Gender “Justice” at Washington & Lee

kozak

W&L’s Lauren Kozak: “Is it possible that there is something In between consensual sex and rape … and that it happens to almost every girl out there?”

Can this column in PJMedia possibly be a fairly rendered reporting of a “sexual assault” hearing at Washington & Lee University? If the story is accurate, it is scary on at least two grounds: (1) the novel theory of “gray” rape, a consensual sexual act later viewed with regret by the woman, is grounds for dismissing a male student from a prestigious Virginia university; and (2) a student can be evicted in a hearing without any pretense of what most Americans would consider a fair trial. Indeed, the W&L hearing resembled nothing so much as an administration-sanctioned kangaroo court.

I hesitate to draw sweeping conclusions from an opinion column until I have seen all sides of the story, although the author, Hans Spakovsky, a legal fellow with the Heritage Foundation, is a serious commentator, not some no-name blogger, and his account is largely consistent with that of a subsequent lawsuit reported by the Roanoke Times. These allegations are far more momentous than the fabulist Rolling Stone UVa fraternity-rape story because they suggest that the administration of a prestigious university has abandoned core principles of American jurisprudence — punishment of a novel, never-bef0re-articulated offense, the right to a fair and open trial, the right to a lawyer, the presumption of innocence, adherence to basic standards of evidence — in its internal proceedings.

The Rolling Stone article inspired an outpouring of investigative journalism by mainstream media publications, most notably the Washington Post. That’s understandable, given the horrifying nature of the putative crime, which confirmed the narrative of a lot of correct-thinking people. The W&L incident, it seems to me, justifies just as much attention. When political correctness hijacks the administrative machinery of a respected university, that’s just as big a story as frat boys run amuck. Let’s hope the Roanoke Times gives this story the full attention it deserves.

Update: Meanwhile, there’s another date rape controversy brewing at Virginia Wesleyan College.

(Hat tip: Tim Wise)

— JAB

There are currently no comments highlighted.

38 responses to “Gender “Justice” at Washington & Lee

  1. These proceedings are absolutely appalling. But in some semblance of trying to be fair to the institution: this is happening all over the country as the Obama administration’s Education Department has forced universities to change their standard of proof from “clear and convincing”, which is just below the “beyond a reasonable doubt” standard used for criminal cases, to “preponderance of the evidence” used in civil cases. The original justification for the use of “clear and convincing” was that the cases did not involve the possibility of incarceration. Now, however, the use of “preponderance” means that any slight tipping of the scale over an imaginary 50% results in a finding of guilty, with very serious consequences. Couple this with the abuses mentioned by Jim, and you have a complete travesty. Can you say… “Duke Lacrosse”

  2. Do ya’ll consider Hans Spakovsky a non-partisan middle-of-the-road commentator or PJ media to be a similar objective source?

  3. “If the story is accurate . . . ” Hmmm.

    This is a he said/she said situation and I don’t think anyone but the man and woman know what really happened.

    Consider the possibility that the opinion piece might have been written by someone who knows as little about the situation as we do. Consider the possibility that the school’s review procedure was fair. Consider the possibility that the facts presented by the opinion writer were self-serving facts fed to him by one of the parties. Consider the fact that a party can allege anything in a lawsuit.

    • Consider the possibility that the Roanoke Times article was impartial, and that the judge commented in his opinion to let the civil trial to go forward that the allegations made in the lawsuit, if “taken as true, suggest that W&L’s disciplinary procedures, at least when it comes to charges of sexual misconduct, amount to a practice of railroading accused students.”

      • You really don’t understand how a trial works do you? Everyone has a chance to make allegations and the judge has to assume that what has been alleged can be proven. The judge can’t dismiss a case at this stage unless there is no claim even assuming that all the allegations are true. That’s why he starts off his ruling with “taken as true”. You do your readers a disservice when you present unproven allegations as being true – you’re taking sides before you even know the facts.

      • And now you’ve got all of your conservative buddies ganging up on this poor woman and on W&L, without any idea of what really happened. When you write an article based on unproven assertions (“If the story is accurate”) you give them the opportunity to jump in and make their typical (anti-woman) observations. Guess what – some women do get raped at college by classmates. It’s a problem. You have to recognize that, don’t you.

