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Blog and Media Roundup - Tuesday, January 12, 2015; News Roundup
Topic Started: Jan 12 2016, 04:58 AM (197 Views)
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NC lawyer who fights for the wrongfully convicted goes before disciplinary panel

Panel rejects prosecutors' request for no evidentiary hearing

Wrongfully convicted turn out to support their supporter

Prosecutors allege professional misconduct

By Anne Blythe
ablythe@newsobserver.com


A three-member N.C. State Bar panel rejected a request from prosecutors Monday to find Christine Mumma, head of the N.C. Center on Actual Innocence, guilty of professional misconduct without a full hearing on the allegations.

Mumma, an advocate for the falsely accused, was investigating claims of innocence by a wrongfully convicted man when she took the actions that resulted in the disciplinary hearing expected to last through the week.

The bar, which oversees lawyers in this state, contends that Mumma used “methods of obtaining evidence that violate the legal rights of a third person” while investigating the claims of a man who was incarcerated for more than three decades for a crime he did not commit.

Attorneys representing Mumma argue that any missteps their client might have made while investigating the innocence claims of Joseph Sledge were motivated solely by her interest in freeing a wrongfully convicted man.

Sledge, a septuagenarian who was wrongfully convicted of a 1976 double-homicide and imprisoned for 36 years, was declared innocent in January 2015 by a three-judge panel that considered evidence Mumma had helped gather.

Sledge was at the hearing on Monday afternoon to support Mumma.

“It’s a misunderstanding,” Sledge said. “Truly that’s all this is.”

Sledge might still be in prison, her team of attorneys contends, had it not been for Mumma’s initial interest in investigating the claims of innocence and her zealous persistence in trying to get the case before a Bladen County judge or the N.C. Innocence Inquiry Commission.

In a five-page complaint made public in May, the State Bar took issue with the way Mumma, a North Carolina lawyer for 16 years and The News & Observer’s 2007 Tar Heel of the Year, had a water bottle tested for DNA evidence during her investigation into Sledge’s claims of innocence.

The Bar contends Mumma used “methods of obtaining evidence that violate the legal rights of a third person,” in violation of professional conduct rules, in obtaining the DNA testing of that bottle without permission of the woman from whose home it was taken.

Previous clients’ support

In addition to Sledge, others who had been exonerated in high-profile wrongful conviction cases were at the hearing, too.

Dwayne Allen Dail, who served 18 years in a state prison for a 1987 rape he did not commit, told media crews he thought the case was brought to try to slow Mumma down in her quest to free the wrongfully convicted from prison.

Willie Grimes, declared innocent of a 1987 rape conviction, sat quietly in the back of the courtroom to show support for a woman whose interest in his case helped free him.

Larry Lamb, who was wrongfully imprisoned for more than 20 years for the murder of a Duplin County bootlegger, traveled from Massachusetts to show his support.

Gregory Taylor, who spent 17 years wrongfully incarcerated before becoming the first freed by North Carolina’s unique Innocence Inquiry Commission, was at the hearing to show support, too.

I. Beverly Lake, a former chief justice of the N.C. Supreme Court and an ardent supporter of Mumma since he had a heavy hand in the establishment of the Innocence Commission, also was among the dozens in the crowd to support the attorney fighting the bar allegations.

Water bottle controversy

The bar complaint also alleges that Mumma “engaged in conduct involving dishonesty, fraud, deceit or misrepresentation,” also a violation of a professional conduct rule.

At one point during her investigation, Mumma considered two brothers possible suspects in the 1976 stabbing deaths of Josephine and Aileen Davis, a mother and daughter who lived together in Bladen County.

The Bar complaint contends that, in October 2013, Mumma visited the home of the brothers’ sister, hoping to obtain a DNA sample that could either point to the men as suspects or eliminate them.

During that visit, the woman did not consent to Mumma’s DNA request. As she was leaving, Mumma picked up a water bottle that was not hers. But Jim Cooney, one of the high-profile defense attorneys representing Mumma, said on Monday that Mumma had inadvertently taken the bottle.

“There is no allegation that Ms. Mumma went to the house to steal the water bottle,” Cooney said. “Mistakenly taking something doesn’t violate the rights of a third person.”

Marie Andrus, the woman whom state bar prosecutors contend had her rights violated, testified at the hearing Monday that she had forgiven Mumma.

Andrus said she has had a long simmering distrust of law enforcement and the justice system, and when Mumma came to her house that was her overwhelming sense.
‘Good outweighs the bad’

Since then, Andrus has met with Mumma and looked up the work the attorney has done and has no issues with her.

“I don’t know of anyone who is human who hasn’t made some kind of mistake in some kind of way, if you call that a mistake,” Andrus said. “The good outweighs the bad.”

The hearing to determine whether Mumma violated the bar’s professional conduct code is expected to last through Friday.
Marie Andrus: Mumma was doing a great service

Anne Blythe: 919-836-4948, @AnneBlythe1

Read more here: http://www.newsobserver.com/news/local/crime/article54115055.html#storylink=cpy
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State Bar attorney: Innocence advocate violated woman's privacy

Posted 4:01 a.m. yesterday
Updated 7:04 p.m. yesterday


Raleigh, N.C. — A prominent advocate for inmates wrongly convicted of crimes crossed an ethical line when she violated a woman's privacy rights to help one of her clients, an attorney for the North Carolina State Bar said Monday.

