04/29/2014 Jonathan Taylor

Brett Sokolow to education administrators: stop punishing men for consensual drunk sex

Attorney Brett Sokolow is the founder, president, and CEO of the National Center for Higher Education Risk Management (NCHERM, which is said “in-kerm”) and the Executive Director of the Association of Title IX Administrators (ATIXA). Throughout much of his career he has been involved in helping and pressuring colleges to adopt rigorous sexual misconduct policies, which has placed him hand-in-hand with the due-process-be-damned brigade in higher education. He has also occasionally sneered at the Men’s Human Rights Movement for championing the cause of the wrongly accused.

His advocacy culminated in the disastrous 2011 “Dear Colleague” letter from the Department of Education, which formalized the evisceration of due process rights on college campuses.

In recent times, however, it seems that he may be having a slight change of heart. Two years ago, on this same month, he claimed that “a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” And now, in a recent ATIXA “Tip of the Week,” he made some bold statements that are sure to rattle the nerves of many a campus “social justice” warrior. He says:

Okay, so I’m all fired up again. In the last two weeks, I’ve worked on five cases all involving drunken hook-ups on college campuses. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong.

Hear that, Feminists? Hear that, college administrators? Drunk sex is not in and of itself rape. Notice that Sokolow is not just saying that false accusations happen, but also that wrongful convictions happen – and more than many would like to admit. He continues:

So, let me come at this from another angle. Finding each of the accused in violation of sexual misconduct is sex discrimination. We are making Title IX plaintiffs out of them.

Yes. Thank you, Brett Sokolow. As I have been saying for a long time, wrongful accusations of sexual misconduct are indeed an educational equity (Title IX) issue, especially when they are accompanied by wrongful suspensions and expulsions by administrators.

My friends, these are challenging cases, no doubt. But, we have to get them right. We’ve written about this at length and talked about it forever, but some boards and panels still can’t tell the difference between drunk sex and a policy violation. Perhaps the problem stems from weak policy, insufficient training or the futility of the panel model. Regardless, we need to fix it.

It probably stems from the fact that there is no precedent of the Department of Education investigating schools for failing to provide due process to the wrongly accused. It probably also has something to do with the pervasive culture of gynocentrism, sexism, and misandry that we find throughout higher education, especially as these phenomena intersect with issues of sex and consent.

The customs and practices of the field of higher education have adopted, as a common policy formulation, that sexual actions with a person the respondent knows to be incapacitated, or should know to be incapacitated by alcohol, drugs, sleep, etc., is prohibited.

Note the word in bold: incapacitated. That is the damning criterion required for finding a student guilty (“in violation,” as administrators say) for sexual assault involving drugs or alcohol. Not “under the influence.” Not “intoxicated.” Not “insert fuzzy word here so we can expand the definition of rape beyond all reason and railroad as many young men as possible.” No, none of these words will do. The correct word is incapacitation.

Are you listening, Leah Baker? Take Sokolow’s notes to your next sex education class and stop teaching students to falsely accuse men of rape.

But, in a recent case, the campus policy stated that intoxication creates an inability to consent. Thus, in any situation in which a male student and a female student have sex, and both are intoxicated, this college will commit an act of gender discrimination by only charging one of them.

If both are intoxicated, they both did the same thing to each other. Why should only the male be charged if both students behave in ways defined as prohibited by the policy? I’m not suggesting we charge both. Surely, every drunken sexual hook-up is not a punishable offense, especially if the parties know what they did and liked it.

Indeed, why should only the male be charged when both sexual partners did the exact same thing? What reason, other than sex discrimination?

Part of me wants to get Sokolow in a room and let him have it.

“How could you not have known that this was going to happen?”

“Were you totally blind to the world around you?”

People like me have been telling people like him this for as long as he has been throwing caution to the wind and ignoring us.

But we have to give him some credit. He is beginning to look beyond tunnel vision and let the light in. He is taking the first step (of many that are required) to repair the damage caused by the culture he helped prop up.

He is also proving that he is not entirely set in his ways. And that’s more than we can say for a lot of people who work in higher education. I look forward to – and expect – Sokolow’s further progress in this matter. And I hope you do too.

Jonathan Taylor
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Jonathan Taylor

Jonathan is Title IX For All's founder, editor, web designer, and database developer. Hailing from Texas, he makes a mean red beans n' rice and is always interested to learn new things.
Jonathan Taylor
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About the Author

Jonathan Taylor Jonathan is Title IX For All's founder, editor, web designer, and database developer. Hailing from Texas, he makes a mean red beans n' rice and is always interested to learn new things.

