus did something so fuckig stupid” and “it’s pretty obvi I wasn’t an innocent bystander” [sic throughout]. When Seward’s roommate found out about the incident, Seward found herself friendless.
During the 21-month period between the incident and the accusation, Seward found new friends in campus “victims’ advocates” circles. After Seward published an article about the incident, Doe reached out to Liya Rechtman, a leading activist on campus who was friendly with Seward, to ask if he could have mistreated Seward. Rechtman, employing a model S kafkatrap, essentially claimed that Doe’s question about Seward’s account of rape was sufficient to establish Doe’s guilt.
The disciplinary process at Amherst for such a case is heavily biased in favor of finding the accused guilty. An investigator interviews both the accuser and the accused, but the investigator has no subpoena power and is only required to make a “good faith effort” to speak to witnesses and gather physical evidence. While the accused is permitted to have an attorney present, the accused is not provided with one and the attorney may not participate in the hearing. The accuser and the accused are each appointed an advisor from the university, the advisor is not considered an advocate for the student. No direct cross-examination of the accuser by the accused is allowed. The accuser is allowed to respond in writing rather than orally. The standard is one of affirmative consent (i.e., guilty until proven innocent), but no explanation of how to prove that this standard was observed short of recording a sexual encounter is given. Concerning alcohol impairment, the standard says that “it is important that anyone engaging in sexual activity be aware of the other person’s level of intoxication” and that “an individual may experience a blackout state in which he/she/they appear to be giving consent, but do not actually have conscious awareness or the ability to consent,” but no explanation for how this might be determined is given. The decision in a case is made by a three-member panel drawn from the student life officials and faculty of Mount Holyoke, Amherst, Hampshire, and Smith Colleges, and the University of Massachusetts at Amherst. These officials lack tenure and could therefore be fired for making a sufficiently unpopular decision. The training for these panelists is not made public, but the only example of such training that has been made public involved blatant guilt-presuming. The standard used to determine guilt or innocence is one of “preponderance of the evidence” or 50+ percent, which is a far lower threshold than the “reasonable doubt” standard used in a normal criminal trial. Any guilty finding is “permanently noted on the student’s record.”
In practice, investigator Allyson Kurker took only one day to interview most of the witnesses, compared to weeks or months for a standard criminal proceeding. While Seward’s advisor was Rhonda Cobham-Sander, a tenured professor of Black Studies and English who specializes in post-colonial literary theory, and delivered a victims’ rights-oriented address after the 2012 sexual assault controversy at Amherst, Doe’s advisor was Torin Moore, a non-tenured administrator whose academic training was in “social justice education.” Doe is suing Moore for incompetent performance as an advisor in the case. In the hearing, Seward produced non-coherent testimony and wrote that she felt “very alone and confused,” so texted a friend to come over and spend the night with her. While Seward initially described the incident as wholly non-consensual, it came to be seen as consensual before changing during a “break” in the oral sex. Kurker admitted in the hearing that the point at which this change occurred was unclear.
In their decision, the panel ruled that while it was credible that Doe was blacked out, “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.” Seward’s claim that she withdrew consent at some point was not able to be challenged by Doe due to the nature of the procedure and a lack of exculpatory evidence, so the panel concluded that it was more likely than not that Doe was guilty. The panel members did not explain how or why they reached a guilty decision. The result is that Doe was expelled and trespassed from Amherst and a no-contact order with Seward was put into effect.
Due to the lack of subpoena power in the investigation, the falsehoods in Seward’s testimony were not revealed until Doe hired an attorney to investigate the case in the spring 2014 semester. The attorney found the text messages quoted above, which were unknown to Doe or the panel during the proceedings. Other messages showed that she texted the other male student prior to the incident with Doe, and resumed flirtatious texting with him after she finished with Doe. According to an affidavit by him, she was “friendly, flirtatious, and spirited,” and not “anxious, stressed, depressed, or otherwise in distress.” The messages to her other friend revealed that she was upset not at being sexually assaulted, but that she had initiated a sex act with Doe and that her roommate would ostracize her if she found out, which later happened. Despite being presented with the new evidence, Amherst declined to reopen the case, leading Doe to file a lawsuit.
Fortunately, the solution to cases and university policies like this may be quite simple. As Robby Soave at Reason points out, “In a twisted sense, administrators were correct to find John Doe guilty. He was accused of sexual assault, and he couldn’t prove the encounter was consensual. Imagine if he had accused her of sexual assault as well—the panel might very well have concluded that they raped each other.” (emphasis mine) If the standard is one of affirmative consent and preponderance of the evidence, then one course of action open to a man is to accuse a woman of rape whenever she performs an unwanted sex act on him. Sometimes fire is best fought with fire, and sometimes arguments are best rebutted by reductio ad absurdum. It may be that the best way to defeat rape accusation culture is to carry it to its logical conclusion and observe the contradictions, such as the impossibility of mutual rape. After all, it seems that the leftist media is intent on advancing this and that even liberal feminist professors cannot challenge it. Should this strategy fail and public universities become places of more blatant and open misandry, then the market can provide alternatives to college and help men escape an unhealthy environment.