Cornell’s Year of Sexual Assault Cases

Over the past several years, I’ve done biannual reviews of Yale’s Spangler Reports, the only publications that document all sexual assault cases handled by a single university. These reports are (deliberately, I suspect) bare-bones, but nonetheless they frequently yield intriguing findings.

One of the three due process lawsuits against Cornell, however, has brought to light a more remarkable document. Prepared by Amanda Minikus, Cornell’s Judicial Codes Counselor, the document reviewed all sexual assault cases at Cornell during the 2013-2014 academic year. (The JCC is an independent body that assists students accused in the Cornell disciplinary process; it’s staffed by law students.)

Minikus’ key thesis: “In its efforts to swiftly revise its procedures and crack down on sexual misconduct, Cornell has implemented policy far beyond what is necessary to comply with OCR’s guidance and created a process fraught with inequities.”

For instance, despite silence on the issue from the Office for Civil Rights, accused students at Cornell are advised they have no right to remain silent. The faculty panel that pronounces final judgment hears only from the investigator, not the accused student. The accused student can have a lawyer, but the lawyer can’t actively participate in the disciplinary process. The accused student or his representative can’t cross-examine the accuser, even indirectly. The accused student or his representative has no right to the evidence gathered by the single investigator—on grounds that this constitutes “work product.” (After complaints, Cornell agreed to provide an “edited” version of this material.)

This point doesn’t get stressed enough. As troubling as OCR’s demands are, most universities (including all the Ivy League members) have enacted policies that go even further in denying due process to accused students. Minikus concedes that, per the Dear Colleague letter, Cornell had an interest in avoiding financial penalties from federal government—but it also had “an important interest in preserving Cornell’s commitment to due process and equitable procedural treatment.” Instead, Cornell wholly abandoned its commitment to due process.

Minikus wanted the school to move in the other direction. Since “the preponderance standard is grossly inconsistent with what should be required to impose a punishment so severe,” it should return to the clear and convincing standard for sexual assault allegations, and “reexamine” its decision to follow Dear Colleague letter.

The JCC also worried about the “immediate and severe” effects of interim punishments, which occur before the adjudication process has been completed. The JCC staffers noticed that every demand for an interim punishment filed by an accuser listed either that she “disliked” the accused student, or was uncomfortable with the accused student remaining on campus. But “if one student may be temporarily suspended merely because another student dislikes him or expresses discomfort,” the policy “becomes a tool for students to easily injure one another.”

Minikus’s other main points:

Disparity between treatment of students and of faculty. The report notes that Cornell seems willing to protect the due process rights of faculty accused of sexual misconduct, but not students—a “troubling disparity.” Through the 2013-4 academic year, faculty accused of sexual misconduct were adjudicated by the clear and convincing standard. They had access to all exculpatory evidence. They had a right to remain silent. They had a right to be represented by a lawyer throughout the process. They had a right to a full hearing. They had a right to cross-examine all witnesses, including their accuser. Students had none of those rights. Though Minikus was describing the 2013-4 procedures, the disparity remains.

Breadth of what Cornell considers sexual misconduct. For instance, one 2013-2014 case featured a female student who claimed that ten pairs of undergarments were missing, and therefore had been stolen from her room. She informed the Cornell single investigator-adjudicator that she suspected a male student with whom she’d had negative interactions had committed the crime. She had no evidence that he had done so; indeed, it appears she had no evidence that her undergarments had been stolen at all. But Cornell found the male student guilty of sexual misconduct after the single investigator-adjudicator considered the accuser’s suspicions more credible than the suspected student’s denials, even though the university investigation had uncovered no evidence that the accused student had done anything wrong. That finding—which doubtless will be interpreted by future employers as something equivalent to sexual assault—will remain on his transcript for life.

Gender. In all eight sexual assault cases during the 2013-2014 year, the accused student was male. After the sole male staffer was reassigned for unspecified reasons, all investigator-adjudicators were women, overseen by the Judicial Administrator, who also was a woman. The report noted the “troubling” dynamic of all accused students being male and all investigators being female.

