Breaking: Guilty until Proven Innocent: Biden Title IX Changes Mean Return to ‘Dark Ages’ for Falsely Accused Students

While the woman who'd accused him of rape appeared before a Columbia University panel in June 2017, Ben Feibleman was in another room watching it on Zoom.

Feibleman was not allowed to cross-examine his accuser during the hearing to determine if he would be expelled from the school, potentially scarring his personal and professional life permanently. He wasn't even allowed to be in the same room with her.

During the hearing, Feibleman was also barred from discussing a medical report that found his accuser was likely not impaired or unable to consent to sexual activity the night of the alleged assault. He was barred from discussing his accuser's behavior that he said eventually caused her friends to doubt her. If Feibleman mentioned any of it, he'd be removed from the hearing.

Feibleman's written statement to the three-member hearing panel was heavily redacted, according to court records. The panel took no testimony. Members refused to ask questions of Feibleman or his accuser that Feibleman had repeatedly begged them to ask about evidence he'd submitted in his favor — hundreds of photos, videos, and a damning audio recording.

And then the panel found Feibleman guilty. He was expelled and denied his diploma.

"Nobody had any interest in my version of events," Feibleman told National Review.

Feibleman's experience with a less-than-fair quasi-judicial university hearing was not unique in the years after the Obama administration issued Title IX guidance documents directing the nation's colleges and universities to crack down on sexual harassment and sexual violence cases on and off campus. The Obama-era guidance essentially tipped the scales in the direction of the accusers, typically women, with millions of dollars of federal funding for schools on the line.

Schools were directed to use a preponderance-of-evidence standard — the lowest standard of proof — in sexual-assault cases under Title IX, which generally bars sex-based discrimination. They were discouraged from allowing the parties to cross-examine one another, on the assumption that it could be "traumatic or intimidating" for an alleged victim. Accused students had no right to a live hearing, or to even see the evidence against them. Schools were allowed to use single-investigator models in Title IX cases, in which one person assumes the role of investigator, prosecutor, judge, and jury.

The reasoning: Offering too many due-process rights to alleged perpetrators could make real victims hesitant to come forward. Falsely-accused students with fewer opportunities to defend themselves were simply collateral damage in this victim-centric model.

During the Trump administration, former secretary of education Betsy DeVos pushed back, issuing more-balanced regulations requiring schools to offer basic due-process rights to both the accuser and the accused in sex-assault cases. Accused students were presumed innocent until proven guilty. They had the right to a live hearing with cross-examination and the right to see the evidence. Schools could again use a stronger clear-and-convincing standard of evidence.

But in late June, President Joe Biden's administration proposed sweeping new regulations that would roll back many of those protections, fulfilling a promise he'd made during his campaign. The right to a live hearing? Gone under the Biden proposal. The right to cross-examination? Also gone. Schools could launch sexual-assault investigations without a formal complaint. The single-investigator model would be back on the table. Instead of turning over their evidence, investigators could simply offer the parties a written summary of the "relevant" evidence.

"You're going back to the dark ages, in my view," said Eric Rosenberg, an Ohio-based lawyer who specializes in defending students falsely accused of Title IX sexual-assault violations.

"It seems like I'm going back in time to the Obama-era rules," said Kimberly Lau, who is Feibleman's lawyer.

If Biden's proposed regulations are approved after a 60-day comment period, students like Feibleman, who claim they have been falsely accused of sexual assault, will have a more difficult time fighting off allegations at colleges and universities that are often clearly motivated to find them guilty.

And most students who are accused of sexual violence don't have as much hard evidence of their innocence as did Feibleman, a journalism student trained to document, document, document,  who seemingly documented the whole evening he spent with his accuser.

More than 700 photographs Feibleman shot that night showed that his accuser was not, as she would claim, stumbling drunk or unable to walk without assistance. Rather, the photos showed her playfully and repeatedly climbing a water tower on top of a New York City apartment building that night, dangling her feet off the edge, performing acrobatic tricks, and posing for pictures.

About an hour and a half after her last drink, "she's doing a Cirque du Soleil routine on top of a water tower, above a 30-foot ladder on a rooftop in the dark. And then she does a backflip off the water tower to catch the ladder," said Feibleman, who acted as the unofficial class photographer that year. He photographed his accuser doing the backwards roll off the tower.

And an audio recording Feibleman made that night in his accuser's room revealed that she repeatedly begged Feibleman for sex, and he repeatedly rebuffed her. A transcription of the audio indicates that despite her begging, Feibleman never had sex with his accuser.

"This is a girl who was on tape begging for sex, who accused a guy who rejected her of rape, and the school didn't have the courage to tell her, 'No,'" Feibleman said.

A Perfect-Storm Nightmare

Originally from Oregon, Feibleman was a 33-year-old Marine Corps veteran who had served in Iraq when he enrolled at Columbia University for a one-year graduate program in journalism in 2016. Feibleman describes himself as a "staunch liberal" who had in previous years urged Columbia to do more to end campus sexual assaults.

