He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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United States v. Dierks

Docket: 18-2374

Opinion Date: October 21, 2020

Judge: Kobes

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for three counts of transmitting a threatening communication in interstate commerce based on a series of tweets he directed at United States Senator Joni Ernst. The court held that the evidence was sufficient to support the conviction where defendant's admission, the threatening content of his tweets, and the warning from the police officer were enough to allow a reasonable jury to find that he intended his tweets as threats or knew they would be viewed that way. The court also held that the district court should have required both a subjective finding of knowledge or intent and also an objective finding that the communication was threatening. Nevertheless, defendant's tweets were objectively threatening and it was clear beyond a reasonable doubt that a rational jury would have found defendants guilty absent that error. Finally, the court held that the district court did not err by permitting testimony from an officer about the meaning of the internet slang used in the tweets, and in refusing to admit an exculpatory tweet where it was not contemporaneous enough with his charged tweets.