A Reply to McMahan and Singer on the Stubblefield Case

Jeff McMahan and Peter Singer have a piece in the Stone today at the New York Times that I think is woefully ill-argued, in which they conclude that Anna Stubblefield has been treated unjustly by the courts, and question whether or not the man she was convicted of sexually assaulting was really harmed by her. I’m not going to address every point in their piece — but I do think it’s important to say a few things.

First, while I haven’t seen all of the evidence they have apparently been made privy to, there is enough in the public domain to know that their description of the events which transpired is deeply misleading.

For example, on the matter of John Doe’s* communicative capacities, they write,

“Sheronda Jones, an undergraduate at Rutgers at the time, volunteered to assist [John Doe] by using facilitated communication so that he could write papers for an English class he was auditing at Rutgers. Before the trial, Jones had told a detective in the Essex County Prosecutor’s Office: “He pretty much read the books. I didn’t know any information about the book. I made sure never to read any of the information. I can’t tell you what he read. And he typed out the information.” Jones did not attend the class [John Doe] took. If she did not read the material on which his work was based, how could she have produced writings that respond to that material?”

They fail to mention that Jones’ statement went on to note that one of her roommates was in the same class, and she knew that her roommate and John Doe produced similar writings for the class. So, how could she have produced writings that responded to the class material which she had not read? By reading her roommate’s homework.

They also fail to mention that despite training in how to use facilitated communication, neither John Doe’s mom or brother was ever able to successfully use it to communicate with John Doe, and that they believed the purported communications facilitated through Stubblefield conflicted with what they knew about John Doe from experience living with him (e.g., according to Stubblefield, John Doe didn’t like gospel music, but according to his family, his behavior suggested he particularly enjoyed it).

As another example, on the matter of the assault itself, they write:

“If we assume that he is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation. These are, after all, difficult to articulate even for persons of normal cognitive capacity. In that case, he is incapable of giving or withholding informed consent to sexual relations; indeed, he may lack the concept of consent altogether.

This does not exclude the possibility that he was wronged by Stubblefield, but it makes it less clear what the nature of the wrong might be. It seems reasonable to assume that the experience was pleasurable to him; for even if he is cognitively impaired, he was capable of struggling to resist, and, for reasons we will note shortly, it is implausible to suppose that Stubblefield forcibly subdued him. On the assumption that he is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.”

Now, just on the question of if John Doe was forcibly subdued, set aside for the moment that of course assault is not actually the sort of thing where all perpetrators lurk in dark alleys, twirling their mustaches as they lay in wait, ready to do obvious physical violence, and one need not have been forcibly subdued in order to be a victim of assault — as a matter of fact, the evidence does suggest that John Doe tried to get away from Stubblefield, at least on the first occasion they had sexual contact. As the New York Times wrote on this case back in 2015,

“They met the following Sunday at [John Doe]’s house, while his mother was at church. They tried to kiss while lying down on [John Doe]’s bed, on the theory that it would be easier, given his impairments. But [John Doe] kept sitting up, and then he lowered himself onto the floor. Anna offered him the keyboard and asked if anything was wrong. Nothing’s wrong, he typed, he was very happy, but also overwhelmed — he needed a minute. Anna said O.K., and [John Doe] scooted out into the hall.”

Stubblefield performed oral sex on John Doe a few minutes later.

Second, philosophically, this argument is quite astounding. One’s being incapable of giving or withholding informed consent to sexual relations makes unclear what the nature of the wrong of sexual assault could be? Seriously? Why ever should we think that one must have the cognitive capacity to conceptualize precisely how one has been harmed in order to have been so harmed? Are small children not even possibly victims of sexual assault? Can animals not be unjustly exploited? Are persons with severe brain damage incapable of being victims of theft?

Why think experiencing pleasure precludes genuine harm? And even if one wanted to subscribe to a principle so readily met with counter-examples, why ignore that, again, according to Stubblefield’s own description of events, on many occasions John Doe expressed discomfort?

