Can a male respondent to student sexual misconduct learn anything from the Harvey Weinstein trial and conviction?
Yes. The Weinstein trial teaches what works, what doesn’t, why and how.
Receiving a complaint of sexual misconduct while enrolled in college can and will change the lives of those involved. Sexual misconduct and violations of Title IX are the single most controversial, dangerous, and expanding part of college life in the US. At last count, at least 138 men across the US have run to their local courthouses seeking justice after their school’s Title IX staff treated them worse than dirt, simply because they are men and because for some, men are assumed to be rapists. (1). The thing is that some men are rapists and it is through the reputation of those men that the school’s Title IX staff and the women who complain see respondents. (2).
Thus, the male respondent and his legal team have one task: to show the difference between them and Mr. Weinstein’s cohort (convicted rapists). To make that happen, respondents and their legal team thus document, expose, and reframe the complainant’s story and show that those facts would not have caused the Title IX staff to discriminate against them had they not been men. To plot how to win this effort, it is useful to understand how the average New York City persons in the Weinstein jury reacted to the stories they heard about his deplorable life. (3). The Weinstein jury then becomes a fractal for your average Title IX staff or Title IX adjudicator. It may have been a fatal mistake, but the Weinstein trial judge James M. Burke’s decision to allow so much evidence to convict Mr. Weinstein, provides a case-study in reactions to evidence regularly used in almost every one of the routine male respondent to sexual misconduct scenarios. Mr. Weinstein failed to prove the judge was biased against him. (4). But bias or not, the Weinstein jury teaches those of us helping men respond to Title IX sexual misconduct complaints that:
JUST LIKE THE WEINSTEIN JURY DID, TITLE IX STAFF STRESSES OUT.
The Weinstein jury actually got sick from the stress of hearing these stories and applying the law to them. “Though the debate was mostly civil, the stress got to many of them, and several got sick. “You are analyzing your own morality as viewed by the law in a room of 11 strangers. It is a very stressful dynamic,” one juror said.” (3). This sickness does not surprise any of us dealing with Title IX staff. The fact is Title IX staff is under trained, under funded, with little career future, and highly stressed. The classic statement of this is an article in the Chronicle of Higher Education called “Life inside the Title IX Pressure Cooker” which basically says that Title IX staff are really nice, really stressed out and really frustrated employees who just go to work at a different school when their school gets too controversial for them. So imagine facing a stressed out, sick administrator and asking her for a chance to explain your version of the facts. It gets tough. Title IX administrators, at this point, know well that their careers are on the line.
AS A RESULT OF THIS STRESS, JUST LIKE THE WEINSTEIN JURY DID, TITLE IX STAFF WILL SKIP NUANCE AND FOCUS ON THE SIMPLE FACTS.
Mr. Weinstein’s lawyers did the best they could. The jury, however, did not have the sophistication required to weigh the fact that his two main accusers, “ Miriam Haley, 42, and Jessica Mann, 34 — had maintained relationships with Mr. Weinstein after the attacks and later had sex with him.” (3). In helping male respondents of sexual misconduct, evidence such as this, which comes up many times, has a name: Confirmation. It helps at the very least to lessen the claim that the complainant was immediately traumatized from the sexual misconduct. But in Mr. Weinstein’s case, no doubt because there was a whole bunch of accusations spanning a lifetime of wrong, they made little difference. “Then [the Weinstein Jury] tried to cut through what one called “the noise”— the parade of 28 prosecution witnesses, the ongoing relationships, the naked photo of Mr. Weinstein they had to view — to focus on two simple questions: Did each assault occur? Did it meet the definition of a crime? “It was one instant, not a relationship, that we were analyzing,” one juror said.” (3). Unlike Mr. Weinstein’s jury, however, the second Title IX staff disregards clear evidence that a male respondent has confirmation from his complainant, the second they just expel you on “one instant” is the second that the respondent has grounds to sue.
THE EASIEST WAY TO CONVICT A DEFENDANT OR EXPEL A MALE RESPONDENT IS TO NARROW THE FOCUS.