Comments (16)

  1. Brett Sokolow’s position mirrors COTWA’s: http://www.cotwa.info/2014/02/tara-culp-ressler-when-man-and-woman.html To me, this was common sense and fair. The feminists did not agree.

    Few have been more critical of Sokolow than me, but he’s more complicated, more rational, than I once thought. He has actually testified for a wrongly accused man in a court case; he’s told colleges they are going overboard in prosecuting men — http://www.cotwa.info/2012/04/brett-sokolow-colleges-now-are.html; and he’s been unfairly branded as a “rape apologist,” which is a badge of honor for someone in his position — http://www.cotwa.info/2013/08/this-is-how-bad-it-is-on-american.html.

    Are we noticing a trend here? Just a few weeks ago, RAINN was sounding like COTWA, remember? http://www.cotwa.info/2014/03/rainn-deserves-our-support.html And the feminists had a conniption about their position.

    So now the feminists can denounce COTWA, RAINN, and Brett Sokolow.

    My goodness, when are people going to realize how extreme these folks are?

    • It’s noticeable progress, to be sure. It will still take quite some time for these ideas to reach critical mass. I’d say another 10-15 years. But as far away as that is, it’s great that we can still see the small steps of progress. I never thought I’d see the day when RAINN would come out swinging against the ideology of rape culture/Feminism. But here we are.

      • Isn’t it refreshing that organizations with actual responsibility for these matters — RAINN and ATIXA — are attempting to be rational and fair? This is in contrast to the feminist ideologues who have no responsibility and who pump out gender-divisive tripe for progressive on-line sites.

        These recent developments are not isolated. I’ve long cited Sokolow and RAINN for other points where I think they are right on the money. I disagree with Sokolow on some important things, but it’s not fair to demonize him. He is operating in good faith.

        I do find it amusing that some ideologues consider my site a “hate site,” but they can’t point out any actual hate. I also find it amusing that I’ve been blasted by the usual suspects for my views on “rape culture,” but RAINN denounced “rape culture” in stronger terms than I ever could. And now Sokolow has made the point about mutually drunken sex much better than I could.

  2. ManUpManDown

    I find it odd that the link to Sokolow’s letter in the Men’sRights subreddit was deleted along with, it appears, PH’s account. What gives?

  3. Perhaps I have not changed my position, am not evolving, or re-evaluating my beliefs? Perhaps I have always fought, sometimes quietly and sometimes publicly, for the right outcome in every case? Perhaps, some of you have jumped to conclusions based on limited information or glimpses of a whole lifetime of work captured in one article or comment? Perhaps I did not write the DCL or have any input whatsoever into it? What if I don’t really run the entire rape industrial complex and am not partisan, but fight for clarity and compliance in difficult cases that are probably more complex than simple labels can describe? What if I’ve helped hundreds if not thousands of victims to some measure of justice, and at the same time prevented the suspension and expulsions of dozens of students who did not do what they were accused of? What would you make of me then?


    • “Perhaps” is such a magic word. I know that you didn’t write the DCL. But you knew that schools were using the preponderance standard for a very long time before the DCL even came to public light. Pierce and I – and many others as well – will maintain that this is inappropriate for administrative settings when investigating sexual assault. The vague and broad definitions of sexual misconduct are, in our perspective, merely another layer of the problem, rather than the core of the problem. Your statements in a Chronicle of Higher Ed article a while back in support of the preponderance standard call into question how much you are fighting for the right outcome in each case.

      Furthermore, many, many people believe that it is inappropriate for schools to be arbitrary authorities on whether or not such a felony crime occurred, and that they should defer these matters to the police first and foremost. Schools – as the public are widely aware – do not have the investigative or prosecutorial power of the criminal justice system. There is much in favor of the argument that they cannot mete out even an approximation of impartial, professional, and fair justice – no matter how much they or others want them to.

      Truth be told, Brett, I don’t care whether you are a Feminist or MRA, or MHRA, or whatever. And I’ll grant you the admission that I don’t know everything about you. Pierce and I have already acknowledged that there is more to you than many others involved in such affairs. I’m open to publicly acknowledging what more you have to show the world in this regard, if you – perhaps – have more to show us.

