Thursday, July 10, 2014

Sen. McCaskill's Report on Campus Sexual Assault Reveals a Disturbing Bias Against the Accused

The Report of the U.S. Senate Subcommittee on Financial & Contracting Oversight prepared at the behest of Senator Clare McCaskill to assesses how colleges and universities report, investigate, and adjudicate sexual violence, has been published. The Report discusses the results of a sexual assault survey that McCaskill's committe sent to a multitude of colleges across the United States. The Report raises several serious concerns that Sen. McCaskill should be called upon to address.

While the Report contains information that could prove helpful in reducing sexual assault on campus -- a fact that all citizens should applaud -- it manifests an unfortunate and disturbing bias against presumptively innocent college students accused of sexual assault. The Report, coupled with other recent pronouncements by representatives of the current administration, foment a toxic atmosphere on campus where the presumption of guilt in sexual assault cases is not just acceptable but appropriate. That bias is anathema to our long cherished beliefs as Americans and is an affront to those moral precepts that have long guided all persons of good will.

MALE VICTIMS IGNORED

The report evinces a lack of concern for male victims of sexual assault. The following is found at footnote 1 on page 2 of the report: "There is no reliable, comprehensive data available regarding the prevalence of attempted or completed sexual violence committed against undergraduate men, who also experience sexual violence during college." The lack of any information about male victims is mentioned merely as a fact, not as a problem that needs to be urgently addressed.

CONCERNS ABOUT THE ABSENCE OF DUE PROCESS ARE DISMISSED

The Report chronicles a multitude of reasons our colleges are "failing to comply with the law and best practices in handling sexual violence on campus." But every single matter listed is a deficiency detrimental to sexual assault accusers. The Report does not list a single deficiency that harms students accused of sexual assault.

Is the Report's omission appropriate? Until recently, this would have been a hotly contested issue, but the issue has now been settled beyond reasonable dispute. NCHERM's president Brett Sokolow recently raised serious concerns that our institutions of higher learning are not treating college men accused of sexual assault fairly. See, e.g.here and here.  Among many other things, Mr. Sokolow explained that "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to . . . ." For many years, Mr. Sokolow has been a national leader in advancing the interests of sexual assault survivors on campus. His credibility on these issues is beyond reproach. It is jarring that the Report does not bother even to mention, much less chronicle, his concerns.

It gets worse. On pages 11-12 of the Report, the drafters dismiss out of hand any concerns that the accused are not afforded sufficient due process protections: "There has been concern voiced among some groups that if universities adopted more victim-centered approaches in their handling of sexual assault cases, they would violate the due process rights of alleged perpetrators." The referenced groups that are concerned about due process are nowhere identified in the report, and no links to sources expressing their concerns are provided. This is in contrast to the Report's many links to sources for the proposition that sexual assault victims are not adequately protected. If the report had bothered to provide links to groups concerned about the absence of due process protections for men accused of campus sexual assault, it would have mentioned, among many others, FIRE and the American Association of University Professors (AAUP), which has stated that the "clear and convincing evidence" standard isn't just preferable but "necessary" to insure that students accused of sexual assault are afforded proper due process protections. SAVE has compiled a staggering list of links to sources about academia's hostility to due process protections for students accused of sexual assault. None of these sources are cited in the report, much less discussed. The committee did not make a good faith effort to address the concerns about due process for the accused.

The Report goes on: "Some have even said the system is already too survivor-focused."  Note the use of the adverb "even" to trivialize the assertion, to emphasize that it is surprising or extreme. The report continues: "Contrary to these concerns, it appears that some institutions actually afford certain due process elements more frequently to alleged perpetrators than they do to survivors." One of the inconsequential examples cited in support of the proposition that some colleges "actually" favor "alleged perpetrators" is that 82% of schools allow the accused to challenge hearing members regarding impartiality or conflicts of interest, while only 78% provide the same right to survivors. She also notes that only 85% of all schools use the preponderance of the evidence standard (no court has ever ruled that it is lawful for the Federal government to mandate this standard.)

While the Report makes sure to highlight these minor points, it doesn't bother to discuss the truly disturbing findings revealed by Senator McCaskill's survey, attached to the Report. For example, the survey reveals that some schools -- 6% -- do not even presume the defendant is innocent until proven guilty. (F3.13) In addition, 8% of the schools do not even bother to inform the defendant of his rights before the hearing. (F3.2)  A full 13% of the schools do not provide the defendant written notice of the charges prior to the hearing. (F3.1)  And 19% of the schools don't bother to keep written records of the proceedings, suggesting an alarming absence of accountability and transparency. (F2.5)

These are staggering due process infirmities that cry out for immediate correction. Yet the Report manifests no concern about them whatsoever -- none -- presumably because they don't fit the Report's narrative that men accused of sexual assault are not denied due process protections.

THE REPORT ASSUMES ACCUSERS ARE 'VICTIMS' 

Words matter, especially in official government reports. In discussing sexual assault claims, if the accuser is a "victim," then the accused must be guilty of sexual assault. The Report is replete with references to the accuser as the "victim."

