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July 18 2017

On Reading Campus Assault Dossiers, a Lawyer Asks: Where's the Kangaroo?

by Charlotte Hays

Here is a headline from the Baltimore Sun:

Education Secretary May Undermine Title IX Protections for Campus Sexual Assault Survivors

The column is by Eliza Shultz, and, while we commend Ms. Shultz's efforts to combat sexual assault on the campus of Johns Hopkins University, we can't help noticing that she completely misrepresents what the Trump Education Department is considering.

Education Secretary Betsy DeVos, ironically in light of this headline, may actually restore protections for those accused, sometimes falsely, of sexual assault. Rape, indeed any form of sexual assault, is heinous. We want it punished to the full extent of the law.

Falsely finding somebody guilty of rape because he has not been afforded due process, however, does no good to the accused or the accuser. 

If, as Ms. Schultz alleges, Johns Hopkins failed to take seriously rape allegations before the Obama administration issued guidelines, then that needed to be corrected. We are absolutely with her on the gravity of sexual assault and the need to ensure that allegations are investigated and offenders punished.

One way to promote proper investigations and convictions is for accusers to go to the police, who are more equipped to investigate sexual accusations than campus administrators and tribunals. If a college or university sees young men convicted of sexual offenses in a court of law, you can bet your bottom dollar that that institution would shape up and begin to take allegations seriously.

But instead of urging that legal aurhorities be brought in, the Obama administration had a different approach. It  issued guidelines in the famous "Dear Colleagues" from the Obama administration's Ed Department Office of Civil Rights to college administrators. It promoted guidelines for campuses to handle these accusations that stacked the deck against the accused.

The accused no longer had due process (a cornerstone of Western jurisprudence). As unpleasant as pursuing a complaint against a sexual offender is, the only way to reach a fair verdict is to allow both parties to present a case. KC Johnson explains how the Obama system worked:

Ignoring critics allowed Obama’s OCR to avoid addressing the myriad dubious assumptions, and in some cases outright myths, upon which it relied to construct its one-sided Title IX policy—especially the premise that colleges could dramatically erode due-process protections for accused students without just as dramatically increasing the chances of wrongfully finding them guilty.

Up to now, the OCR mandate that has attracted the most attention is the one letting colleges use the lowest standard of proof (preponderance of the evidence) in campus sexual-assault cases, even as the schools remain free to use a higher standard (beyond a reasonable doubt) for students accused of trivial offenses, such as petty vandalism.

But other OCR stipulations, such as its 2014 assertion that allowing cross-examination of accusers “may perpetuate a hostile environment”—thereby violating Title IX protections—have had an even stronger negative effect. Fearful of negative media or OCR investigations, colleges have scrambled to create disciplinary systems in which students accused of sexual assault are presumed guilty and denied the tools to prove their innocence.

As a California appellate judge remarked during oral argument in a due-process lawsuit: “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”

It looks like DeVos is going to restore protections for both parties in campus assault cases--for the accused, who will be able to defend himself, and for the accuser, who, long term, will be harmed in myriad ways if she lodges a false accusation that wreaks havoc on somebody else's life.

One other quibble with the Baltimore Sun headline: often those who make accusations are termed "survivors" before it has been determined that there was an assault. Before that determination, they are accusers.

If it is determined in a fair and just proceeding that a young man has assaulted a woman, throw the book at him. Jail time, not mere expulsion from school, is the remedy (to the extent that we can use the word remedy in connection with something as heinous as rape). Meanwhile, protections should be restored to both parties. Which is what DeVos seems inclined to do.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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