In light of the divided jury in the #Weinstein case, I want to share an example of the kind of "evidence" that adjudicators get hung up on in sexual assault cases. This example comes from my dissertation fieldwork, during which I studied one university's Title IX process.

Sofia (a pseudonym) found herself in the middle of a Title IX case after someone else reported that she had been raped while incapacitated. She had no recollection of the event, but there was a lot of evidence that a rape had occurred.

The university had a security video of Sofia's rapist assisting her to his dorm room. She was visibly too inebriated to walk without help. There was also a witness statement from a woman who had to hold Sofia up while she used the toilet. She kept falling off on her own.

Sofia had forensic evidence from a rape kit that--if tested--would have confirmed that her rapist's genetic material was found on her body. But, in this case, that wasn't necessary since her rapist never denied that he had sexual contact with her.

So the elements of the case were there: sexual contact occurred and Sofia was clearly too incapacitated to consent. It should have been an easy decision. The rapist is found responsible for a sexual misconduct violation and either suspended or expelled, per campus policy.

But the investigators got caught up on one small detail. The rapist insisted that Sofia took off her own earrings when she got to his room, which he took as an indicator that she consented to sexual activity.

It's worth pointing out that there are a lot of reasons Sofia might have taken off her earrings other than preparing for sex. They might have been hurting. She might have thought the plan was to go to sleep. People take off clothes sometimes and that's not consent.

Not to mention that even if someone who is incapacitated from alcohol initiates sex, that doesn't make them any more capable of consent. They lack the ability to make decisions for themselves.

The investigators did not seek out corroboration that the rapist's story about the earrings was even true. It was taken on faith and it became the center of the decision made.

Ultimately, the investigators couldn't make sense of that one detail in what they saw as the the otherwise consistent story about the rape of an incapacitated woman. So they decided they had "insufficient evidence" and dropped the case.

Sofia's story was far from the only one like this I heard during my research. One victim's case ended because she had deleted 13 texts out of 900 pages of text messages with an abusive boyfriend. Those 13 were deemed irrelevant, but the investigator stopped trusting her.

Another brought her boyfriend to her meetings with the investigator. Despite the rapist's confession, the investigator assumed the victim felt pressured by her boyfriend to label her experience as assault instead of cheating and recommended the most lenient sanction available.

When this kind of evidence was missing, investigators would do things like make a fake Instagram account to follow a victim and look for inconsistencies in her story online. They actively sought out reasons to doubt victims and believe perpetrators.

(Perhaps this isn't surprising, but in my year in the field, I never saw any evidence of an investigator seeking out additional evidence to confirm a victim's story of sexual violence.)

There are a lot of reasons Title IX cases should be easier than criminal justice cases. Campuses use a lower burden of proof (usually "more likely than not" instead of "beyond a reasonable doubt"). The adjudicators are trained about stuff like rape myths, unlike juries.

Still, it's common for anyone looking at a rape case to look for any possible reason to dismiss it. Even in the face of plenty of evidence that it occurred. Even if that reason to dismiss is small, irrelevant, or created entirely by the investigator.

There's a perception that rape cases go nowhere because victims can't bring enough evidence to the table. That wasn't what I saw as a researcher. More commonly, the evidence brought by victims was ignored and irrelevant evidence in support of perpetrators dominated.

We need to rethink what should count as evidence in rape cases. It shouldn't be this hard for survivors to be taken seriously when they come forward.