Christine Mumma, director of the North Carolina Center on Actual Innocence, faces a full week of hearings before a three-person disciplinary panel of the State Bar on whether she violated the rules of professional conduct in the case of Joseph Sledge.

Sledge served almost 40 years for a double murder he didn't commit before he was exonerated and released from prison last January.

The State Bar's complaint alleges that Mumma was seeking a DNA sample from the family of a possible suspect in the Sledge case when, in October 2013, she took a water bottle from the home of Marie Andrus, the suspect's sister, and later had it tested for DNA.

"This case is not about justice for Mr. Sledge," Leanor Hodge, an attorney for the State Bar, said Monday. "This case is about the defendant's misconduct."

image: http://wwwcache.wral.com/asset/news/local/2010/04/02/7349607/13660096-1433875852-120x90.jpg
Court and legal WRAL sues over denial of cameras in State Bar hearing

Mumma has said that she didn't immediately realize the water bottle wasn't hers, but Hodge said that "she was steps away from the home" and could have returned the bottle instead of keeping it and having DNA tests conducted.

"To suggest that the defendant didn't know her conduct was wrong borders on the absurd," Hodge said.

Jim Cooney, a Charlotte lawyer representing Mumma, said she never intended to steal anything from Andrus' home and equated her actions to mistakenly taking someone else's pen after a meeting.

"No reasonable attorney would conclude that you committed a crime," Cooney said.

Hodge responded by comparing Mumma's actions to opening someone else's mail.

"She took the water bottle and sent it for testing because she wanted to see what was inside," she said.

Andrus testified during the hearing that she didn't even know the water bottle was gone until state authorities contacted her about it. She said she remains very protective of her brothers even though they are dead, but she has forgiven Mumma and doesn't believe her intentions were wrong.

"I realized the fact that Miss Mumma wasn't really trying to do anything to hurt me or my family. She was actually doing a great service," Andrus said. "I don't know anyone who is human who hasn't made some kind of mistake. The good outweighs the bad."

Cooney also disputed Hodge's assertion that Sledge's innocence was completely separate from the case against Mumma.

"Without this DNA, Ms. Mumma could not have successfully attempted to free him," Cooney said. "She did what we expect a zealous and an effective advocate to do."

Mumma has noted that she was the one to inform both the North Carolina Innocence Inquiry Commission and the local district attorney about her possession of the water bottle and the test – a move that ultimately resulted in the State Bar complaint against her.

The disciplinary panel will hear testimony for and against Mumma through the course of the week on three rules violations: that she used methods of evidence to violate the legal rights of a third party; that she acted in a way that was dishonest or deceitful; and that she acted in a way that violated the administration of justice.

Sledge and several other wrongly convicted men Mumma helped exonerate – Greg Taylor, Dwayne Dail, Larry Lamb and Willie Grimes – were at the hearing Monday. The five men spent more than 120 years combined behind bars for crimes they didn't commit.

"Chris is awesome. She's a lady of integrity," said Lamb, who spent more than 20 years in prison for a Bladen County murder before being cleared in 2013.

Dail, who served 18 years in prison for a 1987 rape before being released in 2007, said he and others believe the charges against her are bogus.

"Chris Mumma has had a target on her back since she started this work," Dail said. "Out of all of the years that Sledge was in prison wrongfully, Chris Mumma is the only one being held in any kind of way responsible. and I just think that's ridiculous."

"She's worked very hard for reform and very hard for exonerations, and along the way, I believe, certain people might be resenting that, and that's why we're all here today," said Taylor, who spent 17 years in prison for a Raleigh murder before becoming the first person exonerated by the Innocence Inquiry Commission and a three-judge panel in 2010.

"They may be trying to stop her from doing what she does, a job that she loves doing," Lamb said.

The disciplinary panel is expected to decide on Mumma's fate by Friday. If the State Bar finds Mumma violated its rules, it can issue discipline up to disbarment

Read more at http://www.wral.com/state-bar-attorney-innocence-advocate-violated-woman-s-privacy/15226180/#SkcvJ6iYY1PSih1k.99
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WRAL sues over denial of cameras in State Bar hearing

Posted 3:44 p.m. yesterday
Updated 3:47 p.m. yesterday

Raleigh, N.C. — Capitol Broadcasting Co., the parent company of WRAL-TV and WRAL.com, filed suit Monday to protest the North Carolina State Bar's refusal to allow video cameras into a disciplinary hearing of a prominent advocate for the wrongly convicted and to demand that the hearing be suspended until the dispute over cameras and live coverage is settled.

Christine Mumma, director of the North Carolina Center on Actual Innocence, faces a hearing before a three-person disciplinary panel of the State Bar on whether she violated the rules of professional conduct in the case of Joseph Sledge.

Sledge served almost 40 years for a double murder he didn't commit before he was exonerated and released from prison last January.

The State Bar's complaint alleges that Mumma was seeking a DNA sample from the family of a possible suspect in the Sledge case when, in October 2013, she took a water bottle from the home of Marie Andrus, the suspect's sister, and later had it tested for DNA.

WRAL News requested permission last Wednesday to have a video camera in the hearing room to provide live coverage of Mumma's hearing online, but Fred Morelock, a Raleigh attorney chairing the disciplinary panel refused the request.

"I realize that this case has some public interest, however I feel that the hearing will benefit from the absence of live coverage. Only still (and quiet) photography will be allowed," Morelock wrote in an email.

He denied a formal motion to allow cameras in the courtroom on Monday.

Capitol Broadcasting maintains the disciplinary hearing is subject to state open meetings laws, so video coverage should be allowed.

