Saturday, January 19, 2013

UNC & A Credulous Press

Last year, in a post over at Minding the Campus, I examined how the University of North Carolina responded to the Obama administration’s “Dear Colleague” letter, which required all colleges receiving federal assistance to change their sexual assault procedures. The new procedures enhance the likelihood of conviction, by using a “preponderance of evidence” [50.1%] standard and by introducing double jeopardy through an accuser’s right to appeal not-guilty findings.

Even before these mandated changes, the system that previously existed at UNC already made a mockery of due process rights for the accused. Unless the accuser simultaneously filed a criminal complaint, the accused student couldn’t be represented by counsel in the hearing. (“Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings.”) When criminal charges were filed, a lawyer could be present but not speak to the hearing panel or cross-examine witnesses. And the hearing panel had the right to obstruct an effective defense by restricting exculpatory evidence only to material that “does not otherwise infringe the rights of other students.”

In response to the “Dear Colleague” letter, UNC further weakened the due process protections for students accused of sexual assault—and only for these students. It set up a two-tier student judicial system. Students accused of all other offenses would continue to be tried by the school’s Student Honor Court and according to a standard of beyond a reasonable doubt. But students accused of sexual assault (a far more serious allegation than most student judicial questions) would be adjudicated under a far lower threshold (preponderance of evidence). And the claims would no longer be heard by the Student Honor Court but by specially trained evaluators.

Celebrating the new system in a fawning interview with InsideHigher Ed was an assistant dean of students, Melinda Manning. Manning said the existing system (that is, the system that denied students accused of sexual assault the right to be represented by counsel in their hearing) was too accuser-friendly, since the Student Honor Court improperly required “victims [not ‘alleged victims’ or ‘accusers’] to be judged by a roomful of peers.”

Ponder that statement for a minute.

To reiterate: last April, UNC took a system that already denied basic due process to accused students—and made it more likely that accused students would be convicted, by lowering the threshold for a guilty finding in sexual assault cases and only sexual assault cases, and by ensuring that students accused of sexual assault wouldn’t be evaluated by the campus equivalent of a jury of their peers.

Manning is back in the news—as a supporter of a federal civil rights claim filed by current and former UNC students who assert they were victims of sexual assault but that the system described above so failed to protect their rights that it created a hostile campus environment under Title IX. “My original plan was just to walk away and forget about everything that’s happened,” Manning (the opponent, again, of allowing students accused of sexual assault to be judged by a jury of their peers) e-mailed the Daily Tar Heel. “But I love Carolina too much to do that. I can’t assume that someone else will fix these problems without my input.” 


The complaint itself isn’t public, but was seen by the Daily Tar Heel. Writes reporter Caitlin McCabe (wholly uncritically), “The complaint is rich with stories of hostility, including the administration’s failure to train Honor Court members who facilitated sexual assault hearings, to treat both the accused and accusing student fairly and to keep survivors informed.” McCabe’s article also speaks of one of the complainants working on behalf of herself and “65 sexual assault survivors” at UNC. The word “alleged” does not appear in McCabe’s article: as presented by the DTH, each of these 66 accusers was, in fact, victim of a violent crime. The article contains no mention that any of these complaints actually resulted in a conviction (or even a trial).

McCabe did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.

Interestingly, Star-Ledger columnist Steve Politi—who did excellent work on the lacrosse case, and who once seemed to understand the danger of college students facing sexual assault claims amidst a lack of due process (though at least Reade Seligmann, about whom Politi wrote, had the right to a lawyer, unlike accused students at UNC)—tweeted commendably about the DTH’s uncritical coverage of the complaint.

In the N&O, reporter Gloria Lloyd likewise declines to use the phrases “alleged victims” or “accusers,” and instead reports as fact that 66 rapes occurred. “The students say,” she writes, “they are sexual-assault victims and that the university mishandled their cases by not believing or supporting them or by accusing them of being at fault in their attacks.”

Lloyd does not explain how “not believing” a claim, in and of itself, could constitute mishandling of a case. Even the pro-accuser OCR has never maintained that a finding of not guilty (that is, “not believing” the accuser) indicates a problem with the process.