On the question of predation, McMahan and Singer write:

Judge Teare described Stubblefield as “the perfect example of a predator preying on her prey” and gave her a sentence that would be fitting for a predatory rapist. Yet no one would or could ever have known that Stubblefield and [John Doe] had had sexual relations if she had not conveyed to his mother and brother what she believed to be his message to them, via facilitated communication that she conducted in their presence, that he and she were in love and had consummated their relationship. This is the action not of a sexual predator but of an honest and honorable woman in love. Even if she is mistaken in her beliefs about his intelligence and ability to communicate, it is undeniable that these beliefs are sincere and that she was neither reckless nor negligent in forming them. This ought to have been a mitigating, if not wholly exculpating, consideration in the sentencing.

Stubblefield was aware of the controversial nature of facilitated communication. She may have believed that the experts which determined it to be pseudoscience were mistaken — I suspect she genuinely did — but she also knew that others who had diligently attempted to learn the methods of F.C. had failed to communicate with John Doe. She knew that she was in a particular position of power over him, and that she had an interest in virtue of her own feelings, in his communicating particular things.

But more importantly, McMahan and Singer confuse self-conceptualizing as having good intentions with failing to engage in predatory behavior. They confuse a willingness to articulate one’s position with being honorable. If these characteristics were genuinely interchangeable, multitudes of paradigm instances of exploitation through grooming, and even through violence, would be mitigated or exculpated. How many victims of childhoood sexual abuse have been told that their assailant loved them?  How many cult-leaders have thought they were doing what was best for the souls of their followers? How many perpetrators of domestic violence believed they were doing what was best to keep their families as they should be?

Intending to do good is not in any way inconsistent with doing enormous harm.

[Update: An earlier version of this post used the victim’s initials rather than the pseudonym John Doe. I’ve removed his initials in an attempt to do a better job of respecting his privacy.]

The Quiet Obliteration of Women’s Autonomy – Trump Edition

The Washington Post broke a story today about remarks Donald Trump made in 2005 while accompanied by Billy Bush, then host of Access Hollywood. 

I want to point out how Trump and Bush’s remarks about women, and the way that newspapers are reporting on those remarks, subtly dissolve the autonomy of the women who are being commented on.

Part I – The Remarks: Below are a good portion of the remarks. You can also listen to them in the link above in the WaPo story. [Heads up: they contain expletives and objectifying descriptions of women.]

Read More »

Canadian domestic violence survivor goes public after replacement judge declares mistrial

Yesterday, Canadian public broadcaster the CBC published the story of Isabelle Raycroft, Canada’s latest high-profile victim of intimate partner violence.

Here’s the tl;dr: the trial judge wrote a decision convicting Raycroft’s husband of four counts of assault against her, then got sick and couldn’t deliver the verdict. A replacement judge was appointed to read the verdict and determine the sentence. Before sentencing, a delegation of “old boys” from the rural Ontario community in which the Raycrofts reside appeared before the court to attest to the good character of the convict. Having heard this testimony (but not the evidence that was presented at trial), the replacement judge declared a mistrial. The devastated complainant decided that the public needed to know what she’d gone through. She went to court to have the publication ban on the case waived, and then she went to the CBC.

The story is frustrating, astonishing and riveting, and provides yet more evidence (as if it were needed) that when it comes to sexual violence, the law is an ass. Read it here.

Law Professors on the Preponderance Standard in Title IX cases

A group of more than 90 law professors have signed on to a white paper regarding the preponderance of the evidence standard’s use in campus sexual misconduct cases. I recommend reading the entire document, but here’s a snippet:

The consistency of the 2011 DCL with civil rights legal doctrine means that, had the 2011 DCL indicated tolerance for other standards of proof in sexual violence cases, it would have approved treating sexual violence and harassment victims differently from all other victims of all other discrimination prohibited under our nation’s anti-discrimination civil rights laws, and done so without any justification for that differentiation. Because differential treatment by the government without justification is itself a form of discrimination, OCR making such an exception in a specific set of sexual harassment cases, but in no other civil rights matters under its jurisdiction, would have been incompatible with the agency’s mission to secure gender equality in education.

Judge hands down six-month sentence for sexual assault to avoid “severe impact” on assailant

The victim read a letter to her assailant regarding the impact this has had on her during the proceedings.