The company also is seeking a temporary restraining order to halt the disciplinary hearing until its lawsuit is addressed.

Read more at http://www.wral.com/wral-sues-over-denial-of-cameras-in-state-bar-hearing/15227213/#ioQgvoTADWd6rjcU.99
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http://thehill.com/blogs/ballot-box/dem-primaries/265515-sanders-law-enforcement-should-handle-campus-rape

January 11, 2016, 11:01 pm
Sanders: Law enforcement should handle campus rape
By Ben Kamisar

Bernie Sanders called for all rape accusations on college campuses to be handled through law enforcement, a controversial stance that puts him at odds with many advocates.

Decrying rape and sexual assault on campuses as an "epidemic," he said schools must not try to handle the issue internally.

"Rape and assault is rape or assault whether it takes place on a campus or a dark street," he said Monday at the Black and Brown Presidential Forum in Iowa.

"If a student rapes another student it has got to be understood as a very serious crime, it has to get outside of the school and have a police investigation and that has to take place."

He added that too many schools are treating it as a "student issue" instead of referring accusations to law enforcement, and added that victims shouldn't have to be in classes with their rapists.

But the idea of mandatory law enforcement referral has long been met by with skepticism by advocates trying to stop sexual assaults on college campuses. Ninety percent of survivors polled by the National Alliance to End Sexual Violence and Know Your IX said they wanted to have the choice of whether to report of to whom, while 80 percent agreed that mandatory police reporting could "have a chilling effect on reporting."

Sanders' campaign did not respond to requests to clarify the senator's comments.
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http://themedium.ca/opinion/the-politics-of-naming-a-victim

The politics of naming a victim

The impeachment of UTSU VP campus life was trial by Facebook
Author Maria Iqbal
Date published Jan 11, 2016

What’s in a name? A lot, apparently, when it comes to sexual assault.

Over the winter break, we published a breaking news story about how UTSU VP campus life had been publicly accused of sexual assault—or attempted assault, depending on how the allegations are understood.

The accusations were made on Facebook by the victim of the alleged assault. In a lengthy post that also contained screenshots of a private chat with VP campus life Askhan Bansal, the author called on people to share the post “widely”. The post was later taken down for unknown reasons, but its content remains available on Reddit at press time.

After we published our story and posted it to The Medium’s Facebook page, the student who made the allegations commented on our post that we should have asked permission to use the student’s name.

To be clear, at the time when the article was published, the student’s original Facebook allegations were visible to the public with the author’s name. It was a no-brainer that the post was indeed a public one and its contents were public information.

Indeed, when UTSU issued a statement the same day calling on its board of directors to impeach Bansal, the union referred to the accusations of sexual assault against the VP as a “public allegation”.

In other words, it was understood that the contents of the Facebook post are public information. Whether that changes after the post was removed from Facebook, I’m dubious of, since it had been viewed enough to get a large organization to make such a strong statement in response.

As examined in our cover story this week, UTSU proceeded to impeach Bansal in a decisive vote at its board meeting. The decision came without an investigation into the truth of the allegations. According to UTSU VP external Jasmine Denike, UTSU is “not a court” and they don’t have “a right to conduct” an investigation.

UTSU may very well not be a court, but I do believe they had the onus of verifying the claims before taking action.

Denike claims that UTSU does not accuse Bansal of the allegations, but made their decision out of a desire to “stand by the mandate of the union” and “make sure that students remembered that the union is a safe space”. So it seems that the reputation of the union took precedence to giving Bansal the benefit of being presumed innocent until proven guilty.

In all fairness, UTSU has mentioned that the impeachment comes as a result of multiple issues with the VP, but it’s clear from the union’s public statements that the recent Facebook allegations were a major push towards the decision. Even Denike doesn’t say that Bansal would have definitely been impeached if it weren’t for the allegations.

So for Bansal, his name has been published in multiple articles about the unproven allegations along with his photo. But his accuser remains unnamed for the most part.

Taking a look at practices in the media on naming victims, it seems that it’s generally the case that when it comes to sexual assault, the media is either banned from naming the accuser or doesn’t name them out of ethical considerations for the individual’s well being.

A 2014 article in the Toronto Star entitled “Should sexual assault victims still be kept anonymous?” says regarding two people charged with sexual assault, “Their names and photos have been widely circulated since the charges were first laid years ago, but outside of that courtroom, no one knows the identity of the accusers.

“And because of a publication ban on their identities, most people never will.”

There is some disagreement on this practice, including the argument that the more we name victims of sexual assault, the better we can address the stigma associated with it. The article continues, “With only one name and face to report in the media, criminal defence lawyers say the publication bans impede the presumption of innocence because their clients get convicted in the court of public opinion before their trial ever starts.”

Hmm. Sounds like Bansal’s case was a trial by Facebook.

For our part, although we’ve already named the accuser in our first article on the issue, the decision not to name her again in this week’s story was a difficult one. When we reached out to the student for comment on the story, the student specifically requested that her name not be used out of consideration for her health and wellbeing.

If we wanted our coverage to be balanced in that we presumed the innocence of both parties involved, it became apparent that we should give due consideration to the potential stigma and trauma that could result from continuing to name the accuser should the allegations prove to be true. So we didn’t publish the name in this week’s article. At the end of the day, it came down to a desire not to presume guilt for either party.

It remains a fact that Bansal’s name has already been widely propagated in reference to the allegations and that he’s lost his position largely because of them. How is it fair to presume the innocence of the accuser and not giving the same benefit to the accused?