In some contexts, it is perfectly acceptable, indeed humane, to call an accuser a "victim." For example, when the Report discusses support available for women who report they were sexually assaulted, it seems appropriate to call them "victims" or "survivors."

But when the Report discusses the adjudication of sexual assault claims, it is wholly inappropriate, and unjust to the accused, to refer to the accuser as a "victim." Such language promotes an unacceptable presumption of guilt. Yet the survey questions promulgated by McCaskill's committee, and made part of the Report, are rife with such references:

●F2.7. Which types of formal or informal adjudication procedures for sexual violence exist at your institution? [Defendant has a right to hearing transcripts]

F2.8. Which types of formal or informal adjudication procedures for sexual violence exist at your institution? [Victim has a right to hearing transcripts]

●F2.10. Which types of formal or informal adjudication procedures for sexual violence exist at your institution? [Victim has a right to be informed of the outcome]

F2.11. Which types of formal or informal adjudication procedures for sexual violence exist at your institution? [Defendant has a right to be informed of the outcome]

●F3.2. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Defendant is informed of rights before hearing]

F3.3. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Victim is informed of rights before hearing]

●F3.4. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Defendant may bring an adviser or lawyer]

F3.5. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Victim may bring an adviser or lawyer]

●F3.6. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Defendant is permitted to be present at the hearing]

F3.7. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Victim is permitted to be present at the hearing]

●F3.8. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Defendant is required to be present at the hearing]

F3.9. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Victim is required to be present at the hearing]

●F3.10. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Defendant has the right to challenge hearing members concerning impartiality/conflict of interest]

F3.11. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Victim has the right to challenge hearing members concerning impartiality/conflict of interest]

●F3.12. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Defendant has a right to question and call witnesses]

F3.13. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Victim has a right to question and call witnesses]

●F3.14. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Defendant has a right to an appeal]

F3.15. Which of the following due process elements exist in your institution's formal or informal adjudication process? [Victim has a right to an appeal]

The committee's transformation of accusers into victims is purposeful and evinces a presumption of guilt that should not be countenanced by persons interested in the fair adjudication of campus sexual assault claims.

THE REPORT UNNECESSARILY FOMENTS RAPE HYSTERIA

The Report, on page 2, trots out the one-in-five stat: "Approximately one in five undergraduate women has been the victim of attempted or completed sexual violence during college."

Even the Washington Post  recently rejected reliance on this statistic, explaining there is not enough evidence to support it.

There are, in fact, good reasons not to accept the one-in-five stat. In the self-selecting, Web-based survey of a small population of students from two universities that came up with the one-in-five stat, the definition of sexual assault was engorged to include attempted sexual assault and even “sexual touching,” including rubbing up against someone in a "sexual" way over clothing. Moreover, every sexual assault allegation was uncritically accepted as an actual sexual assault and none were tested against competing claims or evidence of innocence. We know that when rape claims are reported and the evidence about the incident is actually examined, the majority of claims simply cannot be classified as sexual assaults or non-sexual assaults.

Even more peculiar, Footnote 1 on page 2 states: "Because of underreporting, the percentage is likely much higher." This is preposterous given that the one-in-five stat was not derived from information about reported rapes but from the above-referenced survey.

The report also asserts a reason for underreporting that is misleading. The Report states: "Due to the widespread concerns regarding the handling of sexual assault cases by local law enforcement, many sexual assault survivors prefer to avoid reporting to police at all." (Page 9)

Scott Berkowitz, President & Founder of the Rape, Abuse, & Incest National Network (RAINN), and undeniably an expert on the subject, testified about underreporting in a 2010 Senate hearing in 2010 hearing. His testimony reveals that the Report has not told the complete story. Berkowitz's testimony was summarized by Amanda Hess:
More victims may not be reporting their rapes, but the reasoning has changed over the past few decades. "A generation ago," the reasons were things like, "fear of not being believed; fear of being interrogated about and blamed for their own behavior, and what they were wearing. In short, they feared that they would be the one on trial."

Today, "the perception of many victims has evolved." Now they don't report for these reasons: "they don't want their loved ones to know what happened; they're ashamed themselves; they just want to put it all behind them." Today, "fear and shame of how the police wil [sic] treat them" has moved down on the list of reasons victims provide for not officially reporting the crime.
CONCLUSION

All Americans should applaud Senator McCaskill's efforts to gain a better understanding of how our institutions of higher learning handle sexual assault.

The problem is that McCaskill's Report (1) ignores the problems that the system poses to the presumptively innocent who are accused of sexual assault, and (2) evinces a bias against the presumption of innocence that seems clearly driven by gender politics.

Acknowledging that the system isn't working as it should work for the presumptively innocent does not detract from the legitimate problems confronting women who are victimized by sexual assault. It is not a zero-sum game, and this is not the Oppression Olympics. Oppression and injustice visit us in many forms, and sometimes they afflict our sons as well as our daughters. Every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must insure that the innocent aren't punished with them. The latter concern, too often absent from the public discourse, has been ignored by Senator McCaskill's committee.