Inconsistent procedures. Minikus detected occasions of seeming bias in Cornell’s approach—twice, polygraph examinations indicating accused student’s truthfulness were deemed inadmissible, on grounds that polygraph results are inadmissible in a criminal proceeding. “Note,” the JCC archly observed, “that investigators’ sudden reliance on the evidentiary standards to the criminal courts stands in contradistinction to their ordinary, emphatic insistence that [the Cornell policy] is an ‘educational’ process with relaxed evidentiary standards and without penal goals.”

Training. Cornell’s Title IX staff receive training from Markel Consulting, whose firm’s website states that his career “has been dedicated to pursuing justice for victims of crime.” A JCC associate attended the training (information for which is not public on the websites of either Markel or Cornell). The associate found that “the training focused primarily on how a school should proceed after a sexual assault took place. In short, the training assumed a sexual assault occurred.” This type of training, the JCC concluded, poorly served Cornell, since “beginning such training with the assumption that every allegation is valid does not train investigators to impartially assess complaints.” The JCC asked Cornell to publicize the training that Title IX officers received; Cornell so far hasn’t accepted that recommendation.

Finally, the JCC faulted Cornell for excluding students from the disciplinary process—since campus sexual assault allegations “frequently arise in social contexts that are characterized by generational norms . . . Behaviors that seem inappropriate to faculty members may actually reflect present-day campus customs or have explanations that are unapparent to older community members.” This lack of “familiarity with student social scene” can cause problems with judgment.

The Minikus document presents a depressing examination of one year in a major university’s sexual assault cases. You can read it here.

[Update, 28 July: The JCC did not publish  an end-0f-year report last spring, but I was told by the current JCC chair that the organization will be producing a report next spring. All concerned with campus due process should look forward to the document.]

Celebrating Erdely as a Journalist

Regardless of their impact on Dean Eramo’s lawsuit, the release of the Rolling Stone affidavits leave little doubt that Sabrina Rubin Erdely isn’t a very good reporter. She had her thesis—existence of a campus “rape culture”—in advance. As Cathy Young noted, the spine of the article, Jackie’s story, “had more red flags than a Soviet military parade.” Yet as Jackie was unwilling or unable to answer key questions, Erdely, a true believer, plowed ahead. And even the discrediting of Jackie’s story didn’t shake Erdely’s confidence in her thesis. In her affidavit, she suggested that if she learned that Jackie had invented the tale, she just would have substituted the experience of another person she had decided was a victim, “Stacy,” as the central vignette.

Earlier today, Worth editor Richard Bradley found it “fascinating to read some of these pre-debunking tweets.” I took a look. He’s right. It’s easy to see how people could have been horrified by the article. But it’s remarkable to observe how many high-caliber editors and reporters praised the quality of Erdely’s journalism. It seems their agreement with Erdely’s thesis blinded them to her flaws—a consistent problem in how most of the mainstream media has approached campus sexual assault.

It’s worth reiterating: Bradley, along with Robby Soave, expressed doubts about Erdely’s work from the start. And within a couple of weeks, the Washington Post (with assists from the Daily Caller and a disastrous Erdely appearance on Slate’s DoubleX podcast) had done the reporting Erdely had not. The overwhelming tendency to praise her reporting, therefore, is notable.

Three categories stand out:

Praising the Caliber of Erdely’s Journalism

Jeffrey Toobin, staff writer at the New Yorker and CNN legal analyst, tweeted to Erdely: “You did amazing work, a real public service.” “Great journalism,” he added.

Fantastic reporting,” gushed Nina Gregory, senior editor on the arts desk at NPR. New York contributing editor Marin Cogan described the piece as “easily one of the best pieces of journalism I’ve read this year.” NBC’s Luke Russert hailed this “extraordinary piece of journalism.” Voactiv’s Susie Banikarim recommended this “important and very well-reported piece on rape culture.” The normally even-handed Richard Deitsch, of Sports Illustrated, expressed “thanks” to Erdely for “her reporting.”

