The Department of Education's infamous 2011 "Dear Colleague" letter might have been the tipping point. There has been a noticeable shift in serious legal scholarship taking issue with the attack on the rights of the presumptively innocent accused of sex offenses on American campuses. The critics of the trend to diminish the rights of the presumptively innocent can no longer be considered outliers.
One of the most prominent voices taking issue is that of Professor Dan Subotnik. Subotnik doesn't shy away from openly talking about the "Groupthink in which white males become the reviled community" on campus. Dan Subotnik, The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System, 45 Akron L. Rev. 883, 891 (2011). Prof. Subotnik pointed out that the Department of Education's "Dear Colleague" letter presents a double-edged sword:
More malefactors will be expelled from schools under this standard, and that is to the good; but would the Duke accused have had any chance of justice under a lower evidentiary standard for complainants that trumpeted the special heinousness of sexual assault? Or under the standard at Princeton where guilt can be found if the woman is merely "under the influence" of alcohol? Or the standard, in effect at Stanford, under which those judging the case are instructed that a "neutral stand" between complainant and accused is tantamount to siding with the abusive partner and that they should be "very, very cautious in in accepting a man's claim that he has been wrongly accused of abuse or violence" because "[t]he great majority of allegations of abuse. . . are substantially accurate"?Id. at 920.
Happily, Prof. Subotnik is not a lone voice crying in the wilderness. Stephen Henrick has written a wonderful law review article called A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses for the Northern Kentucky Law Review, 40 N. Ky. L. Rev. 49 (2013). It is reprinted here, and it is must-reading. Among other things, Henrick notes: "Justifying institutionalized unfairness to a given defendant in the exercise of power because of a perceived need to reform a broader social problem is contrary to the very idea of civilized justice. . . . Even if sexual assault is as underreported as complainant advocates claim, 174 and while recognizing that sexual violence is reprehensible, convicting the innocent to atone for society's sins or to bring about change remains an unjustifiable use of authority and a dangerous judicial precedent." Id. at 87. He also posits:
Critics of changing the present system often argue that instances of false or mistaken accusations are not frequent enough to require colleges to burden meritorious complaints with excessive due process hurdles to overcome. Upon closer examination, such an argument made alongside the claim that sexual violence on campus is grossly underreported contradictorily posits that complainants are very often wrong in claiming they have not been raped, while rarely incorrect in claiming that they have been raped.
Although it is true that society should strive to make justice readily available for rape victims, the argument that alleged victims are rarely incorrect cannot support the current college adjudication system. The most obvious problem is that because the precise rate of false or mistaken reporting is unknowable, the argument has no empirical support. In addition, it is indisputable that false complaints do happen: using OCR's "preponderance of the evidence" standard in determining whether probable cause exists, police concluded in 2010 and 2011 alone that a university complainant makes a false rape allegation more than once per calendar month. Relying on the good faith or accuracy of complaints does not protect the innocent in these situations, regardless of how often they happen.
Id. at 88-89.
In addition, Barclay Sutton Hendrix has written a great piece for the Georgia Law Review: Note, A Feather on One Side, A Brick on the Other: Tilting the Scales Against Males Accused of Sexual Assault in Campus Disciplinary Proceedings, 47 Ga. L. Rev. 591 (2013):
Id. at 621.A balance must be struck between protecting victims of sexual assault and protecting students accused of assault who, if innocent, are themselves victims. Appropriate procedural due process protections during campus disciplinary hearings can strike this balance. But this cannot be accomplished until universities are allowed to use a higher burden of proof than preponderance of the evidence, students are allowed to cross-examine their accusers, and the system does not allow for appeals by accusers. Until that time, OCR's newest requirements for grievance procedures will continue to make it far too likely that those accused of sexual assault-who are disproportionately male-will not only have their reputations destroyed, . . . but worse still may be found guilty for what is really consensual sexual conduct.
Id. at 596-97.There are good reasons . . . however, to doubt the existence of an epidemic of campus sexual assaults, despite the significant amount of attention paid to it. A closer look at the studies claiming a crises-level of collegiate sexual assaults reveals their dubiousness. For instance, one study that claims 90% of collegiate rapes go unreported explained that this was partly because the victims did not see the supposed assault as harmful or did not think that a crime had been committed. In other words, the rapes were not reported because, despite the researchers' categorization of the incidents as rapes, the individuals actually involved did not view them as such. Consequently, one of the most criticized aspects of sexual assault studies is the definition used to determine what constitutes an "assault."Consider the study cited in a recent "Dear Colleague" letter issued on behalf of the Department of Education's Office of Civil Rights (OCR). That study's definition of "rape" included "forced kissing" and "attempted forced kissing" as well as automatically counted any sexual contact with someone when they were unable to give consent because of intoxication or incapacity as "rape" or "assault." But the intoxication-or-incapacity question was framed in such a way that it likely included many gray areas: "Has someone had sexual contact with you when you were unable to provide consent or stop what was happening because you were passed out, drugged, drunk, incapacitated, or asleep?" One critic of the study explained why this question is unclear: "Does 'unable to provide consent or stop' refer to actual incapacitation- given as only one option in the question-or impaired judgment?" Another critic opined, "If sexual intimacy under the influence of alcohol is by definition assault, then a significant percentage of sexual intercourse throughout the world and down the ages qualifies as crime."Bolstering the argument that overbroad definitions of sexual assault and ambiguous survey questions have greatly exaggerated the prevalence of sexual assaults is the fact that only 2% of the survey's respondents who reported being sexually assaulted while incapacitated also reported experiencing any emotional or psychological trauma. Given how low this percentage was, the authors of the report asserted that the percentage was actually much higher. Most victims of sexual violence suffer from posttraumatic stress disorder (PTSD) in the aftermath of their attack. Between one-half to two-thirds of victims develop PTSD post-attack, and the adverse effects can, and often do, last for years. As noted above, college students often do not report or classify their experience as sexual assault. And while some studies suggest that victims who do not acknowledge their victim-status suffer less negative consequences from their attack, other studies have found that as many as 30% of these victims suffer from PTSD. Given the prevalence of emotional and psychological trauma following both acknowledged and unacknowledged sexual assaults, one would expect the disruptive effects of sexual violence to be widespread on collegiate campuses if an epidemic existed, even if reports of the violence are not.
Ryan Ellis has also taken the "Dear Colleague" letter to task. See Ryan Ellis, Mandating Injustice: The Preponderance of the Evidence Mandate Creates a New Threat to Due Process on Campus, 32 Rev. Litig. 65, 90 (2013), where he writes that the Department of Education "would be well advised to temporarily cease enforcement of the mandate and subject it to comment by the affected public. A well-documented public dialogue could help the agency formulate better solutions to the sexual harassment and sexual assault problems found on college campuses - solutions that also pose less danger to student rights."