Whatever actually happened remains unclear, but what has come to light is that there was a dramatic imbalance of justice in this case that led to the presumption of Bansal’s guilt rather than innocence.

I expected better of UTSU.

Yours,
Maria Iqbal
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Quote:
 
http://www.nytimes.com/reuters/2016/01/11/us/politics/11reuters-louisiana-governor-speech.html

Louisiana Governor Pledges to Expand Medicaid in Inaugural Address


Louisiana Governor John Bel Edwards laid out his agenda during his inaugural address on Monday, pledging to expand Medicaid, enact education reforms, and find long-term solutions to the state's large budget deficit.

Edwards, the first Democrat to hold the office of governor in Louisiana since 2008, said he planned to begin accepting federal funding on Tuesday to expand healthcare to residents through the Affordable Care Act, also known as Obamacare.

"Your tax dollars should not be going to one of the 30 other states that have expanded Medicaid when we are one of the states that expansion will help the most," Edwards, 49, said during the address....

They don't wanna miss out on getting their share of the FREE MONEY!!!

.
Edited by kbp, Jan 12 2016, 09:03 AM.
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Jan 12 2016, 05:19 AM
http://themedium.ca/opinion/the-politics-of-naming-a-victim

The politics of naming a victim

The impeachment of UTSU VP campus life was trial by Facebook

snip
:thud:
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http://www.washingtonexaminer.com/article/2580227


At University of Southern California, students are being required to provide details of their sexual history
By Ashe Schow (@AsheSchow) • 1/12/16 12:53 PM

A person's sexual history is no one's business but his or her own. This is especially the case for sexual assault accusers, say victims' advocates. But at the University of Southern California, every student is being required to provide the school with the details of their sexual history.

Students are required to complete a mandatory online course before they are allowed to register for classes, according to a report from Campus Reform.

"This course is mandatory, and you must complete it by February 9, 2016," university officials told students in an email. "If you do not complete the training by this date you will receive a registration hold until the training is complete."

One student, Jacob Ellenhorn, sent Campus Reform a screenshot of the questionnaire portion of the course, which asked students intrusive questions such as "how many times have you had sex (including oral) in the last 3 months?" and "With how many different people have you had sex (including oral) in the last 3 months?"

Victims' advocacy groups constantly bemoan the questioning of an accuser's sexual history, so it is astonishing that a university would want this information from its students.

Ellenhorn said there is also a section that said drunk students cannot consent to sex. But in a video part of the course, two drunk students engage in sexual activity, but only the man is held responsible for obtaining consent.

"It kept on saying that drunk people cannot give consent," Ellenhorn said. "In one scenario both the man and the woman were drunk but the video still blames the male for the assault. I found that a little confusing."

So not only is the course intrusive, it's also sexist, suggesting that only men can rape and that they alone are responsible for obtaining consent.

Another confusing part of the course teaches students "how to ask for consent," and suggests only verbal signs can indicate a willingness to participate in sexual activity. Physical signs, however, such as "crossing arms" or a "lack of eye contact" are supposed to be watched for signs of unwillingness.

The questions students are supposed to ask in order to obtain consent prove everything I've been saying about new affirmative consent policies — they reduce sex to a question-and-answer session instead of a passionate act.

The questions include "Can I kiss you?" and "Could I hold your hand?" They also include awkward phrases that could potentially end in a sexual harassment accusation such as "How far would you be comfortable going?" and "Have you ever done…?"

The course also "teaches" students accused of sexual assault to just accept that they may be rapists, regardless of whether or not they are. The course offers "tips" on what to do if you're accused. The first tip suggests students "admit" to themselves that they "may have crossed a boundary" even if they don't remember the night or know they would never rape.

The second tip tells accused students to, "Recognize that the other person's feelings about the event are valid." This one in particular is absurd. Feelings are not facts, and no one should have his life ruined because someone else "feels" bad.
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https://reason.com/blog/2016/01/12/uscs-mandatory-title-ix-quiz-teaches-stu

USC’s Mandatory Title IX Quiz Teaches Students That Accuser's Feelings Always Valid
University says students will 'enjoy the assignment.'

Robby Soave|Jan. 12, 2016 1:47 pm

The University of Southern California requires all incoming freshmen to complete an online Title IX course that asks students uncomfortable questions about their sex lives and requires them to agree with some troubling statements about rape and consent.

The existence of the course was first reported by Campus Reform’s Anthony Gockowski:

“It was just full of super personal questions,” Jacob Ellenhorn, a student at USC, told Campus Reform.

Despite some students being uncomfortable with the content of the course, the campus-wide email assured students they would “enjoy the assignment.”

“We believe you’ll enjoy the assignment, and that this training is in line with our shared belief that Trojans care for Trojans. It is an innovative, engaging, and informative online course, created with students for students,” the email stated.

Clearly, not all students “enjoy” sharing the details of their sex lives with the university. The questionnaire asks students to list the number of people they have slept with in the past three months, how many times they have had sex, and whether they used condoms. I have a difficult time accepting that a public university has any right to such information.

It gets worse. The online course includes a section on rape, titled “What to do if you are accused of sexual assault.” The advice it gives is quite bad:

1. Admit to yourself that even if you don’t remember the event, or don’t believe yourself capable of hurting someone, that it’s possible that you may have crossed a boundary.