Among editors: Eric Umansky, deputy managing editor at Pro Publica, deemed Erdely’s article—which he said had exposed “lawlessness”—“a triumph of investigative storytelling.” Philadelphia Magazine’s featured editor Richard Rhys described Erdely’s work as “mag[azine] journalism at its best.” BuzzFeed deputy culture editor Karolina Waclawiak celebrated Erdely’s “brilliant reporting.”

Steven Ward, the news director at the Clarion-Ledger, hailed Erdely as a “superstar” who exposed “rape culture at UVA.” For widely published freelance reporter Alex Suskind, Erdely’s article was “required” reading. Former Gawker editor Maggie Shnyarson remarked, “I’d love to get my hands on those little shits.” She presumably wasn’t referring to the campus activists who uncritically championed Jackie’s story.

A tweet from Atlantic’s Jeffrey Goldberg deeming Erdely’s reporting “amazing” survives. But Goldberg had another, presumably more detailed, tweet, in which he also passed along the link to the article. Erdely thanked him for it; many people responded to it. But the tweet has vanished from his timeline.

Calls to Action

David Beard, executive editor for Public Radio International (and formerly of the Washington Post) had a message for Erdely: “You are making change happen. This editor thanks you.” “Thank you, David,” Erdely replied.

Retweeting a Washington Post article on UVA president Sullivan’s decision to suspend all fraternities at the school, Post reporter Dan Zak had a blunt message: “Now burn ‘em down.” Imagine the (appropriate) outrage if—under any circumstances—a Washington Post reporter had publicly advocated burning down a Multicultural Center or a Women’s Center after an allegation that some of their students had committed misconduct.


Neal Rogers, U.S. editor-in-chief of Cycling Tips, said that after reading Erdely’s article, he wanted to “‘rush a frat’—with a semiautomatic.”

The New York Times

The Times has led the way in flawed reporting of campus sexual assault, so it was little surprise to see several of its reporters praise Erdely’s work.

Jessica Lustig, deputy editor at the Times Magazine, commented on how, after Erdely’s “devastating” report,” UVA suspended all fraternities. Times tech policy reporter Celia Kang likewise gave her “kudos” to Erdely, after her “deeply reported” article led to the suspension of all UVA’s fraternities. Times Sunday Styles reporter Katie Rosman also praised Erdely’s role in getting the fraternities suspended: “THIS is a journalist affecting change,” she wrote.

Times business columnist Claire Martin hailed the “incredibly well reported” article. Times political reporter Ashley Parker shared a link to the “devastating” article, which exposed the “culture of rape” at UVA, to people on her twitter feed. David Dobbs, who has written features and essays for the Times, almost sounded like an Erdely fan-boy: “Incredibly good and important work there, Sabrina,” he gushed. “Deep bow to you. Splendid, vital reporting and writing.”

Erdely’s Responses

Before her piece was discredited, Erdely responded to some of the praise. She also offered her own additional analysis. “Not to state the obvious,” she noted on November 22, 2014, “but enlightened men are key to fixing the rape epidemic. It’s so good to have you on board. Let’s recruit more.” (Meanwhile, she deemed herself “shocked” by the phenomenon of “women perpetuating rape culture.”) The next day, she anticipated a movement, hoping “that fraternities at UVA & elsewhere will embrace this as an opportunity to be leaders in turning the tide against rape.” Administrators needed to get in on the act, as well, since the “scary truth is, the culture of rape and impunity is hardly limited to UVA. Every school should be taking a hard look at itself.” And Erdely deemed it a “good time” for “very, very rich” alumni to pressure the UVA leadership.

A final note. Because Rolling Stone replaced Erdely’s article with the Columbia Journalism Review’s (partial) autopsy of the magazine’s editorial failures, reporters whose tweets included an embedded URL now look like the below.



Somehow fitting to see the praise for Erdely’s work accompanied by “what went wrong?”