The Weinstein jury had extensive knowledge of a plausible story which should have helped Mr. Weinstein—for example, that the prosecutors and several of the witnesses were cooperating a little too well for this to be a fair trial. They had evidence that contradicted what each complainant told them. But, in the end, “[t]he jury of seven men and five women decided instead to focus narrowly on whether Mr. Weinstein had broken the law at the time of the incidents. They spent little time discussing three other accusers called to establish Mr. Weinstein’s pattern of behavior.” (3). At that point Mr. Weinstein’s conviction became inevitable in spite of all the nuance. In contrast, a male respondent to sexual misconduct needs to use all the tools that Title IX gives his legal team to prevent the Title IX staff—who in effect are the jury and the prosecution all in one—from just focusing on what happened on a very narrow time frame and ignoring the nuance. While it may seem false in the Weinstein case, nuance matters in school misconduct because no student has a decades' long reputation like Mr. Weinstein’s.
THE MOST CREDIBLE WITNESS PRESENTATION WINS:
The most painful and fundamental part of any sexual assault process, the “she said- he said” turns on whom the jury (or the Title IX staff) believe. Everyone seems to believe the speaker that has the most “credibility”. The Weinstein jury clearly did not believe him. His team did not make him credible. And how could they, really? Yet, a male respondent will only stay enrolled in school and save his good name if his legal team makes him credible. This is hard because it pits the male’s story against the female’s. But credibility tips those stories just so that one wins over the other.
In Mr. Weinstein’s unfortunate life, there was a pattern to his behavior which is usually absent from most student’s responding to sexual assault. Mr. Weinstein’s pattern lent enormous credibility to the accusations he faced. “Still, a second juror said the similarities between the attacks lent credibility to the women’s accounts. “Each act happened the same way,” the juror said. “Each person said the same thing.”(3). There’s however the risk that every student male respondent gets treated as if he had Mr. Weinstein’s pattern because that’s what the Title IX staff see—a pattern not in the one person’s behavior but in the aggregation of behaviors they see over the years of similarly aged men. To go with that falsehood as a motivator to expel the man is male bias and violates Title IX. The antidote to that is a respondent with bolstered credibility. (5).
So, the Weinstein jury strongly suggests that men responding to sexual misconduct in their school have to lawyer-up because they otherwise face (a) stressed out, over worked, Title IX staff who (b) will skip the nuance that exonerates them, using the simplest version of the facts, (c) in the narrowest possible of windows, to expel the male student unless he is (d) able to destroy the credibility of his complainant while bolstering his own.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
Endnotes:
1. There are many lists of cases where men have sued their school for expelling them after a false accusation of sexual misconduct. For example, Footnote 18 of our Comment to the Department of Education on Due Process needs for Title IX’s rules, (available here: https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris) has a good sample. In addition, the great folks at The Fire run a database as well available here: https://www.thefire.org/category/due-process-litigation-tracker/
2. This is the problem with male bias in school’s Title IX staff which are mostly composed of women hired specifically to protect women (as opposed to hired specifically to protect the rule of law). You can see our survey of Title IX staff diversity here: https://www.studentmisconduct.com/news/jauregui-law-office-2019-survey-of-diversity-in-philadelphia-area-college-and-university-title-ix-staff And our guide on how to tell if the school’s staff is discriminating against you because you are a man responding to sexual misconduct, here: https://www.studentmisconduct.com/news/quora-answer-how-can-you-best-tell-if-a-title-ix-investigation-is-using-techniques-that-are-based-on-science-and-evidence-of-effectiveness
3. Jan Ransom, Why the Weinstein Jury Decided to Convict: Inside the Deliberations. The New York Times, March 2, 2020, available at: https://www.nytimes.com/2020/03/02/nyregion/weinstein-verdict-jury.html?action=click&module=Top%20Stories&pgtype=Homepage
4. Alan Feuer, Harvey Weinstein Says His Judge Is Biased. His Judge Disagrees, The New York Times,January 10, 2020, available at: https://www.nytimes.com/2020/01/09/nyregion/harvey-weinstein-trial.html
5. That credibility matters so much has triggered one of the hot-button issues in the upcoming Title IX regulations from the Department of Education, namely, whether or not the male respondent is entitled to challenge the credibility of his accuser in the classic manner, through cross examination. That is the law of the land for public schools under a case called Baum. See more on that here: https://www.studentmisconduct.com/news/whats-title-ixs-problem-with-having-college-investigations-of-student-sexual-misconduct-without-cross-examinations