Lloyd did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.
University Of North Carolina Routinely Violates Sexual Assault Survivor Rights, Students Claim.” The article seems to speak as if there’s no question that each rape occurred, noting that the complaint was filed by two “survivors” and “64 other victims.” Oddly, at other points Kingkade describes accused students as “alleged rapists” who committed “alleged abuse.” How a “victim” is produced by a rape that remains only “alleged” Kingkade does not reveal.

Unlike Lloyd and McCabe, Kingkade does reference—obliquely—the UNC procedures (though he doesn’t discuss the rules against an accused student having representation in the hearing, or the low threshold for a guilty finding), merely noting that the Honor Court no longer is allowed to hear cases. He then quotes from a UNC student referencing the change (designed to make convictions more likely) as perpetuating a “culture of silence.”

Kingkade at least reached out to someone beyond the ranks of accusers and their supporters. He interviewed Student Press Law Center attorney Adam Goldstein, who astutely noted that “law enforcement and the adjudication of rape cases in general does not lend itself to amateurs.”

The most striking aspect of both the DTH and the N&O articles came in their decision not to describe, in any way, the procedures that supposedly treated these 66 rape victims unfairly. How could any DTH or N&O reader know, for instance, that a process that’s supposedly indifferent to the suffering to rape victims in actuality denies accused students the right to counsel, or allows conviction on a 50.1% threshold? The HuffPost article does, briefly, mention UNC procedures, but only to bizarrely imply that the 2012 changes perpetuate a culture of silence.

Including the necessary procedural context, of course, would have dramatically altered the uncritical acceptance about the facts of the complaint that the reporters brought to their articles. Given their uncritical acceptance, however, each buried the lede: the major issue would seem to be the discovery that the seemingly placid UNC campus is actually a center of violent crime. According to the DTH, the N&O, and Huffington Post, there were at least 66 sexual assaults at the University of North Carolina over the past six years—an average of 11 sexual assaults per year. (The articles reference 2007 as a starting date for the complaint, although they’re not entirely clear on this point.) And, again, each article uses wording that indicates these violent crimes definitely occurred—“survivors” and “victims,” not “alleged victims” and “accusers.”

Accordingto FBI crime statistics during this period, Chapel Hill is listed as having had 9 rapes in 2008, 14 rapes in 2009, 11 rapes in 2010, and 7 rapes in 2011—for an average of 10.3 per year. (Figures for 2007 and 2012 aren’t available.) In short, comparing FBI stats to the figures presented uncritically by the DTH, the N&O, and HuffPost, every sexual assault in Chapel Hill over the past several years has occurred to a UNC student. That’s an extraordinary development, a suggestion that the campus is a virtual hotbed of violent crime in an otherwise utterly placid city.

Or, perhaps, could it be that the statistics presented uncritically by the DTH, the N&O, and HuffPost deserved a bit of journalistic skepticism—and that a system that denies basic due process to accused students can’t uncritically be described as mistreating accusers?

Hat tip: B.


Anonymous said...

Manning is a double tar-heel as graduate of UNC and UNC law school. Maybe she knows NC lawyers too well to allow them near impressionable student court members. The accused will be left with the Bart Simpson defense, " I didn't do it, you didn't see me do it, you can't prove a thing."

Chris Halkides said...

I cannot advise in good conscience high school students to attend Duke as undergraduates. Now it seems that I cannot advise them to attend UNC-Chapel Hill, either.

Anonymous said...

This uncritical acceptance of one side of the sexual assault story mirrors what happened at the Air Force Academy in 2004. There was virtually no media challenge of the claim that stories of rape and sexual assault were ignored by the school leadership, despite these reports being thoroughly investigated (and dismissed as fanciful or unprovable) by military criminal investigators and attorneys. The end result was the smearing of a student body and institution that was, according to DOJ statistics, one of the safest in the country for women.

Anonymous said...

Have you noticed that Linwood Wilson is recognized as the best lawyer in the group?

Anonymous said...

Thank goodness no blame falls on the UNC basketball team for any of these problems. I am sure everyone is relieved to hear that.

A Duke Dad said...

For those of us not in the Academic field :

What compels an accused student to participate in a University hearing on sexual assault ? What are the consequences of ignoring the University's jurisdiction?

Also, does the accused student have the right or ability to file a countersuit -- "She groped me".

Anonymous said...

Assuming the charges in the lawsuit are true, the administrators involved will be fired, yes?