2. Recognize that the other person’s feelings about the event are valid.

These points seem built around the idea that everyone accused of sexual assault must be guilty of something, and that all such accusations are made by people who are always telling the truth. While this may indeed represent the majority of campus rape disputes, it’s not fair to condition all students to believe they are automatically in the wrong if they find themselves in such a situation.

And students will commonly find themselves in such situations if the course’s muddled consent guidelines are followed:

After completing the questionnaire, students were then walked through a two-hour interactive lesson on sexual assault, consent, and substance abuse. In one case, students were told that a sexual partner who has had too much to drink cannot give consent. However, in a different scenario, the course shows a video of a man and a woman who are both drunk and engaging in sexual activity. …

Another portion of the course teaches students “how to ask for consent” and lists possible verbal and physical indicators their sexual partners may provide. Students are told to look for physical signs such as “crossing arms” or “lack of eye contact” as an indication a partner does not want to have sex. Only verbal signs, however, indicate a partner does want to have sex.

The ultimate purpose of Title IX, it seems, is simply to produce more Title IX cases.
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https://www.thefire.org/bernie-sanders-campus-sexual-assault-requires-law-enforcement-response/

Bernie Sanders: Campus Sexual Assault Requires Law Enforcement Response

By Joseph Cohn January 12, 2016

Speaking to an audience at the Black & Brown Democratic Presidential Forum in Iowa yesterday, United States Senator (VT) and presidential candidate Bernie Sanders echoed FIRE’s position in calling for law enforcement professionals to handle allegations of campus sexual assault. The Hill reports that Sanders argued, “If a student rapes another student it has got to be understood as a very serious crime, it has to get outside of the school and have a police investigation and that has to take place.” Sanders added, “Rape and assault is rape or assault whether it takes place on a campus or a dark street.”

FIRE agrees. As I told Congress last September when I testified before the House Committee on Education and the Workforce’s Subcommittee on Higher Education and Workforce Training:

Victims of sexual assault deserve justice. Justice can only be served by competent professionals. Instead of creating a parallel justice system staffed by inexperienced, partial, and unqualified campus administrators to adjudicate campus sexual assault, policymakers should instead take this opportunity to improve and expand the effectiveness and efficiency of our criminal justice system to ensure that it provides an appropriately thorough, prompt, and fair response to allegations of campus sexual assault. Professional law enforcement and courts have the benefit of years of expertise, forensics, and legal tools like subpoenas and sworn testimony that are not available to campus adjudicators. These resources should be brought to bear on campus.

Sanders is in good company with his remarks. In a comment filed in March 2014 with the White House Task Force to Protect Students from Sexual Assault, the Rape, Abuse & Incest National Network (RAINN), one of the country’s most respected victims’ rights advocacy groups, stated that it is “imperative that colleges and universities partner with local law enforcement around these crimes – from the time of report to resolution.”

RAINN’s comment emphasized the need to treat campus sexual assaults “as the felonies that they are,” warning that “we will not make the progress we hope” for without doing so:

The FBI, for purposes of its Uniform Crime Reports, has a hierarchy of crimes — a ranking of violent crimes in order of seriousness. Murder, of course, ranks first. Second is rape. It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault? We need to get to a point where it seems just as inappropriate to treat rape so lightly.

While we respect the seriousness with which many schools treat such internal processes, and the good intentions and good faith of many who devote their time to participating in such processes, the simple fact is that these internal boards were designed to adjudicate charges like plagiarism, not violent felonies. The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: they lack protections for the accused while often tormenting victims.

And again, FIRE and RAINN aren’t alone in reaching the same common sense conclusion that Bernie Sanders voiced yesterday. In legal scholarship published in the Yale Law & Policy Review last year, Janet Napolitano, president of the University of California System and former secretary of the Department of Homeland Security, raised the same questions about whether colleges are truly capable of effectively and fairly handling campus sexual assault allegations. She wrote:

Are these roles that are well suited for our nation’s institutions of higher education? Survivors are choosing not to report to law enforcement because of their lack of faith and confidence in the criminal justice system. If that is the case, it can be argued that rather than pushing institutions to be surrogates for the criminal justice system, more work should be done to improve that system’s handling and prosecution of sexual assault cases. Law enforcement has the tools to effectively investigate these crimes. The criminal justice process has the authority to impose serious punishments on offenders, including incarceration. The most serious sanction that a college can impose is dismissal, which is wholly inadequate where a crime has been committed. Having law enforcement conduct investigations ensures, if properly done, that effective investigations will be conducted and that there will be appropriate punishments that have a strong deterrent effect, all to the ultimate benefit of the survivors and the safety of the university community as a whole.

Sanders is the latest U.S. senator to take this common sense position. In a Senate hearing in December 2014, Senator Sheldon Whitehouse explained:

As a former United States Attorney and Attorney General for my state, I am concerned that law enforcement is being marginalized when it comes to the crime of campus sexual assault. I am concerned that the specter of flawed law enforcement overshadows the harm of marginalized law enforcement. Anything can be done badly. But law enforcement done right makes sure forensic and electronic evidence is properly collected and preserved. It empowers the victim. It informs her of her continuing power through the stages of investigation and prosecution. It brings professionalism and tools like subpoenas and grand jury in the place of amateur university investigations. It eludes the built in conflict of interest of a university that wants the sexual assault problem minimized or hushed. And it sends an important societal signal when after a rape the crime scene has police tape up, and evidence vans, and officers taking statements—a signal that what happened was serious. At its best, law enforcement response is victim-centered and well coordinated with both medical and mental health and advocacy professionals.