  4. I bet John now regrets his interaction with Jane. Henceforth, Jane raped John.

  5. Kudos to Judge Moon for letting the suit go forward. He’s a very able jurist. I hope you will follow up on these proceedings, Jim.

  6. Except in the case of a dire emergency, everyone should get some form of hearing before any negative final action is taken. The hearing should include notice of all the charges and allegations; a chance to present evidence and review the evidence against the accused, including the right to confront one’s accuser; some known and understandable rules of procedure; and a fair and impartial judge or arbiter. Everyone should have the same rights.

    If the university won’t provide due process, the place to go is the courts. Let’s see what happens in court.

  7. Here, according to this somewhat sketchy report, a young women who, after acquiring two years of legal experience at Kirkland and Ellis Law Firm, left the law firm and the law to become the Assistant Director of office of Career Planning and Professional Development at W&L University.

    Thereafter she became the Title IX Coordinator and Assistant Director of Career Development of W&L and now has used her position there at the University to apparently (according to the report) help to ruin the life and professional career of a young male student at the university by helping W&L to (for all practical purposes) invent a new crime at W&L, and then by helping W&L to find this young male student there guilty of that crime by reason of its inventing a new definition of Rape on the campus of W&L.

    All this apparently is just fine and dandy at W&L, just another day in the life of a male student trying to get “an education” at W&L. How banal is evil.

    As horrible as the facts presented here appear to be, this gross injustice seems to be the logical extension and consequence of where our political ruling establishment and our federal government’s rule making and enforcement, including its expanding jurisdiction, is taking our nations institutions.

    Our rights as citizens and individuals are evaporating at an alarming pace.

    • Agreed, with nothing to add.

    • Having been one; worked with many; and supervised some, a lawyer with two years’ experience still has a lot to learn. Does this mean they are always wrong? No, but they still need supervision, as they have a lot to learn about the law and human beings.

      Let’s see what happens in court.

      • Precisely, a two year associate is still a novice on the lower end of a very steep learning curve. Many stall or burn out at this point. For good reason. It’s best to find the right track for their lives then, not later, for too many waste several more years in a trying to climbing the wrong ladder .

        So those who leave the law after two years as an associate, typically do so by reason of the fact that it is plain to them (and/or their employer) that the practice of law is NOT what that they were meant to do with their lives.

        All of which, of course, is fine. But the two year associate who quits typically is plainly not a “lawyer,” no matter the quality of the law firm or the academic record of the law graduate . And that typically is plain to all concerned.

        • From a reading of this particular account, the young lawyer in question as well as the staff at W&L did they legal research to invent a new crime and definition of rape at the university and apply the new law to the facts of the case by consulting Title IX and Cosmopolitan magazine. Hence the current state of the law and life at W&L in Lexington Virginia.

          • TooManyTaxes

            One of the big problems is that the Obama Administration often dodges statutory procedural requirements for adopting or changing rules. Of course, this administration is not the first nor will it be the last to take shortcuts by ignoring parts of its authorizing statutes and the Administrative Procedure Act.

            But the evidence of the last six-plus years shows procedural shortcuts are often the norm, rather than the exception. The FCC’s Enforcement Bureau in support of its proposed fines cites other proposed fines as precedent for what the rules are, rather than go through notice and comment rulemaking. Obama unilaterally has waived requirements of the ACA without following the APA and the ACA or seeking congressional changes. Without proposing rule changes and obtaining comments, Obama has gone well beyond any established concept of prosecutorial discretion and granted affirmative benefits to illegal aliens. Despite having enabling legislation rejected by Congress, the EPA has set itself up to regulate power plants beyond the mere control of pollutants authorized for regulation by statute.

            So I am extremely skeptical of the role of the US Dept of Education in this area. Pressuring colleges to change the standard of proof in alleged sexual assault cases may well fail to comply with the law. Unilateral action by the executive has been condemned for 800 years under Anglo-American law (the Magna Carta was signed in 1215). The Harvard legal scholar may well view himself as better than King John.

