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Our Reactions to the Student Misconduct Process

What happens if the accused college student apologizes either before, during, or after his first Title IX sexual misconduct hearing?

If you are a student, currently under investigation for sexual misconduct at your school, and now you can’t even go to the school not only because of the COVID-19 quarantine but also because the school’s Title IX staff have banned you from campus, it may occur to you to apologize to see if that speeds up your penury. (1). It’s a nice thought; however, the problems with apologies grow the more you think about apologizing. 

FIRST, an apology, for any lawyer defending a man responding to sexual misconduct, is a minefield of “admissions against self-interest”.  For example, saying “I’m so sorry I raped you” will land you in prison, whether you actually are a despicable rapist, or you have been led to believe you are.  Thus the unfortunate reality that legal-based apologies are very curt and don’t sound honest. (2).  The person stating the apology often does so to an inflamed audience.  The curt, legal language of an apology does little to calm that inflamed audience—and challenging the accusation is even worse. Mr. Dailyn Leach, a Pennsylvania state politician, and a Democrat at that, is an example.  (3).

SECOND, an apology, for anyone trying to help you to heal, triggers a powerful, transformative experience that will hurt you personally and will make you vulnerable publicly.  Hannah Arendt wrote the best work I know of on forgiveness—what you seek from the apology.  (4).  Sadly, Title IX staff are, in my opinion, unquestionably on the woman’s side (when she is a complainant) and I can not think of a single time they’ve helped to, or accepted an apology from, a respondent.  They don’t like men. (5).

THIRD, an apology, for anyone trying to help you rebuild your reputation is something that shifts like mercury and that no matter what, will not make everyone happy.  The case of Placido Domingo, an important opera singer, illustrates the point because it comes as a result of his efforts to assuage the #MeToo movement.  After a life-time of being in the spot light as probably the world’s best tenor, it finally occurred to some, because of the #MeToo movement, that Mr. Domingo was not only too touchy, but also that he had both a sexually overt manner at work (that created a “hostile” environment) and particular relations with women at work (that created sexual harassment for the women).  The thing is, Mr. Domingo did what was the norm in his field at that time, and then stopped doing that norm when the “new normal” kicked in. (6).

            Mr. Domingo first apologized:  “I respect that these women finally felt comfortable enough to speak out, and I want them to know that I am truly sorry,” he said.  “I accept full responsibility for my actions,” he added. (7). Then the union investigating him stated that he had: “engaged in inappropriate activity, ranging from flirtation to sexual advances, in and outside of the workplace.” (8). So Mr. Domingo changed the story, clarifying that:  “he wanted to “correct the false impression” his statement had created.  “My apology was sincere and wholehearted,” he said. “But I know what I haven’t done, and I will deny it again.” “I have never behaved aggressively toward anybody, nor have I ever done anything to obstruct or hurt the career of anybody,” he continued. (9).  The problem, of course, is that this statement ignores the reality that women may have been forced to accept his flirtation—which is harassment—even if he was not physically overpowering—which would have been the assault he denied.  It did not go well afterwards, for anyone, including for the lawyer representing two of these women, who seems to have stated the very American notion that apologies are worth about as much as the money that accompanies them. (10).

FOURTH, a strategy only works through a network, consider that the hope of an entire political party rests with a newly alleged sexual assaulter:  Vice-President Joe Biden currently faces one sexual assault claim from one woman from events that supposedly took place way back in 1993. (11).  That is, this stuff keeps coming up, even though it apparently happened way before most of today’s college students were even born.  Even worse, not only has the woman not been able to let go for 27 years, her claim keeps evolving.  First it was “he touched me” now it’s a profoundly more troublesome “he put his fingers into me” (evolution of a claim signals weakness for any woman’s credibility). (12).  The political point, lost on those who claim that “victimization” contains an enormous amount of experiences over an endless time, remains that Mr. Biden is not only the force behind the entire set of Title IX rules that turned colleges into the “sex police,” (13) but also that he is running against an inept, unrepentant, misogynist with a plethora of credible sexual assault allegations (14).  Of note, Vice-president Biden, working through his entire organization, has presented a clear, stable, introspective message in response and used a powerful megaphone to broadcast it:  Vice-President Biden did nothing to this complainant, but he respects the right of any woman to complain (15).  However, the reality for college students is that no one backs them when they have to respond to sexual misconduct allegations even if they can state a powerful, introspective, clear and stable strategy.

IN CONCLUSION:  The #MeToo movement has tremendously good impact on society but an unforgiving and often flawed memory.  Thus, it impacted Mr. Domingo at the end of his career.  It derailed Mr. Leach in the middle of his.  It will be the single most powerful argument against the (I hope) next president of the United States, Vice-President Biden.  And then there’s its impact on those young college men, right at the start of their career, who get thrown under the bus in the name of #MeToo and #Title IX by banal administrators and by misguided, traumatized women.  The young men of the #MeToo era, often and suddenly, face career-ending, exaggerated, one-sided, or completely false allegations of sexual misconduct.  You could assume if that’s your situation, that an apology is optimal to speed things up.  But if you think about these examples, Leach, Domingo, Biden, the issue never goes away.  Thus, what you need to do is discuss this with your lawyer first.

