There is no question that there are sexual predators on college campuses, or that some colleges let them get away with raps on the knuckles for sexual assault or worse. There is also little question, though various parties and activists deny it, that what constitutes genuine sexual assault and even rape has been so thoroughly politicized and muddled by irresponsible rhetoric, dubious statistics and cynical political maneuvering that addressing the problem of actual campus sexual assault is becoming impossible without harming, indeed destroying, the innocent in some cases.
At Stanford, women are rallying for a more stringent process and harsher punishment after student Leah Francis protested in an e-mail to the campus that she had been “forcibly raped” by a fellow student and he was permitted to graduate. Of course, Stanford didn’t find the she had been raped: her assailant was found guilty of sexual assault. The loose use of “rape” to describe sexual assault for political purposes is one of the reasons universities seem incapable of finding a satisfactory balance in handling such cases. At the risk of getting ahead of the post, I would say this: if it is alleged to be rape, then turn the matter over to the police and the justice system. Schools are not allowed to use internal procedures to investigate and punish murder; it makes no sense to permit them to do so with the serious crime of rape. The fact that the standards of proof and the requirements of due process are less stringent in a campus procedure is what simultaneously leads to inadequate sanctions for the guilty and railroading of the innocent. The solution to this problem has always been available: treat allegations of campus rape like any other kind of rape.
Unfortunately, colleges are often in thrall to the political agendas of feminists and their allies, so “rape” can mean many things, as can “sexual assault.” In the casual, morality-free sexual atmosphere now not merely tolerated but nurtured on college campuses, lines of consent are blurred, and missteps are inevitable. At the same time, the permissive sexual environment is a playground for predators, exploiters and manipulators. How are the genuinely culpable sexual assailants to be distinguished from the clumsy, the confused, the misled, or the drunk and overly aroused?
The answer is: with great difficulty. The principles of American justice and Constitutional law give the benefit of the doubt to the accused. Sexual politics, in contrast, which is among the Democratic Party’s current weapons of choice, demand that the campus system favor the accusers, who are almost always female. That’s a recipe for injustice no matter how you look at it. And injustice is what we have.
The problem has been exacerbated, as predicted, by the Obama Administration Department of Education’s April 4, 2011, “Dear Colleague” letter , which requires colleges and universities that accept federal funds to utilize the “preponderance of the evidence” standard of proof when adjudicating sexual misconduct cases on campus, as opposed to a “beyond a reasonable doubt” standard. What this means, in essence, is that a student can be deprived of his education and be tarred as a sexual felon in an investigation, prosecution and judicial determination by those untrained in legal process and unconstrained by established standards of fairness.
As Joe Cohn of the Foundation for Individual Rights in Education wrote at the Volokh Conspiracy:
“Colleges decide for themselves who will preside over these hearings and serve as fact finders. In some instances it’s a panel of faculty, students, and/or administrators, the last of whom may have a powerful incentive to come to the conclusion that is most convenient for the institution. (In the real court system, we are very careful to avoid any hint of this bias from our judges and juries.) Even worse, some colleges have a single administrator designated to serve as both judge and jury.
Similarly, the parties to these hearings frequently have no right to counsel—even if they are able to pay for representation. Neither party has the benefit of discovery, and the rules of evidence don’t apply. Hearsay and even irrelevant “evidence” are regularly considered. Parties are usually not placed under oath and may not be subject to discipline if they lie.
Unless and until schools decide en masse to change such kangaroo-court type procedures, which is highly unlikely, requiring the preponderance of the evidence standard only diminishes the reliability of campus hearings further. Indeed, for all practical purposes, the standard of evidence is the only procedural “safeguard” an accused student is likely to receive. When what is essentially a coin toss on credibility is all that stands between a student and the end of his or her academic career—an accurate description of the stakes and the odds in college tribunals adjudicating claims of sexual assault by using the preponderance standard—injustice isn’t just a realistic possibility. It becomes predictable”
Thus at Occidental College, a student was found “responsible” for sexual assault despite the fact that police refused to charge him with any crime and text message evidence indicates that both parties consented to having sex and were thoroughly intoxicated. Occidental professor Danielle Dirks, according to the accuser, counseled her to register sexual assault charges against her sex partner because he “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’” Occidental’s investigation report revealed that text messages between the alleged sexual assailant and his accuser leading up to the sexual encounter included the accuser asking the accused, “do you have a condom,” telling another friend “I’m going to have sex now”, and, in an exchange spanning 24 minutes, coordinating with the student eventually accused of rape to sneak out of the dorm and go to his dorm for a roll in the hay.
After a hearing in which the accused student was unable to meaningfully cross-examine his accuser, the Occidental “adjudicator” found that it was more likely than not that the accuser “engaged in conduct and made statements that would indicate she consented to sexual intercourse,” but since the accuser was “incapacitated” by alcohol, her consent was invalid. Of course, it was also true that her “rapist” was similarly incapacitated: applying the standard equally to male and female would require the conclusion that the two students raped each other. Never mind. The “preponderance of evidence” standard of proof was enough to have the accused expelled.
At Duke, Australian transfer student Lewis McLeod was treated even worse, not the least of which was the fact that his name was released. McLoed was expelled, lost a promised Wall Street job, and may yet be forced to leave the country after another alcohol fueled sexual encounter with a female student that began with consensual sex and ended with the woman weeping, at which point the encounter ended. Not soon enough, said Duke, violating its own published standards. Starting with this case, no longer does a female have to say “no” for continued sexual activity by the male to constitute rape. Now a woman has to say “yes,” verbally, regardless of her actions, or lack of consent to sex will be presumed due to intoxication.
By simply pointing out (albeit with his trademark contempt for modern liberalism, most appropriate in this instance) this anti-male, anti-democratic, kangaroo court approach to sexual assault allegations at some colleges and the Obama administration’s role in encouraging it, conservative columnist George Will found himself labelled an apologist for rape. The St. Louis Post Dispatch dropped Will’s column, and “apologized” to its readers for scalding their tender eyeballs with legitimate criticism of feminist bullying, campus cowardice, and Obama administration pandering to women. The Chicago Tribune refused to run the column: yes, news media bias and ideological indoctrination extends to outright opinion censorship now. But then, as Hillary Clinton reminds us, “we cannot let a minority of people hold a viewpoint” that the self-declared majority finds offensive…even in an opinion column. Even if the viewpoint is accurate and true.
Sexual assault on campus is a real problem, and George Will did not suggest otherwise.There is witch hunt on, but the witches are real: women who are victims of sexual assault from fellow students, and many are, need to be protected. Well, that’s what the legal system is for. Campuses are too steeped in bias and cowardice to be fair, and now, for purely political motives like absolutely everything this amateurish, inept government does, the Obama administration is trying to use the threat of lost funding to recruit them in its “war on women” campaign strategy. If universities were ever fit to be trusted with adjudicating such accusations, the intervention of the government to encourage pro-accuser bias has made trust impossible. Rape and sexual assault are crimes, and accusations involving them should be assessed by the standards society uses in crimes, by professionals, not campus “gender studies” vigilantes with agendas, giving equal due process to both parties.
Graphic: Top News