      • I completely agree with Jon and I can say that the vast majority also do on the point of sexual assault and rape victims. When you look at the sheer amount of false accusations that have been made up to deliberately damage the reputation others, with all the anonymous reporting systems which are completely open to abuse and malicious abuse we have seen where things have gone wrong. Look at the amount of times hysteria and ignorance has pressured school administration into the wrong action to be taken it’s clear they are unprepared to handle any investigation. The investigation should always be handled only by the police who believe in something called evidence, not hearsay, not the local hysterical feminist groups, not the local intranet or university chat but real evidence. Allowing the college to have any part in the process allows the process to be used as a weapon. Keep any genuine case that is raised completely confidential pass it to the police who will do the same and when they find it was just a vindictive attempt to blacken someone’s name who is innocent no damage has been done. You only have to look at the fact that in a lot of campuses in schools and colleges in the US we have feminist groups allowed to exist but men’s rights groups that exist to support men in exactly the same way have been banned. It demonstrates the massive bias that exists at the administration level and again another reason why they should not be involved in any big decisions.

    • “What if I . . . am not partisan, but fight for clarity and compliance in difficult cases that are probably more complex than simple labels can describe?”

      Shoot me, but I think that’s fair to say about him, and I think I’ve been wrong about him. Maybe I’ve evolved or maybe I’ve turned into a congenital idiot, but Mr. Sokolow deserves a lot of credit for the work he does on behalf of sexual assault victims, and the wrongly accused. (Although the whole “sexual coercion” thing involving unreasonable verbal or emotional pressuring is legally vapid: http://www.cotwa.info/2012/03/legal-infirmities-to-punishing-sexual.html)

  4. If you assume lecturing at me will change my views, Jonathan, then consider me reformed. But, mischaracterizing me simply impedes my ability to help as many people as I could, and blocks people from seeking me out as a powerful ally because they only see your myopic demonizations. If that advances your goals, have it your way.

    • In all sincerity, I fail to see the mischaracterization. You didn’t write the DCL, but you promoted the preponderance standard – which is arguably the worst part of the DCL – publicly and repeatedly. You speak as if laws and policies are separate from the culture that creates and enforces them. No, you didn’t create the DCL. But you fostered the culture behind it.

      I wouldn’t tell people to turn away from your help. As I said, you have some good elements to you. But I won’t let that keep me from criticizing you where necessary, either. The preponderance standard has to go, and people like you have to stop supporting it. Without that, there’s only so much help you can give the wrongly accused.

      Because in many of these cases, it doesn’t matter what the definition of sexual assault is if the standard of evidence is so low that you don’t need any evidence at all.

  5. I’ve never convinced a Republican to become a Democrat, or a Democrat to become a Republican. My reasoning for supporting the preponderance standard is on the record. A debate is futile. What I will offer though, is my longstanding commitment to make sure that it is applied correctly, by well-trained professionals, who know and steadfastly adhere to the preponderance’s maxim, 50% or less, and the accused is not in violation. 50% or more, and he or she is in violation of policy. The subjectivity comes in what some people think creates 50%+, and there, solid policy (like the kind that started this thread) and criteria-driven training are the best tools to prevent unfairness to any student.

    • I’m aware of your reasons, and agree that a debate is futile.

      I am 100% certain that you will continue to make sure that administrators apply that toss of the coin as consistently as possible when deciding whether or not to wreck the life of someone accused of sexual misconduct in those he said/she said cases. And you are certain that people like myself, FIRE, and others will continue to argue that a toss of a coin is nowhere near substantive due process.

      The only thing left is to see how this debate plays out over the next 10-20 years. Vae victis, and all that kind of thing.

    • Malcolm James

      I’m not sure how you can put percentages to degrees of certainty on whether something happened, particularly something which is as dependent on context and interpretation as sexual assault and where there are no witnesses. As far as I can see there are the following categories:

      1. Absolutely sure the accused did/did not do what they are accused of (beyond reasonable doubt);
      2. Pretty sure the accused did/did not do what they are accused of, even if you have a few nagging doubts (clear and convincing evidence);
      3. Don’t have much of a clue what happened.

      How you can say with any degree of certainty that in one case it is 55% probable that the accused committed the offence and in another only 45% I don’t know. However, I am fairly sure that with the preponderance of the evidence standard panellists will tend to fall into two categories;

      1. Not prepared to convict unless they are far more than 50% certain the accused is guilty;
      2. Ideologues for whom the accused is guilty simply by virute of accusation.

  6. It took me a second, but then I remembered where I knew the name Brett Sokolow from- “Brett Sokolow is a rapist” was written on a wall at the library at William and Mary in the early 90s. He just might have an ax to grind on the subject


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