Monday, October 26, 2015

The Campus Crusade against Sexual Assault in the Context of the Ongoing Erosion of the Rights of the Accused

We have witnessed in the United States a steady, if  in some ways subtle, erosion of the rights of the accused in the past 35 years.  To wit:

1.  The so-called War on Drugs has resulted in the highest incarceration rate among all the Western democracies.

2.  The plea bargain has become the procedure of choice in some nine of ten criminal cases.  Combined with the piling on of charges by prosecutors and the prohibitive cost of mounting an effective defense, this trend has replaced the Sixth Amendment right to a speedy trial as the mechanism for moving cases quickly through the creaking criminal justice system.

3.  The so-called War on Terror has resulted in the militarization of state and local police forces.  Meanwhile, the expansion of Americans' rights under the Second Amendment --- proceeding virtually hand-in-hand with the contraction of rights under the Sixth Amendment --- has resulted in battle lines being drawn between our law enforcement agencies on one side and the nearly-as-well-armed organized criminals, radical paramilitary organizations and lone-wolf madmen on the other.

4.  The erosion of America's middle class and the widening gap between the super-rich and the rest of us --- driven by numerous factors, including the decline of manufacturing and the powerful labor unions that had secured workers' fair share of industrial profits; the automating of millions of jobs, now even in the service and retail industries; the reduction of taxes on the rich and super-rich together with Citizen United's lifting of limits on the use of their ever-increasing stockpiles of dollars to buy public offices --- is leading inexorably to a permanent proletarian underbelly.  This divide along economic, and to a large degree racial and ethnic, fault lines can only exacerbate the trends identified in 1 through 3, above.

Enter the (probably well-intentioned) crusade to eradicate sexual assault on America's college campuses, begun by President Obama in a June 2014 speech and taken up with vigor by his Department of Education.   Consider this statement by a university administrator with whom I am acquainted: "In order to remedy the lack of quick and effective resolution of sexual assault cases in our courts, the Department of Education wants colleges and universities to do what the justice system can't... by lowering the standard of proof from 'beyond a reasonable doubt' to 'more likely than not,' and requiring that sexual-assault investigations plus adjudications be completed in 60 days."

Now, consider this comment in the context of my comments on the erosion of the rights of the accused.  Just as the proliferation of the plea bargain has largely supplanted the Constitutional right to a speedy trial, and the militarization of our police poses an unprecedented threat to our Fourth and Fifth Amendment rights, so too does the new DOE regime for the "War on Campus Sexual Assault" erode the rights of the accused in the context of this latest American criminal 'justice' crusade. 

Mind you... much, perhaps most, of what I have described above has occurred with the best of intentions:

1.  The proliferation of drugs and drug trafficking led to the War on Drugs.

2.  The Nine/11 attacks led to the militarization of our police.

3.  The flood of accused in our criminal courts led to the dominance of the plea bargain.

4.  Respect for First and Second Amendment rights by the conservative Justices who control our Supreme Court led to the lifting of limits on campaign contributions and on the prolific possession of fire arms by private citizens.

So, too, does a sincere desire to eradicate sexual assault in those venues where America's young adults are concentrated in their greatest numbers drive the current campus crusade.

In McCarthy's day, the Cold War justified witch hunts for reds in our government, entertainment industry and media.  During the Nixon administration, national security justified Watergate.  We now see how wrong-headed and dangerous these crusades were.

In every era, there is an issue --- drugs, terror, sexual assault - that is seen by its proponents to be so significant as to justify the erosion of our civil liberties.  And, so far, in every era, the arguments favoring these causes ultimately have been discredited.

So too, I predict, will be the current campus crusade.  But this will take some time.  As I discovered earlier this year, when I dared, during supervisory training at a university, to criticize the due-process flaws in the campus-based system imposed by the DOE on sexual-assault investigations/adjudications, the attack dogs remain ready to slip their leashes against anyone with the temerity to come out openly against this latest American domestic 'war.'  But the pendulum, I further predict, will swing in the opposite direction, as the unsoundness of the legal principles underlying the campus investigation/adjudication process are revealed with increasing clarity.

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