When a rape victim is steered away from law enforcement, based on uninformed choices on proceeding or because the relationship between the university and law enforcement is so weak that contacting law enforcement is a step into a dark unknown, and the victim later loses the chance for justice, she has been victimized all over again. The student has the right to know that delays in opening an investigation and collecting evidence could mean the disappearance of evidence all together and could end up opening up devastating questioning by a future defense attorney. Until we are willing to put more information and control right away in the hands of victims they simply will not trust the system enough to report sexual assaults in the first place. We know this sadly from experience.

Sanders and Whitehouse should know that the public agrees with them, too. For example, a February 2014 poll by The Huffington Post and YouGov revealed that of the 1,000 adults surveyed, only 14% thought “colleges and universities do a good … job handling cases of students reporting rape, sexual assault or harassment.” 42% of respondents thought they did a “bad job,” and 44% weren’t sure. Similar results were confirmed in a January 2015 poll in Virginia, where 90% of the respondents indicated that colleges should be required to report those allegations to police.

Public sentiment aside, Sanders’ position is already attracting criticism from some quarters. For example, writing for Feministing today, Know Your IX co-founder Alexandra Brodsky labels Sanders “uninformed” and asks whether “this is the side of history on which Sanders wants to stand.” Arguing that “[t]o treat gender violence as only a crime is to give up on the project of campus sex equality,” Brodsky posits that “school remedies, like dorm changes and tutoring, are crucially important for a survivor’s ability to learn.”

These kinds of immediate, on-campus responses are indeed necessary. As I wrote for The Washington Post last January, colleges are well-equipped to provide support services to students alleging sexual assault:

To fulfill their legal and moral obligations under Title IX, colleges should focus on tasks they are competent to perform: conducting preventive education, securing counseling for alleged victims and providing academic and housing accommodations to keep students safe while the wheels of justice turn. Colleges should also quickly connect student complainants to medical resources and law enforcement, and they should provide them with the resources they need to navigate the criminal justice system. Colleges are capable of fulfilling such responsibilities successfully. These accommodations could even be implemented on an interim basis while a criminal case is adjudicated in court, to be removed when appropriate or should an accusation be unsubstantiated.

But as Sanders recognizes, the bottom line is that rape must be treated like the incredibly serious crime it is. Providing immediate support services shouldn’t preclude the involvement of law enforcement professionals, who are far better equipped than self-interested campus administrators to properly respond to such serious claims.

FIRE is happy to see Senator Sanders support a common sense response to sexual assault on campus. We stand ready to work with him to ensure that campus sexual assault is addressed in a manner that treats such accusations with the seriousness they require.
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http://www.washingtonexaminer.com/not-naming-sex-assault-accusers-contributes-to-stigma-says-expert/article/2580259

Not naming sex assault accusers contributes to stigma, says expert
By Ashe Schow (@AsheSchow) • 1/12/16 4:56 PM

Media outlets that refuse to name those making sexual assault accusations are promoting the stigma surrounding rape, says a veteran journalist who has written on the issue for decades.

Geneva Overholser, who edited the Des Moines Register when the paper won a 1991 Pulitzer Prize for a series on rape, told the Washington Post that not naming accusers undermines attempts to remove the stigma of rape.

"[Withholding the accuser's name] is a particular slice of silence that I believe has consistently undermined society's attempts to deal effectively with rape," Overholser said. "Nothing affects public opinion like real stories with real faces and names attached. Attribution brings accountability, a climate within which both empathy and credibility flourish."

Overholser also said that not publishing the names of accusers hasn't led to more reporting of sexual assault or a reduction in retaliation against accusers.

Sex crimes are the only crimes in which the victim/accuser's name is withheld unless they give permission. Because of this — and the current media trend of dragging an accused person's name through the mud before any evidence is presented — I would like to see no one's name printed in these situations.

Time and time again, those whose accusations make the front page are vindicated — but not before their reputations are destroyed. Duke Lacrosse and Rolling Stone are just the most glaring examples of this, but there are other stories — both at colleges and in the broader public — where the accusation didn't hold up to even slight scrutiny.

Speaking of Rolling Stone, it was in an article about that story in which Overholser made her comments. The Washington Post asked why the media haven't named Jackie, the woman who told the magazine she was gang-raped at a fraternity party. Every aspect of her story was proven false, yet she is still known only as Jackie.

For one thing, she hasn't been charged with anything. Despite her story being proven false, no one can currently say nothing happened to her that night (which illustrates the larger problem of proving the validity of rape accusations). This has allowed feminists to continue to stand by Jackie and call her a "survivor." The Post's Metro editor, Mike Semel, alluded to such a possibility when he discussed why the paper still hasn't named Jackie.

"We told her we wouldn't name her, in large part because we thought she was a ­sex-assault victim at that time and we don't name victims of sexual assault without their permission," Semel said. "That agreement for anonymity needs to be considered until we are absolutely certain that there was no assault at all."

Which means the Post isn't convinced — despite all the evidence they themselves discovered — that Jackie isn't a victim.

The Post's Paul Farhi also said the paper hasn't named Jackie because it made an agreement with her back in 2014 to withhold her name in exchange for her interviews.

There really isn't much use in naming her at this point, honestly. The lawsuits against Rolling Stone over her hoax are providing plenty of details. I don't see, at this point, how knowing her name will serve any purpose.

But this gets back to my original point: If someone like Jackie can't be named, then the people she accuses shouldn't be named, either — and that should go for all accusations. Even when there is an arrest, if the accuser isn't named, the accused shouldn't be.

