May 15, 2014

Sorry, But No College Or University Should Be Treating Felonies As Disciplinary Matters

If a student murdered another student on campus, would the university keep it in an internal forum? What about if a student robbed a fellow student at gunpoint? Of course not -- and it would be deemed absurd for them to try to do so. The police would be brought in, the suspect arrested, and criminal charges brought. So why are sexual assaults treated differently? And more to the point, why are the accused in such cases denied their constitutional rights in these situations?

As proof of the catastrophic scope of the problem, we are told that one in five college women will be sexually assaulted by the time they graduate. But this figure comes from surveys in which the questions used to measure alcohol- or drug-facilitated sexual assault are worded so broadly as to lump together incapacitation and impairment, and in which most women classified as victims of rape do not believe they were raped and do not report the incident because they don’t think it’s serious enough to report.

Much-publicized personal narratives of sexual assault are likewise plagued by fuzzy definitions, ranging from violent rape to intoxicated sex in which the woman feels she was too drunk to properly consent. A recent letter in The Harvard Crimson from an anonymous student who failed in her quest for redress illustrates these gray areas. The letter describes a drunken encounter in which the woman never said she wanted to stop, only telling the male student to “stop kissing [her] aggressively,” and “obeyed” when he asked her to satisfy him. When the account was posted on Slate, the liberal online publication, even many commenters usually sympathetic to rape accusers felt the man’s behavior sounded boorish but not criminal.

At Yale, as an official memo released last summer reveals, the definition of “non-consensual sex” in disciplinary proceedings is so broad that it includes reciprocating a sexual act without an explicit signal to go ahead — even if you stop immediately when asked to stop. Ironically, this creates a Catch-22, as universities find themselves criticized for insufficiently harsh punishments for nonconsensual sex.

Universities are under strong pressure from activists, backed by the federal government, to use a “preponderance of the evidence” standard in adjudicating sexual assault complaints. This is the lowest legal burden of proof, often defined as meaning that it’s more likely than not that the assault occurred. (Traditionally, disciplinary charges by students have been judged by the higher standard of “clear and convincing evidence.”) But what does that mean in practice, especially in he-said/she-said cases? Since anti-rape activists insist that wrongful accusations are extremely rare (and demand that college investigators and “judges” be trained in that dogma), the goal seems to be a presumption of guilt for any accused student, unless there is strong proof of innocence.

Obviously, this is not a question of sending people to prison. Nonetheless, it means that a student may be expelled from college, with a black mark that will follow him to other schools and places of employment, and in some ways acquire the equivalent of conviction for a very serious crime without any of the safeguards of a trial.

While the media have focused on women’s claims of the universities’ inadequate response to sexual assault complaints, there is also a growing number of lawsuits by male students who say they were railroaded by kangaroo courts. This trend will no doubt continue if schools are strong-armed into a more hard-line approach.

But no matter how tough colleges may get on sexual assault, real victims are also ill-served by having such offenses treated as college disciplinary violations rather than crimes. Emma Sulkowicz, who is suing Columbia University after what she says was a badly botched rape investigation, describes a terrifying, painful, violent attack. If true, the answer is not to kick the perpetrator out of school and leave him free to seek victims elsewhere; it is to put him in jail. Yet Sulkowicz never went to the police, apparently believing the university process would be more victim-friendly.

Victims of sexual assault should be encouraged to report these crimes to law enforcement and document the evidence. While colleges certainly have a role in ensuring student safety, they should not be playing cop or judge — or set themselves up as a morals police regulating non-criminal sexual behavior.

Now think about this.

Some of these cases involve truly violent situations. They belong in the courts, not before some disciplinary tribunal.

Others are he-said/she-said situations involving two students who kinda-sorta consented when they rolled into bed in a judgement-impaired haze induced by alcohol. When the regrets appear, the two students probably need to be referred for some sort of counseling designed to deal with making responsible choices about alcohol. Instead, the girl is classified as an assault victim and the guy is presumed to be a predator who committed a sexual assault -- even if the pair were equally inebriated..

What is worse, however, is that the male student in such instances is denied anything resembling due process. The right to an attorney? He does not have one. The right to confront the main witness against him and cross-examine her? Nope -- doing so is be deemed to be traumatizing and a revictimization. Neutral judges and jury? Nope. And the appellate process is virtually non-existent. Oh, yeah -- the newly dictated standard amounts to "yeah, he probably did what she said."

Perhaps most interesting is that the rush to judgement against the accused -- out of sensitivity to the accuser -- does not even allow for the fact that an examination of the matter by police and prosecutors might come up with a very different conclusion. Consider this case.

A student convicted of sexual assault and banned from campus by a University of North Dakota (UND) tribunal is free to return to school this week. After a year and a half, UND officials have determined that the university’s finding of guilt against student Caleb Warner was “not substantiated” in the face of the evidence. That same evidence led North Dakota law enforcement to charge Warner’s accuser last year with making a false report to law enforcement—a charge for which she is still wanted by the police. UND finally reexamined Warner’s case only after the university’s behavior was exposed by the Foundation for Individual Rights in Education (FIRE), to which Warner had turned for help.

“Using a shamefully low standard of evidence, the University of North Dakota branded Caleb Warner a criminal. Meanwhile, based on the very same evidence, law enforcement officials charged Warner’s accuser with lying to them and issued a warrant for her arrest,” said FIRE President Greg Lukianoff. “Cases like this vividly demonstrate the need for due process and fair procedure on campus, as well as a renewed recognition that fundamental rights are important for both victims and the accused.”

The incident that led to Warner’s punishment took place on the night of December 13, 2009. Sometime before February 9, 2010, Warner’s accuser reported an allegation of sexual assault to the university and the Grand Forks Police Department. UND held a hearing for Warner on February 11, 2010, and informed him on February 16 that he had been found guilty of “Violations of Criminal or Civil Laws, Sexual Assault, and Interference [with members of the university community].” He was banned from campus and suspended from the university for three years.

It took nearly two years for Warner to get his punishment vacated by the school -- despite the fact that his accuser had been indicted for lying about the incident by a grand jury! The school considered itself and its process to be superior to that of the criminal justice system -- and therefore the one deemed the victim in the courts would be held to be a perpetrator in the eyes of the university!

Of course, the application of this differential standard is being mandated by the federal government under the Title IX rules designed to eliminate sex discrimination. The problem is that the result is sex discrimination against men in the implementation. After all, how can two drunks having sex have only one victim -- and why is it that drunk males are perpetrators when their female partners are victims but not the converse? After all, didn't the women have sex with an impaired individual, too? Failure to treat both parties equally is sex discrimination -- the very thing that Title IX is supposed to prevent!

No, colleges and universities need to be out of the sexual assault adjudication business. They cannot be trusted to be even-handed -- nor can they mete out the appropriate punishment for the crime if one has occurred.

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