  8. Just another example of an ***hole liberal with an agenda trampling on somebody just to increase their notoriety.

    Let’s see … in Virginia in the last year we’ve had Sabrina Erdely and her story about the fictitious gang rape of “Jackie”. We have half-witted Lauren Kozak inventing new law by determining that consent can be revoked months after it is given. And we have this …

    http://www.slate.com/articles/news_and_politics/jurisprudence/2015/07/mark_weiner_conviction_vacated_chelsea_steiniger_text_case_finally_overturned.single.html

    A ridiculous prosecution of a man who was the victim of a jealous girl’s anger at her boyfriend. Both the prosecutor and the judge in that case belong in jail themselves.

    • Wow, frightening story. Sounds like there’s a “war against men” going on!

      • This latest story told in Slate is another piece in the growing mountain of evidence of the current twisted atmosphere of sexual hysteria in and around university towns such as Charlottesville, Virginia.

        This hysteria, and all the damage it does to innocent men and women, should be expected given the Democratic Party’s openly declared War on Women that is rolled out daily in an effort to win votes in elections.

        The President and Vice President of the United States have publicly declared that 20% of all college women are raped at some point during their time at college. This statistic is blatantly false, has been shown to be false and a gross overstatement, numerous times by reliable sources.

        Yet the US President and Vice President refuse to retract their earlier falsehoods. Instead they continue to endorse these falsehoods as part of their War on Women Campaign to gin up the votes of young women to win elections by preying upon the very women they claim to protect by creating false fears, anger, and angst within these women that turns them against their fellow male students in college, and males generally. The damage is causes is now obvious and horrendous to both men and women.

        It is hard to conjure up a more cynical and graven election strategy than one that lies to the electorate to create false wedge issues that work to destroy healthy relationship between the young college aged students in America, done to win political power over the victims of these lies.

        • Even the prosecutor of a serial killer has an obligation to disclosure exculpatory evidence to the defense counsel. My philosophy is pretty tough on criminals, but everyone deserves a fair trial. The prosecutor bears a special obligation to make sure it’s fair. As does the judge.

          • Reed Fawell 3rd

            There should be a law putting prosecutor’s in jail for intentionally withholding exculpatory evidence.

  9. From a legal point of view – if these practices are illegal – why are the practices themselves not litigated and ruled illegal/unconstitutional – period – as opposed to these cases being litigated and decided on a case by case basis?

    The folks that are opposed – are basing their opposition NOT on just one individual being wrongly treated – but instead on the institutional procedures themselves being wrong – yet I’ve yet to see a lawsuit – perhaps from the American Center for Law and Justice.

    Why don’t groups like this – directly challenge the Institutions themselves and seek – not just remedy for individuals already wronged but keep these schools for taking similar unfair actions against all future victims?

    Why not directly abut these practices, in general, at ALL schools?

  10. “From a legal point of view – if these practices are illegal – why are the practices themselves not litigated and ruled illegal/unconstitutional – period – as opposed to these cases being litigated and decided on a case by case basis?”

    Larry –

    Your question goes to the distinction that our system of government makes between its:

    Legislative Processes whose making of statutory laws are meant to establish rules that broadly and equally regulate conduct throughout the State. (These law making mechanisms are typically governed by state and federal constitutions as well as their own rules of internal procedure as adopted by particular legislative bodies there under),

    As opposed to:

    The application of that statutory law as well as common law to controversies arising in real time between litigants who file complains one against the other by reason of “causes of actions” arising in real time between them under law and so require adjudication by impartial courts to settle accounts between them and otherwise restore loss or bring justice back into balance. (These legal complaints are typically regulated by common law, statutory law, and commonly accepted rules of Jurisprudence and procedure.)

    Hence courts of law can apply law only to recognizable “causes of action” granting them jurisdiction. By this is meant the occurrence of a pattern of facts that happens in real time by which one party injures another party (causing the latter party actual harm) in violation of law properly applied.

    These are the base rules that socially minded litigants must work under and around to achieve their broader goals. Over time they have to a limited degree found ways to broaden their impacts. These range from enlarging the rules of procedure to embrace “class actions”, to rampant judge and circuit shopping to achieve ideology driven judicial decisions, to shopping for perfect fact patterns to litigate to create bad law, to highly coordinated national campaigns of targeted litigation that embraces multiple tactics to strike down laws and/or to create or otherwise make new laws through individual judges purporting to act within the judicial process, and now even to corrupt the administrative rule making process to circumvent courts and legislatures so as to short circuit representative government altogether.

