Monday, September 15, 2014

Sorry, the college sex tribunal is not "bizarre and cruel" for women who cry rape, it's "bizarre and cruel" for the presumptively innocent accused of rape

A former Philadelphia prosecutor who now works for a company dedicated to "increas[ing] victim safety and offender accountability" said that Franklin and Marshall College's protocol for handling sexual assault hearings is “bizarre and cruel." We agree, but not for the reasons the former prosecutor thinks. He thinks it is "bizarre and cruel" to the accuser. Why? Because "it requires victims to sit at the same table as the person who raped them and basically try their own case. It demonstrates a shocking lack of understanding of the impact of sexual trauma on victims.”

The former prosecutor's failure to mention that sometimes accusers are not "victims" betrays his bias and should banish him from the adult table on this very serious issue.

Let's talk about "bizarre and cruel," shall we? At Franklin and Marshall College, the Policy on Sexual Misconduct makes clear that men who never dreamed of raping a women are to be viewed right off the bat with suspicion. It cautions students about the "warning signs" or ”red flags” that indicate "a risk of sexual misconduct." These include: if the person you are with "interrupts" you (yes -- interrupts -- and, no, we're not making that up), or "drinks too much or uses drugs" (by this standard, when a women drinks herself into oblivion, isn't that a warning sign that she's engaging in sexual misconduct -- or is that "victim blaming"?), or "wants to be alone with you before getting to know you" (you see, it isn't possible that someone wants to be alone with you in order to get to know you).

When an accuser decides she's been sexually wronged, Franklin and Marshall assures her that "students who report . . . sexual misconduct involving students will not be disciplined by the College for any violation of the College’s drug or alcohol possession or consumption policies in which they might have been engaged in connection with the reported incident." This is an echo of the Department of Education's infamous April 4, 2011 "Dear Colleague" directive that instructs college administrators to consider whether punishing students (almost always women or gay men) for alcohol offenses will have a "chilling effect on victims' . . . reporting of sexual violence offenses." In contrast, if an intoxicated underage male reported he'd been beaten badly, he would be charged with underage drinking because his victimization isn't the right kind of victimization. While charging for intoxication might have a chilling effect on reporting rape, announcing immunity for charges of intoxication for students who cry rape might provide a handy excuse for intoxication.

At Franklin and Marshall, when the woman decides to file a complaint, she's assisted by an advisor she selects from the school's roster of Title IX approved advisors.

At the hearing, the accused is not permitted to confront or cross-examine his accuser. They may be seated at the same conference room table (a conference room table is generally long -- it's not like sitting across the kitchen table from your rapist), and according to this article, "a barrier may be set up between the complainant and respondent if the complainant so wishes." This is somehow "bizarre and cruel" to the accuser? In fact, it is "bizarre and cruel" to the accused. It makes a mockery of any semblance of due process. In marked contrast to criminal and civil judicial proceedings, the accuser doesn't have to answer a single question posed by the accused. While the Dept. of Education insists the preponderance of the evidence standard is appropriate for college sex hearings because that's the civil law standard in Title IX cases, what they forgot is that in civil cases, the defendant is afforded all manner of evidentiary protections that colleges routinely deny young men accused of sex offenses. In civil cases, defendants are permitted to vigorously depose prior to trial, and vigorously cross-examine during trial, the accuser and any other pertinent witnesses. In civil cases, the defendant is also permitted to engage in all manner of discovery besides depositions, including proffering requests for admissions, requests for production of documents, and interrogatories. In a civil case, if the plaintiff fails to respond to proper discovery requests, she is sanctioned by the court, up to and including dismissal of her case and requiring her to pay the other side's attorney's fees. Franklin and Marshall's procedure mirrors the procedures at colleges all across America: none of the procedural safeguards available in civil trials are afforded the accused.

Beyond that, unlike civil trials, there are no provisions (except for one) to regulate the admission of evidence at the hearing. For example, there are no prohibitions about admitting hearsay evidence against the accused or about keeping out evidence against the accused where the prejudicial effect far outweighs the probative value. The only evidentiary safeguard that the school has bothered to spell out is for the accuser; specifically, the school incorporates the policy behind rape shield laws that generally prohibits the admission of evidence about the accuser's sexual activity with anyone other than the accuser.

At Franklin and Marshall, the three-person hearing panel reaches its verdict by majority rule, and the standard of proof is preponderance of the evidence (so if two panel members are swayed even a little more by the complainant's story, the accused is found responsible). The dangers of this de minimis standard in potentially life-altering procedures are well-known -- we've written about them extensively and won't repeat them here.  Franklin and Marshall College thinks its perfectly acceptable to destroy a young man's life even if all panel members have a serious doubt about his guilty so long as two out of three panel members think he "probably" did it.

The school's procedure also contains this bizarre requirement: "Both students will prepare an impact statement describing the impact that the initial event and subsequent related events have had on their lives. The impact statement will be reviewed by the Hearing Panel only in the event of a finding of responsibility."  What on earth is the accused student who protests his innocence supposed to say in an "impact statement" -- other than that he was wrongly accused?

The reason that a former prosecutor can say with a straight face that the procedure is "bizarre and cruel" for the accused, and that newspapers print comments like that without challenge, is because there is a widespread assumption that accusers are victims and that the men they accuse are rapists. This assumption is buttressed by junk science and feminist mantras chanted with such frequency that they are assumed to be true. The widespread belief that men get away with rape too often leads these gender crusaders to the Orwellian conclusion that it's okay to assume this particular man is guilty on the basis of a mere accusation.

College sex tribunals are nothing more than window-dressing to make mom and dad think the school cares about fairness for their sons even though the proceedings to determine their responsibility are stacked against them. The public discourse on this issue has become so loopy, so topsy turvy, so downright hateful, that "up" is "down" and "wrong" is "right" and making the accuser feel safe trumps due process. And for too long, people of good will have nodded politely when gender crusaders jabber their idiocy. It's time for all persons of good will to say, "enough!"