Raul Jauregui

Jauregui Law Firm

www.studentmisconduct.com

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, suggestions on how to protect your family’s college students in this Coronavirus national emergency. If you’re in this situation, in any way, consult a lawyer now.

As posted in Quora:

https://www.quora.com/What-happens-if-the-accused-college-student-apologizes-either-before-during-or-after-his-first-Title-IX-sexual-misconduct-hearing/answer/Raul-Jauregui-1

ENDNOTES:

1.         On March 12, 2020, early on the COVID-19 crisis, we stated what just about every pro-respondent organization is now stating: that quarantines do not excuse the school for stopping or slowing down Title IX investigations because men facing misconduct allegations have their lifetime reputation on the line.  See, https://www.studentmisconduct.com/news/male-respondents-to-sexual-misconduct-and-coronavirus-client-alerthttps://www.studentmisconduct.com/news/male-respondents-to-sexual-misconduct-and-coronavirus-client-alert

2.         One of the best apologies I know of, stated under duress, comes from the 1988 film a Fish Called Wanda, https://www.imdb.com/title/tt0095159/, where John Cleese, playing English barrister Archie, states this to Kevin Kline, playing Otto, in order to save his life and not be thrown out of a window.  Otto, who is basically mad, has the decency to accept it:

Archie:
All right, all right, I apologize.

Otto:
You're really sorry.

Archie:
I'm really really sorry, I apologize unreservedly.

Otto:
You take it back.

Archie:
I do, I offer a complete and utter retraction. The imputation was totally without basis in fact, and was in no way fair comment, and was motivated purely by malice, and I deeply regret any distress that my comments may have caused you, or your family, and I hereby undertake not to repeat any such slander at any time in the future.

Otto:
OK.

3.         It seems that this man thought legalese and counter-attack instead of an apology works, and that then this triggered an endless mess.  Mr. Daylin Leach, a state-level Democratic politician in Pennsylvania, has been trying to go on with his career, after a law firm’s investigation on his conduct in the workplace found no violation of Title VII.  (This grounds his point that there is nothing sexual enough for him to apologize about, but ignores the fact that in the 3rd Circuit Title VII law is weak and out of step with #MeToo efforts).  In Mr. Leach’s case, he has, it would seem, lost all the support of his own party, even if he did not violate the employment laws:

“For two years, Pennsylvania Democratic leaders have tried to get rid of Daylin Leach.  Officials as prominent as the governor and as obscure as local party committee members have called on the state senator to resign.”…

“To Leach, who has long denied wrongdoing, the episode shows the perils of jumping too quickly to conclusions about a person’s conduct without all the facts. An investigation commissioned by Senate Democrats last year found that Leach at times engaged in humor that was sexual in nature. Investigators also said his conduct fell short of violating federal workplace discrimination law.”

“I don’t understand the logic of saying you should defeat one of the best advocates for women in order to validate women,” said Leach, 58, of Wayne, a state legislator since 2003 and a longtime leader for liberal causes. “I think I have a pretty compelling record of accomplishment.”

Andrew Seidman:  Daylin Leach was a #MeToo moment for Pennsylvania Democrats. But beating him won’t be easy. The Philadelphia Inquirer, January 13, 2020, available at:  https://www.inquirer.com/politics/pennsylvania/daylin-leach-pennsylvania-senate-primary-metoo-20200113.html

4.         Hannah Arendt, The Human Condition, 238–43:

“In this respect, forgiveness is the exact opposite of vengeance, which acts in the form of re-acting against an original trespassing, whereby far from putting an end to the consequences of the first misdeed, everybody remains bound to the process, permitting the chain reaction contained in every action to take its unhindered course.”

The rest of this wonderful excerpt is available at:  https://cenlib.m.tau.ac.il/sites/cenlib.tau.ac.il/files/media_server/Wiener/forgiveness_arendt.pdf

5.         We’ve discussed why men have to sue when facing Title IX allegations, and why the make up of Title IX staff favors women who complain they are the victims of student sexual misconduct here:

https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-is-there-bias-during-a-schools-sexual-misconduct-investigation-under-title-ix-who-gathers-the-information-and-how-is-privacy-protected-if-at-all

and here:

https://www.studentmisconduct.com/news/jauregui-law-office-2019-survey-of-diversity-in-philadelphia-area-college-and-university-title-ix-staff

6.         Interestingly, to show how people of color do not complain nearly as loudly as white women do, Mr. Domingo performed extensively, in his most important role, Verdi’s Othello, in black face.  I saw him as a teenager doing so in LA—twice because he is the most important Othello of his generation.  And then Mr. Domingo stopped doing that when black face became objectionable.  Once again, he had done what was the norm in his field at the time, and then stopped.  Yet I am not aware that he had any issues for having performed in black face or for having stopped doing so.  Mr. Domingo also wore ethnically objectionable make-up for any number of other roles that he is world-famous for, like Kalaf, the idiot lead in Puccini’s Turandot.  No issues there either.

