AMHERST’S VERSION OF KAFKA’S ‘THE TRIAL’
Kafka was born too early to write about Amherst College. At campus hearings on claims of sexual assault, procedures are relentlessly stacked again males and evidence of innocence doesn’t count. Amherst expelled a student for committing rape—despite text messages from the accuser, sent immediately after the alleged assault, (1) telling one student that she had initiated the sexual contact with the student she later accused (her roommate’s boyfriend); (2) inviting another student to her room for a sexual liaison minutes after she was allegedly raped.
Amherst, on grounds that the accused student (who, per college policy, had no attorney) didn’t discover the text messages until it was too late, has allowed the rape finding to stand, even though the college’s decision relied on the accuser’s credibility (which is now non-existent). Amherst faces a due-process lawsuit in the case. You can read the complaint here.
A Goal of Empowering Victims
The expelled student’s complaint begins by noting the hostile campus attitude toward due process—both from pressure from the Education Department’s Office of Civil Rights, and because of a highly-publicized 2012 article from a student and self-described “survivor” who claimed that the college mistreated her. (Wendy Kaminer summarized the case in The Atlantic.) The outcry prompted Amherst to cancel classes for a day to discuss the issue, led to the forced resignation of the college’s sexual assault coordinator, and caused Amherst to change its sexual assault adjudication procedures to focus on “empowering victims,” rather than on, say, pursuing fairness and justice in its hearings.
These procedures, unsurprisingly, are wildly one-sided. Amherst adopted an “affirmative consent” standard; its policies do not explain how an accused student can prove he obtained this consent short of video-taping any sexual encounter. Regarding alcohol, the school deems it important that “anyone engaging in sexual activity be aware of the other person’s level of intoxication.” (How this should be done, Amherst doesn’t say.) Awareness, the college adds, might not even be enough, since “an individual may experience a blackout state in which he/she/they appear to be giving consent, but do not actually have conscious awareness or the ability to consent. How an accused student is supposed to know that someone appearing to give consent is actually in a “blackout state” Amherst, again, doesn’t say.
An Attorney with No Role
Once the complaint is filed, an investigator, who lacks subpoena power, interviews the accuser and the accused student; beyond that, the college promises only that the investigator will make a “good faith effort” to speak to relevant witnesses, and will “try” to obtain relevant physical or medical evidence. If the investigator’s “good faith” effort doesn’t track down relevant witnesses, the policy presumes that the accused student won’t be able to call those witnesses before the hearing.
“Attorneys cannot participate in the Hearing Board process” at Amherst (although, the college helpfully notes, the accused student can hire an attorney—at his own expense—and have the attorney present on campus the day of the hearing, perhaps for a very expensive form of virtual, moral support). The attorney-less accused student does receive an “advisor” from the campus community, but this advisor “is not an advocate for the student.”
Amherst does not permit theaccused student to directly cross-examine his accuser; he can only submit questions to the panel chair, who may ask or reject the questions as the chair chooses. Effective cross-examination under such circumstances is all but impossible—even more so since the accuser is allowed to write responses, rather than respond to questions orally. Any guilty finding is “permanently noted on the student’s record.”
Ever Leaning Toward Guilt
Panel members, who are drawn from the Five Colleges consortium (Mount Holyoke, Amherst, Hampshire, and Smith Colleges, and the University of Massachusetts at Amherst), receive annual “training regarding, the dynamics of sexual misconduct, the factors relevant to a determination of credibility, the appropriate manner in which to receive and evaluate sensitive information, the manner of deliberation, and the application of the preponderance of the evidence standard.”
Amherst doesn’t reveal what this training entails (recall that the only school whose panel training did become public, Stanford, used blatantly guilt-presuming training). Panelists come not from the general student body or even faculty but from the world of student life or institutional diversity, areas likely to tilt toward a guilt-presuming ideology even amidst the consortium’s politically correct mindset.