    This can become a dangerous game. It “invents” laws that are highly resistant to legitimate change. The problem magnifies if combined with dysfunction within legitimate government and the rise of an intolerant society. This cancer can grow rapidly and exponentially throughout the body politic.

    Hence, for example, these quotes in today’s Wall Street Journal:

    “I don’t know what happens with Mr. Trump, but Trumpism? That’s here now – outlandish candidates backed by indignant, enraptured people who’ve lost their judgement. Congratulations to the leaders of both parties: the past 20 years you’ve taken us far. We’re entering Weimar, baby. The swamp figure is up from the depths.” See The Three Presidential Primaries by Peggy Noonan.

    And:

    “Hillary Clinton’s use of a private email server to conduct public business while serving as secretary of state, followed by the deletion of information on that server and the transfer to her lawyer of a thumb drive containing heretofore unexplored data, engages several issues of criminal law …” See Clinton Defies the Law and Common Sense by Michael B. Mukasey.

    Please note how in both cases cited above large segments of the American people, its leaders and its political parties, are complicit in their nation’s breakdown of law, governance, and common sense.

  11. I read the Mukasey article and it’s bogus to the bone in my view but you decided to bring it up… so I’ll give you my view. Why you brought it up in the context of my original question.. why?

    Remember this is THE GUY who thinks torture is legal and actually ” told American Bar Association annual meeting delegates that “not every wrong, or even every violation of the law, is a crime”, with “only violations of the civil service laws” being found among hiring practices during Gonzales’ tenure as Attorney General”

    Hillary was clearly wrong on what she did – but what she did had been a common practice by not only her predecessors at State but many others who were never charged.

    If ANY recipient of ANY information NOT actually labelled as classified and it was subsequently determined to be classified (but not marked properly) – if that person, as the recipient, was guilty of violating the law – let me assure you that thousands of government employees would be “guilty” including those who have release information to the Press. YOU would be “guilty” even though you did nothing but receive it.

    What Petraeus did was to actually copy clearly marked classified information off of a classified computer onto an unclassified device and gave it to someone who did not have a clearance.

    He was charged with a much less crime than he was actually guilty of. That’s normally treated as treason as Chelsea (Bradley) Manning and
    Edward Snowden have been charged with.

    What Clinton is most guilty of is stupidity of doing something others were doing for quite some time and not called to account for – i.e. maintaining a private account that she was conducting official business on – something that you’ll find that many, including current members of Congress and the Virginia GA and other elected also do.

    she made it worse because she also was in a role that required her to deal with classified info – which she undoubtedly had a separate classified account for – more than likely two – one for SIPRNET and one for JWICS – both of which are used by many in govt for classified data – including the POTUS and many others – at secure facilities including Air Force One and other aircraft and ships and overseas Embassies, etc.

  12. Without reading either of the WSJ columns, I’m wondering how this discussion moved from an event over what constitutes a rape at Washington and Lee to a former secretary of state’s use of private email servers in violation of even her own demands to state department staff.

    I submit that that massive change in the discussion illustrates that we all — myself included — have a very difficult time NOT seeing what we want to see in every single situation.

    Back to the original point of Mr. Bacon’s column. While the PJ Media oped, of course, might be biased, the Roanoke Times and the federal judge cited are supposed to try and honestly understand/report the issue. There are humans involved, of course, and therefore nothing is truly impartial but, as Mr. Bacon said in response to one comment, “consider the possibi;lity that the Roanoke Times was impartial.”

    Here is my question: “Why can’t we as a society ever manage to get ‘it’ right? Why do we swing from too far in one direction (protection of rape victims, for example, from the horrors of re-living the issue in any kind of proceedings) to too far in the other (denial of what used to be considered basic rights actually enumerated in the Magna Carta about 30 generations ago)?”

    It seems to me — obviously my opinion — that today this massive swing in at least a dozen issues/concerns is happening 1) faster and faster and 2) going further one direction before coming back towards the other.

    Why are “we” — the alleged intelligent animal — so (seemingly) incapable of getting “it” right???

    • Salz –

      This is great question: “how did we move from discussion of rape at W and L to Secretretary of States e-mails servers?” Paraphrased.

      I believe that the answers to that question lie in the corruptions that now affect many of our nations institutions by reason of growing intolerance on the part of elites, and their willful suspension of our laws so as to engage in illegal conduct often posing under the guise of law. In many ways our society is rotting from the top down.

