No such thing as evidence of innocence in campus sexual assault hearings
If a student has been wrongly accused of sexual assault on their college campus, how are they supposed to prove their innocence?
I've asked a similar question to lawmakers and interested parties before — how is a student supposed to prove they obtained consent in a he said, she said situation? — but received no response.
One would think there might at least theoretically exist evidence that an encounter was consensual – outside of a videotape or recording, of course. Witnesses, for example, or subsequent messages between the two students.
And indeed, such evidence does exist in some situations, the problem is that college administrators either ignore such evidence or they twist said evidence to end up being used against the accused student who brought it up.
Take contact between the two parties after an alleged incident of sexual assault. Even if the accuser appears friendly toward the eventually accused, all they have to do is claim their messages didn't accurately portray their feelings and suddenly, those messages are used against the accused.
This occurred in the Emma Sulkowicz vs. Paul Nungesser case. After what Sulkowicz claimed was a brutal rape in which she was pinned, beaten and choked before being raped, she sent Nungesser numerous messages asking to hang out, even telling him she loved him. Nungesser tried to get those messages introduced as evidence during his Columbia University hearing, but was denied. Nungesser, who has since become the victim of a public campaign of defamation by his accuser, was exonerated anyway.
After Sulkowicz began a mattress-carrying performance art project and publicly identified Nungesser as her attacker despite confidentiality rules, Nungesser released the post-alleged-rape Facebook messages.
Sulkowicz responded to the released messages by claiming she sent them because she wanted to have a "talk" with Nungesser about the encounter. Some people still buy it.
A similar situation played out at Vassar College when Peter Yu introduced Facebook messages showing his accuser apologizing to him for the evening. She apologized for leading him on and said that she had "a wonderful time" with him. But a year later, when Yu produced these messages for the disciplinary panel, his accuser claimed they "did not correctly reflect her feelings" because she was in a state of "shock and disbelief" about the encounter.
The disciplinary committee bought her claim and expelled Yu.
One might be thinking that even if Facebook messages showing friendship and good feeling between the accused and accuser can be thrown out, witnesses would be able to provide some help. One would be wrong.
An accused student at Columbia University (who wishes to remain anonymous) who just had his lawsuit dismissed was never informed he could provide witness statements at his hearing. And even though he mentioned the existence of witnesses during the investigation, none were contacted.
Fine, one might think, at least if the accuser admits to lying about the sexual encounter, the accused has evidence in their favor, right?
At the University of Colorado, a student known only as John Doe in his lawsuit was accused of sexual assault by another student. That student, referred to as Jane Doe in the lawsuit, would later tell university investigators that she "may have stretched the truth" about the encounter because she was "pissed off" at John for being "just another douchy frat dude." She told police she wanted revenge against John.
But during the campus disciplinary hearing, the fact that Jane admitted her prior statements were lies meant she was subsequently being honest. So, the fact that she admitted to lying about being assaulted somehow became evidence that she really was assaulted.
This John Doe was found responsible for sexual assault and suspended for three terms.
It's already pretty well established that these campus panels treat the accused as guilty until proven innocent. But if exculpatory evidence such as Facebook messages, witness statements and even admissions of falsehood by accusers cannot prove innocence, then what can?