Kimberly Lau and Andrew Miltenberg have found themselves in a strange and widely unpopular segment of the legal system. They defend young, predominantly college age men who have been accused of sexual assault and punished by internal school review boards while never having been found guilty of the alleged crimes in a court of law or given the due process which should be provided to citizens accused of crimes. Given the current state of political correctness and the government’s none too subtle signals about Title IX violations, this makes for a tough row to hoe. The New York Observer has a profile of how they found themselves in this rather unique position and who they are helping.
If you feel like you’ve been reading more about campus rape of late, that’s because you have—most recently in a New York magazine cover story in September. The trend has been gathering steam since the U.S. Department of Education’s Office of Civil Rights sent a letter to colleges nationwide on April 4, 2011, mandating policy changes in the way schools handle sexual assault complaints, including a lowering of the burden of proof from “clear and convincing” evidence to a “preponderance” of evidence. Not surprisingly, there has been a marked increase in women coming forward with such complaints.
That doesn’t bother Mr. Miltenberg at all. The man is not pro-rape, for God’s sake. What does bother him is the way that many schools have handled the complaints.
Every single one of the men he’s representing, Mr. Miltenberg argues, has suffered egregious due process violations in closed-door college hearings. (He also believes that his clients are innocent of the charges against them.) And that is how he has found himself in the decidedly impolitic position of not only defending those accused of rape, but also suing on their behalf.
Miltenberg has a number of clients, but they all seem to experience a story with a common theme. They were accused of something truly awful, insisted they were innocent, but were tried and punished without ever having the benefit of a reasonable chance of defending themselves. You have to read the entire profile to get the full effect, but this is a glaring example:
“Yes, they’re male students,” she says. “But they’re also victims of a system they trusted, paid money to, thought would give them an education and help them on their way to establishing themselves in a career. That’s exactly what I did. And to see their futures being obliterated by a mix of false statements in the first instance but ultimately by the colleges themselves administering kangaroo courts … that’s highly offensive to me.” (In the Vassar case, the school refused to consider as exculpatory evidence Facebook messages from Mr. Yu’s accuser saying she’d “had a wonderful time” the night of the encounter.)
Miltenberg and Lau are providing an important service in an increasingly hostile environment with the deck stacked against them. They agree, as any sane person should, that sexual assault is a very real and all too common problem which deserves attention and the victims need help.
And yet… Good Golly Miss Molly I get tired of saying this but it bears repeating. If you are out with a guy and he’s trying to go further than you are comfortable with, you have every right to say “no.” If it’s non-verbal, you have every right to push away the offending hand trying to touch you in places you don’t wish to be touched. And if your date continues anyway and uses his physical advantage to do anything you are uncomfortable with, you should yell, hit, kick, scream, blow a rape whistle.. do anything to stop him and summon help. And if that fails and he succeeds in committing a heinous act upon your person, I will volunteer to be on the scene with a baseball bat and ensure he faces justice. If you pass out from too much booze or other intoxicants and awake to find You-Tube videos of him abusing you, the law and any actual gentleman will be on your side in your quest for justice.
But – and here’s where we get to the unpopular part of the discussion – there is another side to some of these stories. If you are making out with a persistent date who you’d rather not sleep with but decide that’s it’s easier to just get it over with and shut him up…
If you drink enough to be tipsy, though not black-out drunk -but are still actively participating in all the action and making decisions, no matter how questionable – and decide he’s probably a future Brad Pitt and go with the program, but wake up in the morning thinking, “Oh my God, I actually did it with this nerd?”…
If you perform any sort of mental gymnastics which lead you to make the call that you’re going to take the guy back to your room and engage in adult activities, but awake in the morning thinking it was a horrible idea…
You were not raped. You made a bad decision. Most of us make plenty of bad decisions when we launch ourselves onto the seas of adult life. (And believe it or not, there are plenty of guys who have woken up next to one of you and wondered what the heck they were thinking.) But that does not give you a free pass to assuage your bruised self-image by accusing someone of a crime which will shatter the rest of their lives when no court in the land would convict them, but a college board – paralyzed with fear of social repercussions – will grant you the revenge you desire. I will offer to play the part of the Frankenstein Monster in this case and tell you a harsh truth… you are the criminal in that case. You also bear the responsibility for your own decisions as an adult, just the same as your date does.
That’s why Miltenberg and Lau are inviting an important part of the ongoing discussion. It’s also why this entire Yes Means Yes meme is insanity. The correct and understood standard has always been No Means No. There has to be a “No,” provided that the ability to convincingly supply that “no” – be it verbal or physical – is evident to the reasonable observer. Forcing your will beyond that “no” is what defines the crime. These are matters which can only be justly served in a court of law. Colleges are not courts and they can not be allowed to replace them. The accused – if truly innocent – can not be made to meekly slink off with an expulsion and perpetual cloud hanging over their future on the say so of a date who wakes up with some regrets. But the direction things are taking on college campuses today invites precisely that outcome.