7.         Alex Marshall, Plácido Domingo Walks Back Apology on Harassment Claims, The New York Times, February 27, 2020, available at:  https://www.nytimes.com/2020/02/27/arts/music/placido-domingo-apology.html?action=click&module=Well&pgtype=Homepage&section=Music

8.         id.

9.         id.

10.       Michael Cooper, Disclosure of Plácido Domingo Allegations Scuttles $500,000 Deal. The New York Times, February 25, 2020, available at:  https://www.nytimes.com/2020/02/25/arts/music/placido-domingo-sexual-misconduct.html?action=click&module=Well&pgtype=Homepage&section=Music

“Two of the women who went on the record to The A.P. to accuse Mr. Domingo of misconduct and harassment, Patricia Wulf and Angela Turner Wilson, said in a statement through their lawyer that they believed he should be expelled from the union.  Debra Katz, the lawyer representing them, said in an interview that she was “distressed” to learn about the union’s financial talks with Mr. Domingo.  “The fact is that A.G.M.A. was trying to enter into a secret deal with Plácido Domingo that was conditioned on confidentiality, and in exchange he gave a tepid apology and offered to pay some money that is a fraction of what he earns,” she said. “And what are the women getting out of this?”” [Emphasis added].

11.       I take these statements from reported matters which I read today in the New York Times.  Lisa Lerer and Sydney Ember, Examining Tara Reade’s Sexual Assault Allegation Against Joe Biden, The New York Times, April 12, 2020, available at:  https://www.nytimes.com/2020/04/12/us/politics/joe-biden-tara-reade-sexual-assault-complaint.html?action=click&module=Top%20Stories&pgtype=Homepage

12.       “The former aide, Tara Reade, who briefly worked as a staff assistant in Mr. Biden’s Senate office, told The New York Times that in 1993, Mr. Biden pinned her to a wall in a Senate building, reached under her clothing and penetrated her with his fingers.  Last year, Ms. Reade and seven other women came forward to accuse Mr. Biden of kissing, hugging or touching them in ways that made them feel uncomfortable. Ms. Reade told The Times then that Mr. Biden had publicly stroked her neck, wrapped his fingers in her hair and touched her in ways that made her uncomfortable.”  (id).

13.       Emily Yoffe, Joe Biden Created the Culture He Is a Target Of.  Politico.  April 3, 2019, available at:  https://www.politico.com/magazine/story/2019/04/03/joe-biden-college-campus-sexual-assault-226481

“The New York Times’ Michelle Goldberg wrote recently that she doesn’t think Biden is a sexual harasser, but that the accusations and his response help to demonstrate that his “time is up.” There is an irony at work here: Biden helped to make possible a world in which long-ago and trivial accusations can upend one’s reputation and career.”  [Emphasis added].

14.       Sexual assault allegations against Donald Trump, unlike against college students, actually don’t matter any more.  “Experts on gender studies and the press describe a shock fatigue with Trump — a “dog-bites-person story, rather than the person-bites-dog story,” as UCLA sociology and gender studies professor Abigail Saguy put it — noting the public’s desensitization due to more than a dozen well-known earlier allegations of sexual misconduct against him and the lack of amplification by his critics.” Eli Yokley, Allegations of Sexual Misconduct Against Trump Largely Fall on Deaf Ears.  Morning Consult.  July 8, 2019, available at:  https://morningconsult.com/2019/07/08/allegations-of-sexual-misconduct-against-trump-largely-fall-on-deaf-ears/.  The allegations are so many that they prove a pattern:

“President Trump has been accused of sexual assault and misconduct by more than a dozen women, who have described a pattern of behavior that went far beyond the accusations against Mr. Biden. The president also directed illegal payments, including $130,000 to a pornographic film actress, Stormy Daniels, before the 2016 election to silence women about alleged affairs with Mr. Trump, according to federal prosecutors.

Mr. Trump has even boasted about his mistreatment of women; in a 2005 recording, he described pushing himself on women and said he would “grab them by the pussy,” bragging that he could get away with “anything” because of his celebrity.” (Note 11 supra).

15.       “In response to Ms. Reade’s allegation, Kate Bedingfield, a deputy Biden campaign manager, said in a statement: “Vice President Biden has dedicated his public life to changing the culture and the laws around violence against women. He authored and fought for the passage and reauthorization of the landmark Violence Against Women Act. He firmly believes that women have a right to be heard — and heard respectfully. Such claims should also be diligently reviewed by an independent press. What is clear about this claim: It is untrue. This absolutely did not happen.””  (Note 11 supra).