Via BuzzFeed:

One night in January 2015, two Stanford University graduate students biking across campus spotted a freshman thrusting his body on top of an unconscious, half-naked woman behind a dumpster. This March, a California jury found the former student, 20-year-old Brock Allen Turner, guilty of three counts of sexual assault. Turner faced a maximum of fourteen years in state prison. On Thursday, he was sentenced to six months in county jail and probation. The judge said he feared a longer sentence would have a “severe impact” on Turner, a champion swimmer who once aspired to swim in the Olympics — a detail repeatedly brought up during the trial.

On Thursday, Turner’s victim addressed him directly, detailing the severe impact his actions had on her — from the night she learned she had been assaulted by a stranger while unconscious, to the grueling trial during which Turner’s attorneys argued that she had eagerly consented.

The full letter the Stanford victim read to hear assailant describing the impact on her is posted at BuzzFeed. I was going to excerpt a quote, but the letter is so powerful and important, I just want to encourage you to read it in its entirety instead.

Philosophers on the gap between sexual assault law and morality

Philosophers weigh in at Quartz on the misalignment between sexual assault law and morality. Here’s Tim Kenyon (Waterloo):

“When you get a legal system that’s pathological in some sense, either because it’s unfair to people or it’s incomplete or re-victimizes victims, it’s particularly foreseeable that the law and the morality are going to come apart,” he says. “You’re going to see people looking for alternative ways to find legal or extra-legal remedies.”

Check out the whole article here.

Anthropology tackles sexual harassment

So much is so familiar.  But there are some good ideas we haven’t tried.  In particular:

Meeting registrants were required to agree to AAPA’s code of ethics, which forbids sexual harassment and discrimination, and many attendees sported ribbons with antidiscrimination slogans.

Really interestingly, their problems seem just like ours, despite very different numbers.  8 out of 10 of their board members are women, and the association’s members are 56% women.

 

For more, go here.

 

Response to AAUP report on Title IX from Faculty Against Rape

Faculty Against Rape has drafted a response to the AAUP’s draft report on Title IX to submit by the end of the comment period tomorrow, and they are accepting signatures from academics in support of the letter. The full letter is here, and the form to add your name is here.

Here’s a passage from the introduction:

As members of Faculty Against Rape (FAR), a group of more than 300 faculty and civil rights activists from across the U.S., we write to express grave concerns regarding the American Association of University Professor’s (AAUP) draft report on Title IX.  We started FAR in the summer of 2014 as an ad-hoc volunteer collective whose mission is to get more faculty involved in preventing sexual assault and sexual harassment and improving campus responses. FAR is also committed to protecting faculty who experience retaliation for doing so. Over the past two years, FAR has provided resources for faculty to learn how to best support survivors, tools for faculty who want to get more involved in reform efforts, and support for faculty who face retaliation. Collectively, our members have supported literally hundreds of survivors at campuses across the country. Many of them have endured significant retaliation from university administrations who want to protect the university brand, even at the cost of the safety and well-being of students. We have seen the crisis of campus sexual violence, and the nature of Title IX enforcement as practiced, often inadequately, across campuses in the United States, first-hand.

Our experiences, as members of educational communities involved in these issues on the ground, have made evident that Title IX enforcement at institutions of higher education is, indeed, a matter of pressing concern. However, if the AAUP seeks to adequately understand, and competently comment on this issue, it must take care to, at the very least, attend to the body of existing expert scholarship— including scholarship by some of its own members— on this topic. As it stands, we are troubled by much of the framing, content, unrepresentative nature of, and failures of accuracy within, the draft report.

The overall impression given by the report is that the Department of Education’s Office of Civil Rights is ‘overreaching’ in its mandated mission of providing guidance to universities and ‘abusing’ Title IX; this,  despite the fact that there is broad underreporting of campus sexual assault by universities. The American Association of University Women (AAUW) analyzed DOE data and found that 91% of colleges did not report any rapes in 2014, leading the AAUW to exclaim that “The data reported by the nation’s colleges simply defy reality and common sense,” given that they “don’t reflect campus climate surveys and academic research.”

