This week, I was interviewed by Danielle Masterson with WHDT World News about my thoughts on how the Trump Administration should handle cases of sexual assault on campus.
Here’s the video and transcription:
Danielle Masterson: Spring practice is just around the corner for football players at Michigan State. But media should not expect much from Coach Mark Dantonio. He’s not scheduled to meet with media, with his team returning to the practice field. It’s a significant departure from previous years and it likely has to do with campus sexual assault. There’s a criminal investigation into an alleged sexual assault involving 3 unidentified MSU football players, and a fourth person from the University. A full title 9 investigation is under weigh. For more on this sensitive topic, we turn to Shan Wu a former federal sex crime prosecutor and current defense attorney for students. Shan, for those who don’t know what is title 9, and how does it govern this sensitive issue?
Shan Wu: Title 9 is the federal law that prohibits discrimination in education based on gender. So most people associate it with its use in University and college sports. Meaning that female teams need to have the same treatment, same equipment, equal access to the playing field as the male teams. But, more recently during the Obama administration grassroots activists persuaded the department of education to utilize title 9 in the area of campus sexual assaults, arguing successfully that if there was an atmosphere of sexual assaults directed primarily at women, that that would cause discrimination in the university environment.
Danielle Masterson: We know that the Obama administration commissioned a task force that made a number of recommendations including how the Department Of Education should enforce Title 9 with regard to sexual assault. But what do we know about how the Trump administration and education secretary Betsy DeVos how they’ll handle it?
Shan Wu: Notably missing from those recommendations is any meaningful guidance about training. There is no real guidance given to how the Universities can train their investigators and their adjudicators. So hopefully, the Trump administration and the new Department Of Education secretary is going to give some real guidance, put some real teeth into those recommendations. By using professional investigators, people with sex crime experience like myself, former prosecutors or detectives to help train the campuses on how they can do competent thorough investigations.
Danielle Masterson: How are the investigations handled right now? Are their um, groups on campus that specifically handle this right now? Or is that something that they are looking into?
Shan Wu: It’s all over the board. They have sometimes the campus police will do it. Sometimes they simply appoint a Title 9 investigator, who usually has no criminal background whatsoever. I’ve prosecuted and investigated hundreds of these kinds of cases. They are among the most difficult cases to do and it does not get any easier on a college campus. They really need to have people that have who have the experience, who have done it before professionally to help protect those students on those campuses.
Danielle Masterson: So there’s no clear direction. Is this more a Department of Justice issue or more of a Department Of Education issue? In your opinion.
Shan Wu: It has turned out to be more of a Department of Education issue. Thee, uh, Office of Civil Rights at the Education Department has really taken the lead on that. It could be a Justice Department issue, not only as a potential Civil Rights issue but more importantly the Justice Department could take the lead and using their criminal expertise and background and giving good guidance, giving good practices about how to train these folks.
Danielle Masterson: Do we expect DeVos to make to make changes to the sexual assault landscape on campus?
Shan Wu: I think it’s too early to know exactly what she will try to do. But unquestionably her mind is open to a fresh look at some of these hot topics about campus sexual assaults. For example, one great controversial issue is what standard to approve to apply. People argued for very high criminal standards beyond reasonable doubt. That’s not gonna happen, doesn’t make any sense. But there is some questions whether the current standard is too lax. But I’ll tell you, it doesn’t matter what standard you use. If the people applying it have no clue how to use it that won’t matter. It really goes back to competency in their training.
Danielle Masterson: And why doesn’t that make sense?
Shan Wu: It doesn’t make sense because, you can tell people all sorts of words, beyond reasonable doubt very convincing. They aren’t judges. The universities take great pride in the fact that these are not legal proceedings. So there are no lawyers usually and there are no judges. They recently started to allow some lawyers, like myself to come in. But they don’t let the lawyer speak. So there’s no legal guidance.
Danielle Masterson: So, if you were to talk to some of these universities what would you suggest?
Shan Wu: I would suggest that they hire people to train both the people who do the investigations, as well as their adjudicators and that they hire the people who have had actual investigating and prosecuting sexual assault cases.
Danielle Masterson: Right now what is this um. How are these sexual assault victims handling this right now and what’s the outlook for them currently?
Shan Wu: The sexual assault victims now are still subject to a very wide variety of treatment. There’s still a lot of complaints that they are treated in a callous manner. And of course, the accused are also complaining a great deal about their treatment. There are more and more lawsuits being brought by students who have been accused, primarily male expelled or suspended, saying these processes simply aren’t confidently run and they aren’t fair.
Right, and it’s so difficult to find, to strike a fair balance because you don’t want to discriminate against someone you know who was possibly sexually assaulted. But then you’ve got to look at the person being accused. Their futures at stake if it didn’t really happen. How do you find that balance?
Shan Wu: That balance can only be struck if people have confidence and faith in the integrity of the system. No judicial system is going to work if the people don’t trust it. If they think its incompetent if they think it’s arbitrary. And the only way to dispense better justice for the victims as well as for those accused is to have a more competent effective system. Then both sides are gonna feel like they got a fair shake. In fact, it may even encourage more reporting at the campuses.
Danielle Masterson: I use Michigan State as a relevant example but unfortunately sexual assault is common on campuses across the nation. What do the national trends look like and what changes in this kind of policy will we see moving forward?
Shan Wu: Well unquestionably there is greater awareness of this issue. So I think one trend is there has been more reporting on it. In terms of where do we see it going, I think where we see it going now is a little bit of a train wreck. The schools have tried to use that general awareness to be more responsive to the reports of the allegations. Where they have fallen down understandably is in how to actually respond. So I called it a train wreck because now you have a situation where the victims are making the complaints still aren’t satisfied. And there’s a growing dissatisfaction of those being accused as well. You add into that mix the Department of Education it has over 200 current investigations on universities looking to as to whether or not they have violated Title 9 by having been incompetent and poorly run proceedings. Really you have the universities caught in this triangulated crossfire and what they really need is people who know what they’re doing. Former prosecutors like me, more sex defense detectives to help to help them sort that out to simply by giving them the right training.
Danielle Masterson: You mentioned that more sexual assaults are being reported. Do you think more people are just coming out to report them or do you think that there is more crimes being committed?
Shan Wu: I think that’s hard to know. I think what most experts agree on is that there’s been a great deal of underreporting, under responsiveness historically from the universities. So it’s a little hard to tell if the numbers we are seeing now indicate that there’s some kind of crime wave that’s occurring or this has simply been a problem that’s been around now for awhile that has not seen the light of the sun.
Danielle Masterson: And we’re gonna leave it there. Former federal crimes sex prosecutor and now student defense attorney Shan Wu. Thank you so much for sharing your insight and joining us out of Washington DC.
Shan Wu: Thank you for having me.