Panel members in this case included two student life officials (one from Mt. Holyoke, the other from Hampshire) and Eric Hamako, whose Ph.D. in “Social Justice Education” produced a dissertation focused incorporating “stronger anti-racist frameworks into those educational efforts.” (Hamako, who then worked for Smith, could not be reached for comment; the other two administrators did not respond to a request for comment.)
This was not a panel, in short, that seemed likely to go out of its way to critically examine a rape accuser’s allegation, or to stand up for due process, particularly given the ideological climate at Amherst in the 2013-2014 academic year. Additionally, since all panelists were administrators (like Amherst’s former sexual assault coordinator), they lacked the protections of tenure if they made an unpopular decision.
Alcohol and Activism
The incident dated from the early morning hours of February 5, 2012, when the accused student (who filed the suit pseudonymously, as John Doe) was a sophomore. After a night of heavy drinking by Doe, he accompanied the accusing student (who I’ll call AS) back to her room, where she performed oral sex on him. (Doe had no recollection of the sexual encounter, a claim that even Amherst’s tribunal found “credible.”) When news of her having hooked up with her roommate’s boyfriend got around, a former friend recalled that AS (unsurprisingly) “lost her group of friends.”
AS’s new group of friends, much like Rolling Stone’s “Jackie” in the UVA case, came from campus victims’ rights circles. AS first mentioned the alleged assault in a column from an activist campus website to which she regularly contributes and which reflected the viewpoint of the most extreme campus victims’ rights advocates—though the thrust of the column focused on her friends (unsurprisingly) turning on her after the hookup.
AS also was friendly with a leading anti-due process activist on campus, Liya Rechtman, to whom Doe had reached out after publication of AS’s column, to ask if he could have in any way mistreated AS. Rechtman claimed that this conversation amounted to a confession, an interpretation even Amherst’s investigator said left her “confused.”
Twenty-one months after hooking up with her roommate’s boyfriend, AS filed a claim of sexual assault. She did not go to the police, and of course had not sought medical attention after the alleged attack. But she did claim to have one contemporaneous piece of evidence that the attack traumatized her. She told the college, she asked a friend to come over and spend the night with her after her encounter with Doe. No evidence exists that Amherst asked her to identify this friend, who did not testify in her hearing.
As it turned out, the case would be the first under Amherst’s new, guilt-presuming policies. While the accuser waited 21 months to file her charges, Doe received ten days before he met with the investigator; thirty-eight days after Doe was notified of the charges, the disciplinary board decided to expel him.
The two sides’ contrasting advisors reflected Amherst’s warped ideological climate on sexual assault issues. Though technically the advisor “is not an advocate for the student,” AS’s advisor clearly did sympathize with her. Rhonda Cobham-Sander, a tenured professor of Black Studies and English who specializes in post-colonial literary theory, was an influential figure on campus. Amherst’s first diversity czar, she delivered a victims’ rights-oriented address after the 2012 sexual assault controversy.
Doe’s advisor, on the other hand, was an Amherst administrator (who lacked tenure protections) named Torin Moore, whose academic training came not in the law or in anything related to civil liberties but instead in “social justice education.” Moore’s performance was so lackluster that Doe eventually would sue him. Neither Moore nor Cobham-Sander responded to requests for comment about whether they were aware of the full scope of evidence in the case.
The college’s hired investigator, Allyson Kurker, interviewed most of the witnesses in one day; Kurker did not respond to a request for comment about whether she was satisfied her inquiry uncovered sufficient evidence. An attack that AS initially described as wholly non-consensual came to be seen as consensual before changing during a “break” in the oral sex. “I can’t say it was clear to me” when the assault allegedly became non-consensual, Kurker admitted in the hearing. (You can read the hearing transcript here.)
Once the hearing began, AS repeatedly presented herself as too traumatized to articulate her thoughts verbally. (She had no such problem, according to Kurker’s report, when the investigator asked her questions.) Asked whether the two went to her room voluntarily to hook up, AS replied, “Yes. Well—although in would like to say that I did feel some—I did like well feel like well some—I did . . . I did like well feel like well some like . . . well . . . some like . . . like . . . some like well pressure to do so.”