He said he initially met his accuser, 22, during orientation, and she sat in front of him in at least one class. They were both still relatively new students in early October, when they both attended a journalism reception inside the school's Pulitzer Hall.

According to a lawsuit Feibleman filed, he was there to meet up with classmates to brainstorm ideas for a reporting class. His accuser was there drinking wine, grousing with classmates about problems she was having with her long-distance boyfriend, and planning their breakup.

During the reception, Feibleman and the woman flirted, and they eventually left together. Security-camera footage showed the woman walking normally as they left, according to a lawsuit. Over the next several hours, they went to a classmate's apartment, stopped for pizza and beer, and made out and played on the rooftop water tower, the lawsuit said.

It was around midnight when, back in their classmate's apartment, Feibleman offered to walk the woman home, with no complaints or concerns from their classmates, the lawsuit states. Back at her apartment, Feibleman chatted with the woman and her roommate. Feibleman eventually carried the woman to her bed, where they made out some more.

Feibleman said he started growing concerned when the woman began demanding sex from him. When he tried to leave, he said, she would cry. He said he worried that "her roommate is going to come in as soon as I leave and find a sobbing, half-naked white girl after the weird Marine from school just left her bedroom." To protect himself, he recorded audio of the encounter on his phone. "I just did not feel safe with this girl," he said of that point in the night.

"You know you want it," the woman told Feibleman, according to a transcript of the encounter. "Please have sex with me. Please. I know you want to," she said. All told, she begged for sex at least 29 times during the half-hour recording.

At one point in the recording, the woman does seem confused about where she was and what had happened, as if she suddenly emerged from a blackout. "We're in my apartment, right?" she said, according to the transcript. But she continued to beg Feiblman for sex. "I don't get why you won't do it now. I know you want to. Please. Please. Ben, I want you," she said. But Feibleman refused her.

"If you really want me, you're gonna want me tomorrow," Feibleman told her, according to the transcript, adding, "In the morning, you're gonna thank me for leaving."

At 2:10 a.m., Feibleman finally left. But the woman did not thank him for leaving. Instead, she told friends he'd assaulted her, and she filed a complaint with the university.

The accusation came about a month before the 2016 presidential election, and about the same time as the release of the Access Hollywood tape, in which Donald Trump bragged about his ability to assault women. And Columbia had already received bad press for its handling of the rape allegations of another student, who then carried a mattress around campus in protest.

"The timing of this," Feibleman said, "could not have been worse."

Feibleman said he started hearing rumors about the allegations. Investigators interviewed the accuser and other witnesses, but they didn't interview Feibleman until late November. He told them that he was the victim, but he said they had no interest in his side of the story, he said.

"They were just building a case for conviction, and they thought they had this one in the bag," Feibleman said. But he had evidence in his favor, a lot of it, and he wasn't a young student who simply trusted that the university would do the right thing.

As a plaintiff, "I was a perfect-storm nightmare for them," Feibleman said.

Miscommunication about Consent

The disciplinary hearing for Feibleman and his accuser — she was technically accused of assaulting him, too — didn't occur until the following June, after they had already graduated from the journalism program. In the view of the Title IX investigators, because they believed Feibleman's accuser was intoxicated, it didn't matter that he didn't have intercourse with her. She couldn't consent to any sexual activity in which they'd mutually engaged that night.

Foreshadowing the expected outcome of the case, the university informed Feibleman that while it would award his accuser her diploma, his was being withheld.

Feibleman said the hearing was conducted in a dedicated space on campus for student-conduct meetings. Both sides got to make opening and closing statements, and answered questions posed by the three members of the hearing panel. But the panelists had few questions.

"I wasn't allowed to ask her questions," Feibleman said. "My only hail-Mary pass was to beg [the panel members] to ask them the most basic of questions, and they refused."

Sexual-assault cases, like Feibleman's, often come down to which party is more credible, said Lau, Feibleman's lawyer. "Who do you believe more? Generally speaking there are no other witnesses in the room," she said. "And more often than not alcohol is involved."

In a case in which establishing the credibility of the parties is vital, the ability to cross-examine an accuser is critical, Lau said. "And that process was so hindered, because Columbia didn't allow students to ask questions of each other," she said of Feibleman's case.

After the Obama-era guidance was released in 2011, schools built up their Title IX bureaucracies, and allegations of sexual misconduct on campus skyrocketed. "As the number of allegations increased, we saw more and more allegations that are false, or completely unsupported by the preponderance of the evidence," said Rosenberg, the Ohio Title IX lawyer.

Lau said she's noticed some modest improvements under the DeVos regulations. Students are guaranteed hearings, and their advisers are allowed to ask questions at the hearings. Students have more of an ability to be heard, she said. But even under the DeVos rules, the same administrators are making decisions, and schools still have a lot of discretion over the hearings and what questions are asked. "By and large, I don't think I've noticed that much of a difference" since the DeVos rules went into effect in August 2020, she said.

Lau, who represents both accusers and the accused, said schools are still often motivated to favor accusers during internal hearings, and to let the courts to reverse them. That way the schools can maintain their public image of strongly protecting sexual-assault victims, she said.

