Imagine the following scenario, which I have been thinking a lot about in the wake of the recent Harvey Weinstein verdict in New York.
You’re a college student. As many college students do, you go to a party and have a few drinks. You get a nice buzz on. You wouldn’t say that you’re wasted, but you’re pretty buzzed. You look around the party, and you see another college student. You’ve never seen her before. You look at her, she looks at you, and you cross the room to talk to her. She seems nice, and about as intoxicated as you are – the buzz of someone who’s having a fun night out, but not glassy-eyed or word-slurring.
So you talk a little. You dance a little. And after a while, you ask her to come back to your room. She agrees. You then walk back to your dorm, which is about a two-minute walk. When you get to your room, you’re happy to find that your roommate is not there. So you hang a tie on the doorknob and close the door. You and your companion start kissing, one thing leads to another, and you have sex.
After it’s over, she asks you if she should stay the night. You say you’re not sure because it’s almost 3 a.m., and you have an early class tomorrow. She seems a little annoyed by this, but you don’t think anything of it. You both get dressed, and then she leaves and walks back alone to her own dorm, which is just a couple of buildings away.
On the walk to her dorm, she sends you a text message. It says, “Uh-oh, I think I’m doing the walk of shame, and people are starting to stare.” You text back, “LOL,” and add, “Don’t worry about the judgers!” She responds with a smiley-face emoji.
Then you go to sleep.
The next day, she emails you to see if you’d like to grab dinner at the dining hall that weekend. Realizing, in the cold light of day, that this probably isn’t a relationship that you want to pursue, you make up a lame excuse. She can tell it’s a lame excuse and responds with something terse and noncommittal like, “No problem.”
A month passes.
You’re sitting at your desk, writing a paper, when an email comes in. It’s from the Title IX office, which you’ve never been to. You open it, and it notifies you that, effective immediately, you are to have no contact with the woman from that night. You can’t talk to her, call her, text her, or email her.
It also says that you’ve been charged with sexual assault.
Your heart stops, and you get a pit in the bottom of your stomach. You start to think about how you’re going to defend yourself. Fortunately, your mom had once forced you to read a Title IX lawyer’s blog post one time, so you don’t use Snapchat. That means that you still have the text message she sent you about doing the walk of shame and asking if you want to get dinner that weekend. “Great!”, you think. “This is really good evidence that she was happy when she left my dorm and wanted to see me again, and there’s no way anyone will believe she would have sent something like this if I had actually assaulted her.”
What, for a long time, many people would have considered simply common sense – you probably don’t send jokey texts and smiley-face emojis to people who have just sexually assaulted you, nor do you invite them to dinner the following weekend – has become controversial in the last few years on college campuses. “Trauma-informed” adjudications, which often seek to explain away exculpatory evidence like that on the basis that sometimes victims can take a long time to process trauma, have weakened a lot of the impact of this evidence.
That’s not to say it doesn’t work, and not to say that it still doesn’t win cases. It does work, and it does win cases. But schools often evaluate this evidence in a sort of “heads I win, tails you lose” manner. If there are no exculpatory texts, that’s probably because the victim was too traumatized to say anything, or because, obviously, you don’t send texts like that to someone who has assaulted you. But if there are such texts, that doesn’t prove anything, either. It just proves that the trauma took a long time to process.
This approach, which has been largely confined to college campuses in recent history, now risks breaking out in the aftermath of the Harvey Weinstein verdict. And an Associated Press article written shortly after the verdict – “Weinstein case could influence other sex crime prosecutions” – suggests that it will start bleeding into the mainstream soon.
As those who have followed the trial know, one of Weinstein’s accusers, Jessica Mann, sent a series of favorable and flattering emails to Weinstein for years after he allegedly raped her. His defense lawyers, of course, made a great deal of hay of that at the trial. They argued all the things noted above – that these are not the emails of someone who is a victim, but of someone who wanted to maintain a relationship with a person who could help her career.
The jury, of course, disagreed. And now I worry that a new era may be dawning, both in the real world and in the campus world, which was already far too receptive to the explain-away temptations of the trauma-informed approach. As Manhattan District Attorney Cyrus Vance, Jr. said after the verdict, “This is a new day. Rape is rape whether the survivor reports within an hour, within a year or perhaps never. It’s rape despite the complicated dynamics of power and consent after an assault. It’s rape even if there is no physical evidence.”
I’m sure that’s sometimes true, even though I shudder every time a prosecutor says it’s a “new day” for anything. But given that it’s often impossible to know what really happened in a dark dorm room between two inebriated college students with no witnesses, things like texts and emails sent around the time of the event can be hugely probative – and sometimes the only objective, exculpatory evidence available to an accused student. The idea that such evidence could, after the Weinstein verdict, become even more devalued is all the more troubling given that, in Title IX cases, you don’t get anywhere near the level of due process that you get in a criminal court.
Sometimes, a few texts are all you have. And your future could hang on what someone thinks about a smiley-face emoji.
February 28, 2020