Monday, September 14, 2015

House of Representatives Committee on Education and the Workforce is considering a bill that would require alleged rape victims to go to the police...

... or else, the college couldn't punish the accused.
http://www.huffingtonpost.com/entry/safe-campus-act-opposition_55f1d303e4b03784e2787013 

Naturally, the bill's critics claim that, if enacted, the measure would chill victims' willingness to come forward.   They have a point.

On the other hand, along lines that I have argued repeatedly in this space, the proposal might be a step in the right direction, moving the sexual-assault pendulum closer to being back in balance.

Since President Obama's speech in June 2014, calling for an end to sexual assaults on college campuses and the DOE's subsequent crusade to put that mandate into effect, a number of abuses have become apparent to those of us in the legal community who care about due process of law:

1.  Labeling the accuser "the victim" from the get-go immediately creates a presumption of guilt, rather than innocence, with respect to the accused.

2.  The typical standard for determining guilt --- more likely than not --- is a far cry from "beyond a resonable doubt."

3.  When the case is close, adjudicators are 'more likely than not' to side with "the victim" and dismiss or suspend the accused, rather than risk liability by leaving a potential repeat offender at large on the campus.

Of course, the worst case of all was the Rolling Stone debacle at the University of Virginia, where the magazine decided to allow the "victim" to tell her side of the story, while honoring her request that its reporter not even contact the accused frat boys.  Several lawsuits against the magazine have resulted from that travesty of journalistic integrity.

What should we learn from it?  Well, perhaps that an accuser who is unwilling to avail herself of the criminal justice system ought to be viewed with extreme caution. Yes, as critics of the proposed legislation correctly contend, it's darn tough for a rape victim to deal with the scrutiny that will result from a criminal complaint.  But isn't that precisely the point?  If the defendant is going to be branded as a sex offender for the rest of his young life, shouldn't the evidence against him meet the higher standard required by the law?

And let's not be naive.  Even though the worst that can happen to the accused in a college adjudication is expulsion, the stigma of "sex offender" is branded on that student's forehead for keeps.  That's why so many of these young men are subsequently suing their institutions:
https://www.insidehighered.com/news/2015/05/01/students-accused-sexual-assault-struggle-win-gender-bias-lawsuits 

 https://www.bostonglobe.com/metro/2015/05/29/amherst/4t6JtKmaz7vlYSrQk5NDyJ/story.html

https://www.thefire.org/cases/occidental-college-student-found-guilty-of-sexual-assault-after-incapacitation-standard-is-misapplied/

http://www.huffingtonpost.com/entry/college-sexual-assault-witnesses_55afdef5e4b0a9b948535a4e

http://www.campussafetymagazine.com/article/male_students_failed_title_ix_lawsuit_highlights_pattern

To my mind, only when you have already embraced the presumption that the accuser is always a victim do you value her potential discomfort over the devastating harm that an incorrect finding of guilt under the "more likely than not"  standard against the accused can visit upon him.

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