This is because, as the Post reported, "it's unfair for media accounts to shield the accuser but identify the accused, potentially putting a social stigma on a person who may be innocent."

In my own writing, I've been trying to name the accused less and less. If the accused and accuser's names are known — as in the case of Emma Sulkowicz — then I'll name both. If I can avoid naming either, I try. Even more recently when it comes to reporting on lawsuits that name the accused students, I've been trying to use their names less and instead simply refer to "the accused."

You may recall a recent article in which I named the accused, and while I didn't want to name them, there were two, and trying to find ways to separate them in a long and complicated story was going to be difficult.

The point is, I'm trying, but obviously not perfect. When I can, I'll avoid naming the accused, but sometimes it's difficult.

And as we've seen in the past few years, as this issue has exploded in the media, with outlets rushing to report any accusation, the conclusion jumping can be devastating to innocent people. Colleges across the country are creating systems where false accusations are easy to make and prohibited from being punished. The media's desire to get traffic off of a rape accusation also encourages attention-seeking hoaxers to come forward.

The answer appears to be to stop naming the accused in these situations.
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http://www.spiked-online.com/newsite/article/new-rape-laws-turning-sex-into-a-crime/16684#.VpWHU1JNi7R

New rape laws: turning sex into a crime

Jon Holbrook
Barrister

Rape laws in England and Wales have become terrifyingly Kafkaesque.

12 February 2015

Rape is a serious crime: those convicted of it face a lengthy prison sentence. Sexual foolishness or stupidity should not be a crime, although its protagonists may well be deserving of moral censure. There is a line to be drawn between sex that is criminal and sex that lacks the criminal culpability to warrant a lengthy prison sentence. In recent years, that line has moved so that those who deserve the shameful tag ‘rapist’ are now joined by some who do not.

The point was well made by the journalist Sarah Vine, who wrote of sexual behaviour that should not be criminalised: ‘Let’s face it, we’ve all done it at one time or another. Shared a cab home with someone we shouldn’t have; invited the wrong guy in for coffee. Unless you’re a saint, the chances of getting through life without making at least one disastrous sexual choice are very small.’

Acts of sexual foolishness or stupidity by men and women, particularly the young, have always happened. But, as Vine pointed out, ‘it used to be that women who made stupid mistakes with men, who had non-violent sexual encounters in dodgy circumstances – while drunk or otherwise intoxicated, in the heat of the moment or for a million other reasons – did not wake up the next morning and decide they had been raped. They took a shower, gave themselves a stern talking to, maybe told a friend about it , had a bit of a cry – and then moved on as best they could, vowing along the way never to end up in that kind of damn stupid situation again.’ Likewise, men who made stupid sexual decisions would, in days gone by, have learnt from their mistakes, often as part of a process of growing up.

But today, to use Vine’s words, ‘there’s a far easier option’ for the woman: ‘blame the bloke’ by ‘crying rape’. And for the bloke there is now the stark scenario of being woken up not just with a splitting headache and a guilty conscience, but by a policeman’s knock on the door.

Sarah Vine was right to draw attention to the way rape laws are now invoked in respect of sexual encounters that are foolish or stupid, but which should not engage the criminal law. Essentially, rape laws are now being used against some men whose behaviour does not, by a proper yardstick, warrant the tag ‘rapist’.

A good example was considered by the Court of Appeal in 2007, after Benjamin Bree, a 25-year-old without any previous convictions, was convicted and sentenced to five years in prison for raping a university student whom he’d met once before. On their second meeting, they’d been out for a meal before returning to the woman’s flat arm in arm. Both had been drinking and, in the woman’s case, this impaired her memory. The woman’s case was that although she remembered various sexual acts, she ‘did not want to have sex, but she did not say so to him’.

Bree’s case was that the woman responded positively to his physical contact and that she removed her own pyjama trousers and asked if he had a condom. The parties agreed that the woman never said or did anything to give the impression she was not consenting, save that the woman claimed to have felt pain at one point, uttered an ‘ow’, and was said to have turned over at one stage to avoid intercourse. On the other hand, Bree described the woman’s movements as ‘pretty enthusiastic’.

So far this might sound like a fairly typical sexual encounter facilitated by alcohol. But a few days later, Bree was arrested at 6am. A most telling part of the court report was that the arresting officer observed Bree ‘to be shocked and extremely upset, and could not believe that an allegation of rape had been made against him’. Nevertheless, Bree was subsequently charged with rape, tried and convicted by a jury, and sentenced to five years in prison.

The Court of Appeal allowed Bree’s appeal, but by then he had spent six months in prison, on the sex offenders’ wing for his own protection. What should trouble anyone about the Bree case is how it could ever have resulted in: first, a complaint to the police; second, an arrest; and third, a prosecution and a jury conviction. Yet the answer to each of these troubling questions is that rape laws are now drawn so widely that Bree’s case is far from being a one-off.

Today, it is not uncommon for rape charges to be brought in respect of foolish or stupid sexual encounters. After presiding over back-to-back trials where a female complainant had been so drunk she could not remember what had happened and, therefore, whether she had consented to sex, Judge Mary Jane Mowat observed that ‘the rape conviction statistics will not improve until women stop getting so drunk’.

It was significant that Judge Mowat prefaced her comments by noting she would ‘be pilloried for saying’ them. She may have had in mind the treatment of Ken Clarke MP, who, in 2011, referred to ‘serious rape’. This prompted Labour leader Ed Miliband to call for Clarke’s resignation on the grounds he was suggesting ‘there are other categories of rape’. Clarke spent the rest of the day saying he ‘always believed that all rape is extremely serious’ and he was ‘sorry’ if his comments had given any other impression.

