Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Other ways of thinking about the problem include:

1. family therapists and DCF-like agencies.  when conflicts arise about things like mandatory reporting laws in contexts where therapists or social workers are helping whole families - or parents and one child - they deal with conflicts - and probably have practical and ethical guidelines you might be able to use.

2. prosecutors' offices.  when i was a prosecutor, we occasionally had victims who each accused the other of being the aggressor - especially in barroom brawls.  we also had situations where victims became distraught and took vigilante-like action against the offender, leading to charges against the victim.  prosecutors might also have ideas about building walls within the office and policies that make sense for schools.

whatever the policy, it is important to have a strong and clear statement in place about sanctions for retaliation and intimidation so that the initial victim does not lose the value of her rights under Title IX (or other federal civil rights law) against retaliation and/or to ensure that strategically initiated cross-complaints don't become an end-run around rules against retaliation.  Just as schools typically have explicit rules against false allegations, schools need to have even stronger rules in place against retaliatory false claims that are filed strategically so that offenders can develop leverage to use against the victim in her case.  I never saw a false rape case in my years as a prosecutor - but I saw plenty of lies from offenders that were used to support false claims against the victim in retaliation for her efforts to seek justice.   I don't think I saw a single accused sex offender ever tell the truth about his own guilt unless and until he was offered a plea bargain.  

It's clearly possible to have two victims and two offenders in the same situation - or in the same relationship where things occur on different dates.  but it's more likely that complaints against the primary victim, especially if made after the first complaint, are strategic and false.  Thus, while it's good to have policies in place that provide for a meaningful response with appropriate barriers in place for legitimate conflicts, they should be placed alongside clear rules that explain why retaliatory claims will be punished with severe sanctions as a separate Title IX violation - even IF the underlying Title IX claim is unsuccessful.   Accused students should know that they could face expulsion for making false claims against victims in order to gain a strategic advantage.

Wendy Murphy

New England Law\Boston