Saif Khan, an Afghan refugee and neuroscience student who was kicked out of Yale after he was accused in 2015 of sexual assault — falsely, he says — told National Review that he learned through his ordeal that universities and their Title IX offices don't really have the interests of accusers or the accused parties at heart. In his case, he said, "Yale University was not weighing what is the correct thing to do, not weighing what is the fair thing to do. They didn't actually even care about feminist issues. They don't care about due process. To them, it is about just managing liability."

Khan was acquitted of wrongdoing in a criminal case, but the university gave him the boot anyway after an internal hearing, during which he was not allowed to cross-examine witnesses or introduce evidence — security-camera footage, messaging logs, DNA evidence — that he says would have exonerated him. In 2019, Khan filed a $110 million defamation suit against Yale and several of its employees. The Connecticut Supreme Court is now considering whether Khan's accuser should be entitled to absolute immunity, shielding her from being sued.

Khan does not believe that universities have business trying to adjudicate any alleged crimes. Universities simply lack the expertise, and their primary motivation isn't justice — it's protecting themselves.

"We can shroud it as much as possible with elements that would make it appear as if this is judicial, but at the heart of it is, colleges shouldn't have a rape panel," he said. "Why not have a murder panel? Why not have a tax-evasion panel? Why not have a panel for evading corn-subsidy laws? It seems absurd. Why is a college adjudicating a crime? If a crime has happened, go to the police."

Not a System Designed to Help Students

In May 2019, just shy of two years after he was expelled from Columbia, Feibleman filed a 108-page federal lawsuit against the university. Feibleman had been "villainized" by Columbia's decision, his fledgling journalism career had been ruined, and he had not been able to publicly defend himself from the accusations, the lawsuit declared.

"I sued them for $25 million. I do not toil," Feibleman told National Review.

The evidence he had for his version of events was strong. His accuser did not appear incapacitated, as she claimed. And while both parties had participated in sexual activity, Feibleman had steadfastly refused to have sex with the woman, despite her begging.

"It's very rare that you have audio recording of a girl begging for sex, and getting rejected over and over again," he said, adding that if the encounter hadn't been documented, "nobody would believe that, because we're not conditioned to even think that would happen. But here it is."

In December 2020, as Biden was preparing to be sworn in as president with a promise to roll back sexual-assault protections for accused parties, Columbia University settled with Feibleman.

Under terms of the agreement, Feibleman can't disclose the settlement amount.

"I can't tell you how many millions of dollars they paid me, but it was somewhere between zero and 25," he said.

But, he told National Review, he's no longer concerned about losing his journalism career — he has no need to get up for work to earn a living. And as an act of defiance, he purchased a Lamborghini Aventador, which has a base price of several hundred thousand dollars. The car no longer runs. "I drove it into the dirt to make a point," he said.

In an email to National Review, a Columbia University spokesman said that despite the settlement, "Columbia’s disciplinary findings remain unchanged." However, Feibleman was awarded his degree, and his record has been "updated to reflect that he is an alumnus in good standing with all associated rights and privileges," the spokesman said.

A lawyer for Feibleman's accuser told the New York Times that she stands by her account of the night.

A former Columbia journalism student, a one-time classmate of both Feibleman and his accuser, told National Review she had a hard time believing the allegation when she first heard it. The woman, who asked that her name not be published because of the political atmosphere around campus sexual violence, said she’s always found Feibleman to be respectful of women.

She said the allegation initially divided the class – some students believed Feibleman, some believed his accuser – but she now believes the evidence clearly points to Feibleman's innocence. She said it's ironic that the scandal originated in journalism school, where students are taught to value documented evidence, transparency, and holding powerful institutions accountable.

"It makes me furious to think of how he was treated, and just the toll this has taken on him while he had to wait for some degree of justice," the former classmate said. "The evidence, from my perspective, is crystal clear in that he did not commit rape. But unfortunately, Columbia seemed to care more about its reputation than about being fair."

Another former classmate said he initially believed Feibleman's accuser, but as more evidence came to light, he too came to believe that Feibleman is "100 percent" innocent. "That's clear as day," said the classmate, who was interviewed by Columbia investigators prior the 2017 hearing.

The financial hit to the university, he said, should make the school's leaders slow down in the future, get their facts straight, and offer accused students the chance to defend themselves.

"Innocent until proven guilty shouldn't just exist in the courtroom," the former classmate said. "That needs to extend to these unofficial, non-legal entities as well."

Feibleman said his case and others show that the law is on the side of providing due-process rights to students in Title IX cases. Despite his experience, Feibleman said the investigators and administrators he encountered in Columbia's Title IX bureaucracy are "not evil."

"They're regular people who think they're doing the right thing," he said, "and when they bend the rules just a little bit to make sure things go the right way, they see themselves as the good guy. But that cascades."

Most of the people involved in his case are no longer with Columbia, Feibleman said.

"Every single person who touches this process comes out broken," he said. "This is not a system designed to help people, and it's not working."

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Guilty until Proven Innocent: Biden Title IX Changes Mean Return to ‘Dark Ages’ for Falsely Accused Students

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