Fight Sexual Assault, Not Due Process

Fight Sexual Assault, Not Due Process

Reducing an issue to a binary proposition is simpleminded and will make for bad policy. Rest assured, no one is "pro-" sexual assault. However, the current administration is now rolling out a massive public-service-announcement campaign featuring celebrity actors like Daniel Craig raising the battle cry that "one sexual assault is too many." (You know, because James Bond is a champion of respecting women and always seeking consent.) It has also forwarded a comprehensive set of recommendations intended to snuff out incidences of the crime.

This is not a matter of criminalizing sexual assault. These acts are already illegal. Perpetrators are already sought out and brought to justice in criminal courts. And at the university level, administrators at many institutions already possess the authority to impose sanctions that, while they don't include prison time, are nearly certain to destroy the individual's future prospects.

It is more than fitting for one who commits such a heinous offense to be kicked out of school, but when universities handle sexual-assault allegations, one cannot say the case has been proven or the punishment substantiated. University proceedings use evidentiary standards far lower than those employed in a criminal trial.

At most universities, a disciplinary panel is made up of faculty, administrators, and usually one or more untrained, unqualified, sycophantic undergraduates. If 51 percent of the panel is 51 percent sure that the incident occurred, the student is considered guilty. To take this a step further would be to have a single inquisitor -- er, "investigator" -- unilaterally fact-find, adjudicate, and sentence. According to the White House's report, some schools are experimenting with systems along these lines, and the administration finds them promising.

This 1) doubles down on a broken system, 2) further erodes the liberties of noncriminal men and women on college campuses, and 3) fails to even remotely address the problem it seeks to solve.

The current system of campus discipline is a sad joke. For the vast majority of institutions, I can speak only on the basis of what I have read -- but I can speak with certainty on my experience at, to use Institutional Review Board parlance, "a midsized, Midwestern university," and there seems to be little difference.

At this university, the student disciplinary process is both arbitrary and capricious. I can vividly recall one month where a plagiarist was put on academic suspension and another student, integral to a certain post-season single-elimination tournament, was left unsanctioned (athletically and academically) after two incidents in short succession of widely corroborated criminal behavior. Do we have any reason to think this capriciousness will cease when only one individual needs to be persuaded instead of a group?

It is this same disciplinary system that has tacitly complied with a loosely defined concept of harassment previously recommended by this administration, one that need be substantiated only by a preponderance of the evidence. While there are manifold due-process concerns here, the largest corpse here may be academic freedom -- some harassment definitions are so broad that they may subsume classroom debate on controversial topics. Fear not, for at least then we will have "academic justice."

Perhaps the most tragic component of the administration's initiative is that it leaves the root of the problem fundamentally untreated. There is criminological research that might help to explain why sexual assault happens and how to address it -- and the solution isn't to erode due process or to punish the convicted even more harshly than we do today. Further restricting already-abridged rights in campus disciplinary hearings will not prevent future incidents. We have traveled down the "get tough" road for decades in regards to other offenses, and look where it has led. The average sentence for a rape convictions is incarceration for nine years, and several states carry a mandatory minimum of ten or fifteen for the offense.

There is little contention that accurate reporting is a troublesome issue. It is suggested (and I tend to agree) that this is due to stigmatization, vague definitions, and the rancor surrounding the issue (such as RAINN’s hyperbolic estimate that 97 percent of rapists go unpunished). However, reducing the burden of proof to trigger punishment will not prevent these incidents from occurring.

Sexual assault is a problem. I fundamentally agree with the hackneyed slogan forwarded by the current administration. One sexual assault is too many. One murder is too many. One robbery is too many. One case of white-collar embezzlement is too many. Regardless, incidents of the above will happen, and we need sound and fair policy, not platitudes, to address them.

Derek Cohen is a policy analyst living in Austin, Texas.

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