      Thus two seemingly unrelated and very different events are in fact closely related after all.

      • PS –

        In many ways our society is rotting from the top down similar in many ways to the German Weimar Republic after WWI giving rise ultimately to a Fascist state in 1933.

        • Salz –

          Below you can find a copy of the 37 page complaint filed in the United States District Court, Western District of Virginia against Washington and Lee University arising from the “grey rape conviction” under discussion. The court recently denied W and L’s motion to dismiss this complain, allowing it to go to trail on the merits.

          //kcjohnson.files.wordpress.com/2013/08/washington-and-lee-verified-complaint.pdf

          The allegations in this complain are well worth reading.

        • Salz –

          Below you will find a rather detailed news report on various claims relating to the complaint and unsuccessful efforts by W and L to dismiss the complaint.

          See: washingtonexaminer.com/judge-upholds-accused-students-gender-bias-claim/article/2569840

          If true, the allegations asserted in this report only add to my long standing and many assertions for years now on this website of the ever mounting evidence that many of the institutions in this nation, including those of federal and state governments and higher education, are rotting from the top down at an alarming rate.

        • On a related Matter the Chairman of the U.S. House Judiciary Committee sent letters today to the presidents of 161 public colleges and universities across the country to ask them why their policies fail to protect the First Amendment rights of students and faculty.

          The letters were sent by Representative Bob Goodlatte to leaders of institutions 161 of the 247 institutions that received the Foundation for Individual Rights in Education’s (FIRE’s) lowest, “red light” rating in our annual report on campus speech codes.

          It should be noted that in April 2014, Virginia Governor Terry McAuliffe signed into law a bill effectively prohibiting the establishment of “free speech zones” on Virginia’s public university campuses.[6] The law provides:

          Public institutions of higher education shall not impose restrictions on the time, place, and manner of student speech that (i) occurs in the outdoor areas of the institution’s campus and (ii) is protected by the First Amendment to the United States Constitution unless the restrictions (a) are reasonable, (b) are justified without reference to the content of the regulated speech, (c) are narrowly tailored to serve a significant governmental interest, and (d) leave open ample alternative channels for communication of the information.

          Given that roughly one in six universities surveyed nationally by FIRE maintains some type of free speech zone, this first-of-its-kind legislation is an important step for free speech on campus, and one that FIRE hopes more states will take in the years to come.

          This subject in discussed in depth at: http://www.thefire.org/spotlight-speech-codes-2015/#red

          Note that the complaint in the W and L rape finding that expelled at student from that university include allegations relating to the defendants rights of free speech in his defense of the charges against him.

    • re: ” Here is my question: “Why can’t we as a society ever manage to get ‘it’ right? Why do we swing from too far in one direction (protection of rape victims, for example, from the horrors of re-living the issue in any kind of proceedings) to too far in the other (denial of what used to be considered basic rights actually enumerated in the Magna Carta about 30 generations ago)?””

      well I agree. We cannot, any longer, seem to agree on what protects the rights of some without abridging the rights of others, eh?

      “It seems to me — obviously my opinion — that today this massive swing in at least a dozen issues/concerns is happening 1) faster and faster and 2) going further one direction before coming back towards the other.”

      yes. there are not only stark divisions today – but they are litigated on a hyper basis – because, in my view, of the power and currency of the internet to give voice to any/all with a view. Free Speech on steroids with as much as one wants and way more .. to the point of ugly.

      so we get the breadth and depth of viewpoints and, in turn, the best and the worst of us – all – in minutes/hours.

      we’re not better or worse, mind you, we just know it much quicker and in massive and intricate detail! the word “viral” is now routine.

      Some folks decry that guys are being wrongly railroaded for rape they did not commit while others point to all the guys that have gotten away with rape in the past and probably still are now.

      but I think at least some of derives from the larger idea of the govt in general and this administration in particular as imposing top down requirements – not just on this, on Common Core, the EPA, mixed marriage, health care, etc. This, of course, at the same time – the same folks DO want top down on issues like abortion, immigration, Keystone, bulk phone/data collection, etc.

      if you key phrase – search – the W&L rape , you’ll find a fairly large assemblage of what I call “echo chamber” sites.. that are usually opposed to the govt and this administration.