Panel member Hamako wondered about this “pressure,” which AS hadn’t previously mentioned, yielding this response: “So as we were making out in the common room, so some of the students there, so I think, so I think, so I think, [another student] included, were just like, well, chanting like well, things about me. Like, like, like, like, I mean, like, like, I mean, like, I mean like this, I mean like, I mean like, I mean like slut, and like that kind of thing. And they also like told us, get a room, so, yeah.” How that reaction (even if accurate) could be held against Doe was left unclear, since Hamako didn’t follow up.
I Didn’t, I Didn’t, I Didn’t
In perhaps the critical section of the hearing, when a panel member wanted to know what AS did after the alleged assault, she responded, “So after he like walked out, I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . .” On cue, the panel then allowed AS to type a response—an option that AS repeatedly pursued during the hearing. In her written response, the accuser claimed that after Doe left her room, she felt “very alone and confused,” so texted a friend to come over and spend the night with her.
In fact, as Doe’s attorneys later would discover, AS had texted two people after the hookup—a friend, and a possible paramour. Even before hooking up with Doe, AS had texted the other male student, telling him, “I mean I happen to have my room to myself this weekend, if you wanted to come over and entertain me.” After she finished with Doe, AS resumed flirtatious texting with the male student, who came to her room and spent the night with her. He found her “friendly, flirtatious, and spirited,” and not “anxious, stressed, depressed, or otherwise in distress.” You can read these text messages here.
Just after Doe left her room, AS also had (as she told the disciplinary panel) texted a friend. But (contrary to what she told the disciplinary panel) she didn’t invite the friend over to her room. Instead, she informed the friend, “Ohmygod I jus did something so fuckig stupid.” Coarse language from her in subsequent texts implied an awareness that she had initiated sexual contact with the student she later accused of rape. AS was upset in these messages—but not from being raped.
Rather, she worried (not unreasonably) about the fallout of a sexual liaison with the boyfriend of her roommate, who “would literally never speak to me again” if she found out. AS continued texting her friend after the male student arrived; she described her attitude toward her guest: “Like, hot girl in a slutty dress. Make. Your. Move. YEAH.” At 5am, she sent another text to the friend indicating that some sort of sexual liaison had occurred with her male visitor. You can read these text messages here; the critical messages are on pp. 6-8.
AS mentioned none of these exchanges to the panel. But since Amherst, like all colleges, lacks subpoena power, it had no way to obtain text messages from the night of the alleged assault. In a campus climate predisposed to believe all but the most non-credible accusers (and even, sometimes, the wholly non-credible, as the UVA case demonstrated), the panel didn’t probe too much. After AS’s “so I didn’t” non-response, panel members gently turned to questions about how knowledge of her hookup with her roommate’s boyfriend affected her relationship with their common friends. “They all felt they had to side with [the roommate] and stop speaking to me,” AS complained.
Despite an accuser who offered borderline non-coherent responses that subtly expanded on her initial story, the panel ultimately accepted her credibility. It ruled that while Doe likely was “blacked out” during the oral sex, “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.” Since AS said she withdrew consent at some point during the sexual act, and since Doe couldn’t challenge that recollection, the panel was at least 50.01 percent inclined to believe the accuser’s tale.
(The panel members offered no explanation as to why or how they reached this decision.) The panel recommended immediate expulsion for Doe. For good measure, panel members also urged him (but not, it seems, AS) to obtain alcohol counseling. You can read the panel’s thread-bare decision here.
Amherst’s case depended entirely on AS’s credibility. During the spring 2014 semester, Doe hired an attorney—who managed to discover the text messages quoted above, messages that all but eviscerated AS’s credibility. But according to the complaint, even when confronted with this new—and transparently exculpatory—evidence, Amherst declined to reopen the case.
Once again: this is a case in which an accuser (to put it charitably) misrepresented written evidence vital to her credibility, and this same material, her words, showed—if anything—that she initiated sexual contact against a student who even Amherst’s panel described as “blacked out.” And yet, according to Amherst, AS is a sexual assault “survivor.”