While we would ordinarily join with the AAUP in resisting the corporatization of institutions of higher learning, we are deeply concerned that the AAUP’s analysis of this issue as it pertains to Title IX, by pitting student concerns for campus safety against faculty interests, reinforces the symptoms instead of addresses the problem. Students and faculty alike are rightfully alarmed by universities and colleges placing the protection of their reputation before the integrity of their campus communities — but these concerns ought to unite, rather than divide us. The AAUP is right to remind us that administrative overreach into the classroom may be driven by a misguided focus on public relations, but we should also acknowledge that it is this very feature of the contemporary university that victims of campus sexual misconduct have been decrying as they witness justice, safety, and prevention sacrificed time and again for the sake of the bottom line.

What’s Wrong with the AAUP’s Report on Title IX: Preponderance of the Evidence Standard Redux

I posted a couple of days ago about some of the problems with the AAUP’s recent report on Title IX. I think there are others, but for considerations of space, just mentioned two: one of which was the AAUP’s resistance to the preponderance of the evidence standard, the other was the AAUP’s confusion regarding the increase and manner of OCR investigations. At some point, I think it would be valuable to discuss some of those other issues (I’ll draw on a couple of points from this letter from the National Women’s Law Center below, but I encourage you to read it in full as it pertains to some of the other issues in the report as well), but first, more on the justification for the preponderance standard.

Brian Leiter wrote a reply to my post, taking issue with this passage:

But, more to the point, if Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.

I cited Jackson v. Birmingham Board of Education in the explanation of my thinking, and in an update on his post, Leiter writes, “that retaliation for reporting sex discrimination is actionable sex discrimination for purposes of Title IX does nothing to establish that a higher standard of proof to prevail on a sex discrimination claim is sex discrimination.” Leiter is right that, in itself, that retaliation in the context of Title IX constitutes sex discrimination says nothing about standards of proof, but I didn’t say that it did. What I did say is that I think the courts’ reasoning in the course of determining whether or not retaliation constitutes discrimination – i.e., how the court defined what it is for something to constitute “discrimination on the basis of sex” – does.

Here’s that language again (emphasis mine):

In all of these cases, we relied on the text of Title IX, which, subject to a list of narrow exceptions not at issue here, broadly prohibits a funding recipient from subjecting any person to “discrimination” “on the basis of sex.” 20 U. S. C. ß1681. Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subjected to differential treatment. See generally Olmstead v. L. C., 527 U. S. 581, 614 (1999) (KENNEDY, J., concurring in judgment) (the “normal definition of discrimination” is “differential treatment”); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682, n. 22 (1983) (discrimination means “less favorable” treatment). Moreover, retaliation is discrimination “on the basis of sex because” it is an intentional response to the nature of the complaint: an allegation of sex discrimination. . .

The import of the Jackson language quoted is not that the retaliation was a response to the person (Roderick Jackson) but to the claim (in Jackson’s case, a series of complaints about unequal treatment that he felt were prohibited by Title IX).  It can be analogized to campus responses to sexual assault cases in the following way: when a victim makes a complaint that s/he was sexually assaulted, under Title IX that is a claim of sex discrimination, because sexual assault is a severe form of sexual harassment, and sexual harassment has been confirmed by SCOTUS to be a form of sex discrimination.  Therefore, if the school responds to that claim using a process that requires a higher standard of proof than the standard of proof that the school uses for other claims, ones that do not implicate Title IX and do not allege sex discrimination, that is, in the words of the Court in Jackson, “differential treatment.”  So if a student made a complaint that s/he was the victim of harassment based on his/her race, the school would be required under Title VI to use a preponderance of the evidence standard.  If the school were still using “clear and convincing evidence” for sexual assault cases, this would mean that claims of sex discrimination (severe sexual harassment in the form of sexual assault) would be treated differently, and less favorably, by the school from claims of race discrimination (racial harassment).

Similarly, if one white, male, heterosexual student accused another white, male, heterosexual student of punching him in the face and the school used a preponderance of the evidence standard in its process for responding to that assault, but was still using “clear and convincing” in its process for sexual assault, that would be differential treatment based on the nature of the claim, where the claim alleging discrimination based on sex got “‘less favorable treatment” (see language from Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, n. 22, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) included in Jackson) than the claim not alleging discrimination based on sex.