      Not sure, if what is being done now is so wrong – what “right” ought to be – though.

  13. I responded (perhaps wrongly) but some folks see EVERYTHING as “connected” … part of some sinister unraveling of society, etc..

    But I DID have a curiosity as to why ONLY the Roanoke paper apparently covered the issue… (not counting all the “echo” sites) so I went looking.. and found this one:

    “W&L files motion to dismiss sexual assault lawsuit”

    http://rockbridgereport.washingtonandlee.net/?p=13691

    and it DID have an original quote from one of the principals:

    ” He claims that his accuser changed her mind about their encounter and came forward eight months after the incident in response to a presentation by W&L Title IX Coordinator Lauren Kozak on Oct. 5, 2014 in which Kozak argued that consensual sex could constitute rape.

    In documents the university filed in the case earlier this month, Kozak refutes Doe’s account of the presentation and says she was not in attendance Oct. 5, 2014.

    During the presentation, according to Doe’s lawsuit, Kozak told students “regret equals rape.”

    “This is also false,” Kozak says in W&L’s response to the lawsuit. “I never made any such statement during an Oct. 5, 2014 presentation or at any other time, nor do I believe that statement is true.”

    yes when you read Spakovsky’s account in PJMedia – you kind of don’t get that flavor.

    I have questions about the length of time between the incident and charges and actions taken.. for sure…

    but this kind of thing has become a Cause célèbre among Conservatives and anti-Obama folks so it’s hard to really trust articles like this for objectivity.

    and of course.. in some folks minds – false rape is equivalent to illicit emails and other “wrong” thinking…

  14. Larry, thank you for your original thoughtful question.

    You are however now off again on one of your wild partisan rides, this time attacking a respected messenger judge which proves the exact point of my assertion. Now I only lack a wild partisan rant defense of Trump by one of his true believers attacking the respected journalist who reported on his fitness to be president of the United States.

    Then we will have a matched pair proving my point.

    Regarding the merits of Clinton and her e-mails I leave that for the courts to decide should they be given the opportunity to do so. I would however say that your defense of her actions on the basis of your claim that she is guilty only of being stupid will be denied by the court in the absense of proof beyond a reasonable doubt that she is insane or so mentally impaired that she cannot be held accountable for her actions, and hence should be committed to the care of an institution in lieu of running the nation from the White House.

  15. No Reed. I did not bring up the other issues.. you did – you had every opportunity to not do it and you did what instead?

    what’s really partisan and stupid is the ignorant responses from folks who do not understand how classified material is actually handled.

    you don’t SEND classified material on an unclassified computer without classification labeling – from the start. ANYONE who actually puts classified material on an unclassified computer is guilty.

    Now, If Clinton actually did download classified material from a classified computer onto an unclassified thumb drive and then uploaded it onto her server and sent it out – then YES – she will be charged and found guilty like Petreaus, Manning and Snow.. and with my full approval and blessing.

    Whoever SENT classified material on an unclassified computer to start with is who is going to be in trouble. All the folks who RECEIVED it, if guilty at all, are guilty of something entirely different, of not questioning it but if you apply that standard equally – it would apply to every single person who received the original email and did not report it and it would likely include hundreds, thousands of people.

    So how would you actually do that? You’d have to go through EVERY email sent.. THEN find something in each email that was LATER determined to be classified and then make a list of every person who received the email and did not spot the offending material and report it.

    You want to do that for the entire State Dept and DOD – going back how many years?

    well no, of course not.. we’re only really after one person , right?

    That’s what your “respected” guy is actually advocating…right?

  16. from REED the 3rd:

    ” And:

    “Hillary Clinton’s use of a private email server to conduct public business while serving as secretary of state, followed by the deletion of information on that server and the transfer to her lawyer of a thumb drive containing heretofore unexplored data, engages several issues of criminal law …” See Clinton Defies the Law and Common Sense by Michael B. Mukasey.

    …………..

    I believe that the answers to that question lie in the corruptions that now affect many of our nations institutions by reason of growing intolerance on the part of elites, and their willful suspension of our laws so as to engage in illegal conduct often posing under the guise of law. In many ways our society is rotting from the top down.”

    these are your own words Reed. Own them.

  17. There you go again Larry.

Leave a Reply