Despite the censorious you-can’t-say-that attitude of some feminists, there is an urgent need, not to debate the seriousness of rape, but to debate what rape is. Rape, properly defined, is serious. But by redefining rape to encompass drunken or foolish sexual activity, which a man believes the woman is consenting to, the crime of rape is, in these instances, being stripped of its criminal culpability.

‘Impossible’, claim rape campaigners with a glib understanding of how rape is now defined. Labour MP Harriet Harman responded to Sarah Vine’s column with an all-too-familiar analogy: ‘If I leave a window open an inch and someone breaks in, steals everything I own and ransacks my house, no one would say it wasn’t a crime or that the offender had “made a mistake”.’

Yet there is no parallel between a burglar who trespasses into a house and steals, and a man who believes a woman is consenting to sex. Trespass followed by theft is inherently unlawful. Sex, though, is inherently lawful, which is why it requires a carefully drawn law before it is criminalised. Traditionally, a conviction for rape could only be secured if the prosecution proved beyond reasonable doubt that the man either knew the woman was not consenting to sex or he could not care less whether she was consenting (Morgan, 1975). It was this mental element of the offence (mens rea, as lawyers call it) that ensured that only defendants with an appropriately guilty mind could be convicted of rape.

It should be the defendant’s absence of belief in consent that turns lawful sex into unlawful sex. What links stranger rape in the dark alley with acquaintance rape in the bedroom is the criminal culpability that comes from the man penetrating the woman without honestly believing she has consented. It is his state of mind that may put him behind bars. So long as the defendant has this culpable state of mind, it is correct to say that rape is rape and is always a serious crime.

But rape laws were reformed by the Sexual Offences Act 2003 to enlarge significantly the type of behaviour that was criminalised. In particular, under the reformed law, a defendant’s belief that the woman was consenting no longer necessarily results in an acquittal, because the jury must now ask itself whether it was reasonable for the defendant to have believed the complainant was consenting. In other words, the issue of consent no longer turns on what the defendant believed, but on a jury’s view of what it was reasonable of him to have believed.

A man can now be convicted of rape even though he honestly believed the woman was consenting to sex. It is by allowing jurors to disregard the man’s actual belief in favour of what they consider to have been a reasonable belief that the law can criminalise men for acts of sexual foolishness or stupidity. But, in truth, such a man is no more a rapist than the idiot is a thief for taking a woman’s bag from the cloakroom in the unreasonable, but genuinely held, belief that it was his.

The Bree case highlights the problem. Bree said he believed the woman was consenting, a view he supported with her behaviours, and neither the woman nor the circumstances came close to establishing otherwise. Yet the jury’s finding of guilt implies that the jury found such a belief to have been unreasonable. Bree was convicted (albeit cleared on appeal) not for actually having a guilty mind, but because the jury decided he should have had a guilty mind. Bree’s case illustrates how rape laws are unjust for abrogating the fundamental principle of justice that a person should not be convicted of a serious offence unless he actually had a guilty mind.

The injustice of the current law was codified last month by the director of public prosecutions (DPP), Alison Saunders, who unveiled a new ‘toolkit’ for police and prosecutors that requires them ‘to make sure they ask in every case where consent is the issue – how did the suspect know the complainant was saying yes and doing so freely and knowingly?’. What Saunders astutely recognises is that juries, armed with the Sexual Offences Act 2003, can and do now convict defendants for acts of sexual foolishness or stupidity. And that if the Benjamin Brees of this world want to avoid spending several years in prison, they would do well to ensure they have evidence to satisfy a jury that their sexual partner ‘was saying yes and doing so freely and knowingly’.

As Sarah Vine observed, this is ‘laughably absurd: “Hang on a moment, would you mind awfully just signing this pre-prepared document? If you could just place a tick in the boxes next to the acts that you do consent to, just leave the others blank, and sign and date here, then we can proceed”.’ Nowadays, Romeo would be well advised not just to get the Vine checklist signed but also to keep a breathalyser and sniffer dog by the bed in case Juliet wakes up and claims her consent was not ‘freely and knowingly’ given for want of intoxication from drink or drugs.

Yes, it is ‘laughably absurd’, but it also indicates where rape laws under the Sexual Offences Act have taken us. And for those men who receive the policeman’s knock on the door at six o’clock in the morning, it is a sickening absurdity. For those men who become convicted rapists, who serve years in prison, it is an unjust absurdity. An absurdity, that is, for those men who honestly believed their sexual partner was consenting.

When she wrote her article, Vine must have known that she, like anyone who questions the justice of some rape laws, would be vilified. So she got her retaliation in first by referring to ‘the so-called ”vagenda”: the all-men-are rapists brigade, top feministas like Harriet Harman and the femi-fascist Twitter mob who, increasingly, seem to hold sway in public policy’. Yet there is clearly a need to debate a rape law that put Benjamin Bree behind bars, that can convict a man of rape who honestly believes his sexual partner is consenting, and which enables the DPP effectively to require a suspect to establish that his sexual partner was consenting. Some things are more important than the censorious you-can’t-say-that attitude of some feminists – justice is one of them.

Jon Holbrook is a barrister based in London. He was shortlisted for the Legal Journalism prize at the Halsbury Legal Awards 2014. Follow him on Twitter: @JonHolb.

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