Colleges and universities almost certainly face a deluge of lawsuits from accused males over the mishandling of sexual misconduct hearings. Columbia and Drew, for instance, have joined the ranks of universities sued by male students claiming that unfair processes led to disciplinary action against them. At first blush, the Drew case involves a typical he-said-she-said situation, but in fact there were several twists. The accused student, Kevin Parisi, suggests that his accuser, Kai Boulware, had a motive to lie about the consensual nature of their one-time intercourse–to protect her relationship with her boyfriend, Jacob Levy. Parisi claimed that Boulware told him that her boyfriend pressured her to make the complaint, and that she had told another acquaintance the intercourse was consensual. (The acquaintance subsequently confirmed this in a conversation with a private investigator.) The complaint also alleges that Boulware refused to cooperate with a police investigation of the case.

The twist in this case is that the evidence was so weak–indeed, the acquaintance’s testimony wholly undermined Boulware’s portrayal of events–that Drew found Parisi not culpable. But this occurred after a three-month process (during most of which Drew did no investigation, including, the complaint alleges, not looking into Parisi’s assertion that Boulware had contacted him in violation of a university-demanded no contact order). For that period, Drew ordered Parisi to remain off campus, including staying away from his dorm room, except for attending class.

Punishment First, Judgment Later

Civil libertarian critics, such as FIRE and Hans Bader, have pointed out the disturbing nature of OCR’s demanding colleges implement “interim” measures that amount to a punishment first, judgment later. The Parisi case is a good example of the toll that such policies can take on the innocent; he’s suing Drew on the grounds that the university’s treatment of him discriminated on the basis of his gender.

A second recently-filed case, at Columbia, is more typical of the recent spate of Title IX cases. (Both parties are anonymous in the complaint.) Five months after what the complaint describes as a brief hookup, the Columbia accuser filed a college complaint against a male member of the Columbia crew team. The accuser hadn’t sought medical attention the night of the incident, and she never reported it to the police. She did, however, text the eventually accused student, expressing concern about how the tawdry nature of their hookup would affect both of the students’ social standing if word of it spread. In the end, Columbia deemed the accused student a rapist and suspended him for 1.5 years.

The complaint focuses on the unfairness of Columbia’s process (about which I’ve written previously)–no attorney in the hearing, minimal right to cross-examination and call witnesses, preponderance-of-evidence threshold inviting a guessing game by the tribunal. The complaint suggests (as occurred at Drew, and as we’ve also seen at Vassar in the Peter Yu case), Columbia didn’t meaningfully investigate potentially exculpatory witnesses–in this instance, fellow students who saw the pair chatting before they hooked up. Nor, according to the complaint, did Columbia even inform the accused student about the basically toothless assistance (the non-attorney advisor) to which he was entitled as a part of Columbia’s process.

Finally, as occurred in the Witt case at Yale, Columbia had one last surprise for the accused student–despite the promised confidentiality of the university disciplinary process, his name was leaked to the campus newspaper.

The Columbia complaint describes a student who naÃ¯vely felt the university would conduct a good-faith investigation–trust that was badly misplaced. (Since the accused student didn’t have an advocate, he hadn’t even prepared an opening statement for his hearing, and the witnesses he thought would undermine his accuser Columbia never were interviewed.) The complaint not unreasonably hypothesizes that Columbia acted as it did lest the university further inflame the witch-hunt atmosphere we’ve seen at Morningside Heights in recent months.

What, precisely, is the current atmosphere at Columbia? It perhaps reached its low point when fliers were posted around campus listing four male students as “rapists”–based solely on their being found “‘responsible’ by the University.” Leave aside the fact that calling someone a “rapist” who hasn’t faced criminal charges, much less been found guilty in a court of law, would seem to constitute a borderline (at the least) libelous statement.

An Absurd Definition of ‘Sexual Assault’

Instead, consider Columbia’s extraordinarily broad definition of “sexual assault,” which goes far beyond anything in the criminal justice system, in two respects.

First, the university defines sexual assault as not only rape, as understood in the criminal justice system, but also “any intentional sexual touching, however slight, with any object without a person’s consent. Intentional sexual contact includes contact with the breasts, buttocks, groin, or touching another with any of these body parts, or making another person touch any of these body parts; any intentional bodily contact in a sexual manner.” How many people would consider such behavior–while indefensible–to constitute rape? To Columbia, however, forcible sexual penetration and nonconsensual “sexual touching, however slight” are both “sexual assault.” And the fliers suggest that the message has been received.

Second, while the university notes that sexual assault, by definition, comes without consent, it modifies this provision in a critical way: “Alcohol and other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and affirmatively given.” Taken literally, then, any alcohol use by the female party to sexual intercourse could call into question whether a Columbia tribunal will subsequently brand a male student a rapist, since even if the female gave consent, the university claim non-consensual contact on grounds of “confusion over whether consent is freely and affirmatively given.”

In this atmosphere, accused students appear to be guilty until proven innocent, even as Title IX claims suggesting that the definitions above (coupled with procedures that deny accused students the right to counsel) unlawfully act against the rights of accusers.