Due Process is Rape Culture – More on Title IX Suit at the University of Tennessee

I have been able to look over a copy of the suit since the last post.  As I said previously, I am not qualified to comment on the merits of the complaint as a whole, but I will point out a couple of things I thought were interesting.  We will start with this passage;

Varsity athletes knew that they (not victims) would be fully supported by the UT athletic department and administration’s process and that the perpetrators and athletic department could deter and discourage victims from pursuing complaints by: having their lawyers depose female victims; subjecting victims to extensive discovery; cross-examining sexual assault victims in a full blown hearing before an administrative law judge

This is typical of much of the complaint.  It assigns motives without actually offering evidence to show motive.  Here the only actions which are being complained about with any specificity are actually laudatory.  UT requires there to be an investigation into sexual assault allegations as befits the seriousness of the charge.  Good for them!  Evidence is gathered, the parties state their case and it is put before an administrative law judge.  Plaintiff’s lawyer claims that this encourages rape and sexual assault.  Get that?  The knowledge that there is a rigorous process to sort out claims encourages people to commit crimes.  Obviously, the only way this could be rectified would be with an unfair, and less thorough process.  Simply put, the argument seems to be that due process = rape culture. 

The quoted passage also muddies some issues.  The statement, “having their lawyers depose female victims” has a whole bunch of base stealing in it.  First I am not aware of a university lawyer deposing anyone as part of this process.  I believe it is the defendant’s lawyer who does that.  Secondly, it uses the word “victim” which assumes facts not in evidence at the point a deposition is taken.  Indeed that is the whole point of taking a deposition; to figure out who, if anyone, is the victim.  And lastly, it uses the word “female” when victims can be of either sex.

And that is a key point.  The same rules apply whether the accuser is a man or a woman and whether the accused is a man or a woman, so you really can’t stuff this under Title IX.  The complaint more or less admits that point by also making an equal protection argument rather than just a Title IX claim on this particular issue by stating that the process favors the defendants, whatever sex they might be.  Perhaps that is so and it is a flaw in the process. The complaint is not clear enough for that to be determined.  But  it still lists the adjudication process as being part of the hostile environment.  I think it shows what the true aim of the lawsuit is, and to what extent the lawyer was willing to contort himself in order to shoehorn it in.

The complaint is also larded up pretty good.  It lists everything from underage drinking incidents where a student had a fake ID, to a fight during an intramural basketball game, to the fact that the rapper Lil’ John was invited to speak to some of the sports teams all as evidence of the promotion of “rape culture.” Every incident where an athlete got into trouble, whether they were later exonerated or not, or whether it involved anything of a sexual nature or not, is listed.  It also complains that athletes share the same apartment building with females.  But the NCAA outlawed athletic dorms in 1996 and we all know a lawsuit would not be long coming if women were not allowed the same access to housing as men.  I guess UT could just switch housing back and forth based on who won the last lawsuit.  That is more or less how everything is run in the country now anyway.

The complaint also states that no punishment has been given in any of these cases, but in all of the cases which I have recent memory of the athletes, even ones eventually cleared, have been suspended from their teams immediately upon the university taking up the complaint.  Some have been reinstated once they were cleared and others have transferred out.  A few have been punished in the court system, but the complaint even lists the fact that there were some plea deals as also being evidence of a hostile environment when that is completely beyond UT’s control and is, at any rate, unfortunately commonplace these days.

As a non-lawyer I also have trouble understanding how the plaintiffs would have any standing to bring a complaint of this nature when no official body of any sort has found that they were actually assaulted.  It seems to me that at some point, despite what the plaintiffs (or at least their lawyer) clearly want, there must be a determination of facts.  Perhaps the trial judge will do it in this trial.  But if you are claiming that there is a hostile environment which encourages rape then at some point I think it would be incumbent upon you to show that a rape actually occurred as a result of that environment.  If I had to bet I would say that at least one of the plaintiffs was actually assaulted as claimed, but we don’t punish people based on our gut instincts.  We punish them based on facts.

And we must remember that what they are asking for would also create a hostile environment where presumably all assault claims are assumed to be true, and rappers like Lil’ John would have their music and presence banned from all campus activities.  While aesthetically it would please me to see that happen, I prefer not to give up my 1st Amendment, or due process rights just to listen to less irritating music.  Although I admit that in the case of Lil’ John it is a near thing.

UT seems to be ready to put up a vigorous defense.  This is evidenced by the fact that they have brought in outside counsel.  From what I have seen thus far I don’t think UT’s process is inherently unfair, and seems to be much more thorough than those at other universities.  If you are dead set on having a university handle these sorts of claims rather than an actual court then you could certainly do a helluva lot worse.  But even if the process is ultimately found to be acceptable by the courts, UT will still have to show that they followed that process in a scrupulous fashion without regard to whether a student was male, or female, or an athlete.  Like all suits of this sort there will be many areas where they could have stumbled along the way even if they had only the best of intentions, and they will pay a price if it turns out that they did.  And they should.  There will also likely be people within the university who believe as the plaintiff’s lawyer believes so there will be dissension in the ranks.

But attaching these other agenda items to what amounts to a due process claim does these women a disservice and would only serve to make campuses more hostile places if they were to be adopted.  Also, please keep in mind that my comments are only addressed towards the political aspect of this.  I truly hope with all of my heart that these women find justice if they were injured by either UT or their alleged assailants.  I hope they find peace if they cannot find justice.  And finally, I hope they do not deny justice to others if they can find neither.

This entry was posted in Uncategorized. Bookmark the permalink.