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A Higher Education for #MeToo?

If you have not been living under a rock and are on at least one social media platform, you should remember October 15, 2017—a little over a year ago, where two small words flooded your newsfeed.  #MeToo.  Many responded with their own stories of sexual harassment and assault, and there seemed to be an outpouring of support for all of the survivors coming out of the shadows with two simple words.

Actress Alyssa Milano’s encouragement for all those who had been sexually harassed or assaulted to write “me too” in response to her message last October saw the birth of what now, a year later, is a full-blown movement.  To give credit where credit is due, Tarana Burke, a sexual assault survivor and activist, coined the phrase 8 years before Alyssa Milano used it as a call to arms.  Since #MeToo’s inception, our nation has been shocked into confronting a long-standing rape culture; an historic culture of misogyny, harassment, and gender-based violence whose victims have, for the most part, had to suffer in silence for fear of stigma, loss of livelihood, and re-victimization.  It seems that with the public “calling out” of some of society’s elite, including media mogul Harvey Weinstein, Roy Price of Amazon Studios, actors Kevin Spacey and James Franco, politician Roy Moore, artist R. Kelly, athletes like soccer star Cristiano Ronaldo, and of course, recently confirmed Supreme Court Justice, Brett Kavanaugh, there is a new court in town: the court of public opinion.  While some of those “called out” have been charged criminally, most have been adjudicated and sentenced in the court of public opinion—losing jobs, contracts, and reputations that had founded their entire careers.

For some who have suffered, this new “justice” is a good starting point.  For years, survivors and crime victim advocate groups have decried the criminal justice system for failing those who sought justice against their abusers.  The system fumbled at various levels of the process, from the gross number of rape kits back-logged for evidence processing to the failure to pursue claims of sexual assault or abuse by law enforcement.  And, should a case make it to litigation, the system is accused of doing too much to protect the rights of the accused at the expense of the victim.  Indeed, in an adversarial process, the accused or defendant is pitted against the State—acting on behalf of the victim, who, for the most part, is absent from the proceedings and is often relegated to a mere witness in the State’s case.  Advocacy groups argue that even more egregious is the process of cross-examination—a fundamental right of the accused—that many times has the potential to re-traumatize victims who are put under a microscope and picked apart after recounting the events.  But now, thanks to “#MeToo,” the often times silencing, formal criminal justice process is not the only way to seek some form of justice.

As criminal defense attorneys, the #MeToo era presents some complex, ambiguous, and morally challenging questions.  When does the court of public opinion go too far in usurping the constitutional rights of the accused?  Does staunch advocacy for the constitutional rights of the accused lend to the systemic abuse of victims?  Is the adversarial process the best way to handle criminal sexual allegations?  A pressing question undoubtedly on the minds of many in the defense world surrounds a recent ruling out of the 6th Circuit Court of Appeals that examined the University of Michigan’s decision to expel a male junior student after a female freshman student accused him of sexually assaulting her at a fraternity party.

Campus sexual assaults, in particular, have received a lot of attention prior to #MeToo, and universities have received more criticism than courts for what advocates call dismissive treatment of students who allege sexual assault. The case before the 6th Circuit was a proverbial “he said/she said” case, with each side producing witnesses in its favor, 23 witnesses in total.  Doe, the male student, and Doe’s student witnesses reported that the sex between the two had been consensual and that Roe, the female student, did not appear to be intoxicated at the time of their contact.  Roe and her witnesses reported the opposite, and Roe reported that she had been blacked out during the assault.  The school’s investigator found both sides equally compelling and determined that the preponderance of evidence standard was not met, ultimately recommending that Doe be cleared.  Roe appealed the decision, and without considering any new information, the school board reversed its decision.  Doe withdrew from the university prior to a possible expulsion.  Doe was only 13.5 credits—one semester—away from graduating.

Circuit Judge Amul Thapar stated in his strongly worded opinion:

If a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.  Because the University of Michigan failed to comply with this rule, we reverse [the lower court’s decision].

Essentially, this ruling states that when it comes down to which side is more credible, universities ought to run more like courtrooms and allow the parties to question each other.  “Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives.”  (Soave, 2018).  After all, due process, ensuring that a procedure is conducted fairly, is where defense attorneys stake their claim to fame and is how they explain what they do to those who do not fully understand what is at stake for everyone should a process be unfair.

While this new ruling may seem like another harrowing win for the rights of the accused, what does it look like in the era of #MeToo, where the court of public opinion seems to circumvent due process?  Should universities act like quasi-judicial bodies in quasi-criminal proceedings?  After all, discipline from a university, such as expulsion, would follow someone through life and could potentially lay the foundation for additional civil and criminal cases.  Does this mean universities will have to allow legal representatives for both the accused and the victim to actively participate—something most universities do not allow at this time?  These are all questions universities will now face in light of this decision and updated rules regarding Title IX proceedings.

The truth remains that no number of procedures, rules, consequences, or after-the-fact protections will solve the crisis of assaults on campuses.  The problem requires a much more complex solution and a nationwide conversation, one that speaks to a shifting of societal values, one that does not rely solely on adversary to force understanding.  It will be a long, uphill battle.  The law is reactionary by nature and slow to catch up with the changing needs of society.  But one thing stays the same—the need for equal protection under that law for all, regardless of their individual situations.

Robby Soave, In Due Process Lawsuit, Appeals Court Sides with Michigan Student Expelled for Sexual Misconduct, Reason (Sept. 9, 2018), https://reason.com/blog/2018/09/09/michigan-due-process-title-ix-student.

Christine Emba, Our Endless Debate about Campus Rape Misses the Central Problem, Washington Post (Sept. 15, 2017), https://www.washingtonpost.com/opinions/our-endless-legal-debate-about-campus-rape-misses-the-central-problem/2017/09/15/bf79d92c-9a4