The National Women’s Law Center (lead counsel in Jackson v. Birmingham Board of Education) seems to agree that parity with other claims justifies the use of the preponderance standard in Title IX claims: Given that Title IX was modeled after Title VI, and preponderance of the evidence is the standard used in claims brought under Title VI, it is also the standard that applies to Title IX claims. The preponderance standard is also used in litigation of claims under Title VII of the Civil Rights Act of 1964, regarding sex discrimination in employment. Thus, it is the correct standard for allegations of sexual harassment, including violence.” (If you doubt that courts have taken up this standard, note the footnotes to this passage in their letter.)

Likewise, Nancy Cantalupo, in the piece I linked to a few days ago, writes,

Allowing schools to adopt a criminalized standard of proof such as “clear and convincing” evidence or “beyond a reasonable doubt,” . . . would also create legal and administrative barriers for student survivors of gender-based violence that do not apply to the vast majority of comparable populations involved in civil or civil rights proceedings, all of which use the preponderance standard. To name just a few, these groups include: other students alleging other kinds of sex discrimination; students alleging discrimination based on other protected categories, like race or disability; gender-based violence survivors seeking protection orders in civil court; students alleging other forms of student misconduct; and students accused of sexual or any other misconduct who sue their schools in civil court. In reality the preponderance standard is used in the vast majority of cases, not only in internal disciplinary proceedings but also in other administrative or civil court proceedings and under other civil rights statutes that protect equality . . . Indeed, separating out sexual violence victims for different procedural treatment would enact a new kind of damaging “exceptionality [for] rape,” as Michelle Anderson discusses in her paper for the September 25 Conversation. Using anything more stringent than a preponderance standard would symbolize that we as a society are comfortable with giving one group of women and girls, as well as men and boys who are gender-minorities and victimized because of it, unequal treatment when compared to everyone else.

In a footnote on this passage, Cantalupo notes:

Research shows that the majority of higher education institutions had voluntarily adopted a preponderance of the evidence standard for all student conduct proceedings by the early 2000s. See Michelle J. Anderson, Sexual The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Assault, 84 B.U. L. Rev. 945, 1000 (2004); Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 122 tbl.6.12 (2002), http://www.hhd.org/sites/hhd.org/files/mso44.pdf  [http://perma.cc/9Z57-PHR5]. Therefore, using a different standard from the preponderance standard in cases involving sexual or other forms of gender-based violence would mean that student victims of gender-based violence would be less protected than students who are victimized by another student in any other way.

Now, Geoffrey Stone has argued against the preponderance standard as follows (emphasis mine):

To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy. For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.

To the extent that analogy between internal Title IX complaints at an educational institution and action in courts is apt (there is a substantive difference in that what happens in court is thereby public record), the analogy to civil action is far more apt than an analogy to criminal proceedings. In addition to the fact that in criminal cases it is the state, and not the alleged victim, who is party to the proceedings, as Stone writes, civil law adjudicated by a preponderance of the evidence standard provides relief for assault. Again, from the National Women’s Law Center:

The preponderance of the evidence standard is appropriate even in cases where there could be criminal sanctions for the defendant’s actions. For example, it is used in civil proceedings between two private parties, where—like a campus grievance proceeding for a complaint of sexual harassment—each party “has an extremely important, but nevertheless relatively equal, interest in the outcome.” This includes civil proceedings arising out of conduct that can also be criminal, but where there is no authority to impose criminal sanctions, such as a civil tort action for battery, robbery, or murder.

This goes, too, for civil cases regarding sexual violence. For instance, cases brought under California Civil Code Section 52.4, or Illinois’ Gender Violence Act.

Of course, Stone is right that expulsion may haunt a student. We should absolutely take that seriously, and I do. At the same time, let’s not forget how many students are expelled for infractions like plagiarism as compared to sexual assault; let’s not forget having been subject to sexual violence may haunt a victim; let’s not forget that being subject to sexual discrimination (including sexual harassment and assault) might, and in a number of cases has, destroyed victims’ chosen career prospects; let’s not forget that victims are often forced to transfer schools, or drop out; let’s not forget that victims have also been dragged through the nasty trenches of the internet, nor that some have been driven to suicide as a result. Moreover, let’s not forget that it is exactly these kinds of effects that educational institutions are legally obligated to address insofar as they impact one’s access to education; that is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”