The woman that Joshua Strange met at
Auburn University will likely never forget him either. The incident Taranto
frames as an “intimate encounter” in his opinion article is a poor euphemism for what is described as a forcible
sodomy commenced when the victim was asleep. The alleged assault occurred in
the context of intimate partner violence that later included an allegation of
physical abuse. While the author suggests Strange was “cleared” by the criminal
justice system, the reality is that efforts to prosecute were not successful, which
does not necessarily equate to actual innocence.
For over two decades, Congress has acknowledged
the criminal justice system’s failure to adequately address violent crimes
against women. This led to the passage of the Violence Against Women Act (VAWA)
in 1994. This last year Congress reauthorized VAWA and expanded it to include
the Campus Sexual Violence Elimination Act (SaVE) Act, which establishes standards for how colleges and
universities address sexual assault, dating violence, domestic violence, and
stalking on campus. If anything, the story of Strange highlights the need for
this law, given the context of intimate partner violence and sexual assault.
Rather than a “war on men,” our government is earnestly seeking to address
violence against women by creating mechanisms that ensure the safety of abused
women.
In addition to VAWA, the federal civil
rights statute Title IX also addresses violence against women on campus. Title
IX has existed for over 40 years to protect against sex discrimination, which has
been interpreted to include sexual harassment and sexual violence. Taranto indirectly
addresses this law through the mention of “an April 2011 directive” or “Ms.
Ali’s directive,” which is the 2011 Title IX Guidance or “Dear
Colleague Letter.” The U.S. Department of Education issued this
latest guidance to clarify how Title IX obligates schools to address sexual
harassment and violence as supported by case law. Inspired by this guidance, advocates such as myself
successfully lobbied for some of its provisions to be included in the Campus
SaVE Act, making them federal law.
While Taranto wants readers to be
shocked at the due process afforded to Strange in his proceeding, he is making
an error the 2011 Title IX Guidance corrected: campus judicial process are separate
from the criminal process. Unlike a criminal trial, Strange faced a school hearing
for misconduct based on a violation of the student handbook. Such an accusation
simply does not warrant the same level of due process as one facing a felony
charge for a sex offense. Several courts have upheld minimal due process
standards in campus proceedings, such as the venerable Judge Posner in Osteen v. Henley (1993), who specifically
rejected the transformation of a campus proceeding into an adversarial justice
system.
For Title IX based proceedings, such as
those where sexual harassment or violence has been alleged, campus judicial
hearings must be “equitable.” That means even-handed due process for both
parties so they have the same notice, same opportunity to present witnesses, and
same ability to speak. So, for example, when the woman stated she was locked in
the room after the alleged sexual assault, Strange was also given an
opportunity to present his side of the story that he locked himself out of the
room. The campus officials could then come to their own conclusion regarding
who was more credible – perhaps finding that Strange had control of that
situation and limited the woman’s movements against her will. This would be a
reasonable given that the women’s testimony was found credible in a civil court
to award her a restraining order against Strange.
Rather that a travesty of justice, the
Strange case highlights the growing commitment by colleges, such as Auburn
University, to apply federal law that addresses violence against women. It is
important to remember that while this campus proceeding resulted in Strange’s
removal from Auburn, it does not prevent him from seeking an education
elsewhere nor would the result have even become public had Taranto not
published about the case. Rather this proceeding allowed the woman to continue
seeking her education on campus free from the risk of ongoing violence or abuse,
as is her and every student’s right under Title IX.
