Tuesday, April 19, 2011

A college feminist's morally grotesque, factually vapid, defense of the April 4 directive to lower the standard of proof in sexual assault cases

Viviana Arcia, Stanford class of 2013, proffers the most reprehensible, morally grotesque, and factually vapid defense of the Obama administration's April 4 directive to colleges to lower the standard of proof for sexual assault cases to date. The April 4 directive means that there need only be a slight probability that the offense occurred in order to hold the accused (almost always a male) responsible.

Why is this lowering of the standard of proof critically important to men on campus and the people who care about them?  The only reason that the vast majority of colleges currently apply the "clear and convincing evidence" standard (which means that to find an accused responsible for sexual assault, the school must produce evidence that unequivocally establishes a very high probability that the alleged assault occurred) as opposed to the lower "preponderance of the evidence" standard, is to insure that innocent persons are not held responsible for wrongs they did not commit. The higher standard of proof is bottomed on a fundamental value determination that it is far worse to hold an innocent man responsible for something he didn't do than to let a guilty man escape punishment for something he did do. It is a manifestation of Blackstone's Formulation. When the standard of proof is lowered, a policy decision is made that it is acceptable to risk holding more innocent persons responsible for wrongs they did not commit  in order to hold a greater number of responsible parties accountable for the wrongs they did commit. We've written about the April 4 directive extensively.  See, e.g., here.

Does Viviana Arcia even acknowledge that lowering the standard of proof will increase the risk that the school might get it wrong and wrongly hold the innocent responsible? Does she deign to give a passing nod to the interests of those innocent young male classmates of hers who might be wrongly held responsible for something they didn't do? 

Of course not. "This decision" to lower the standard of proof, Viviana Arcia  gushes, "comes as a great joy to me." In fact, it is "a cause for celebration . . . ." (You will recall that another Stanford woman said: “Lowering of the standard of proof is absolutely crucial to the women’s community.”) 

"Getting it wrong" and punishing the innocent for sex offenses is an acceptable risk to too many feminists. Viviana Arcia's defense of the April 4 directive is grounded on three erroneous rationales:  false rape claims are rare; campus rape is rampant; and underreporting of rape will be curbed by lowering the standard of proof. Let us dispose of each in short order.

As a preliminary note, Viviana Arcia suggests that sometimes criminal courts prosecute sexual assault by a preponderance of the evidence standard. Not so. See In re Winship, 397 U.S. 358 (1970) and its progeny.  A state must prove every element of a crime "beyond a reasonable doubt."


Have you ever noticed that every time a young feminist discusses false rape claims, she becomes an actuary? False rape claims, they posit, are an acceptable risk because there are so few of them and because there are so many actual rapes. Viviana Arcia is no exception: "While it may be the case that some accusations are unfounded" (no, Viviana Arcia: it is the case that a significant number of accusations are not merely unfounded but false), "this occurs in less than 2 percent of overall cases."

Sigh. When the legend becomes fact, old cowboys and feminists alike insist on printing the legend. It is remarkable that we are forced to dispel this two percent assertion over and over and over. The two percent canard was long ago conclusively debunked, yet it is still trotted out with zombie-like repetition by members of what can aptly be called the sexual grievance industry. See, e.g., E. Greer, The Truth Behind Legal Dominance Feminism's 'Two Percent False Rape Claim' Figure, 33 Loyola of Los Angeles Law Review 947, a scholarly law review article that painstakingly traced the two percent canard to its baseless origin. See also, "Until Proven Innocent," the widely praised (praised even by the New York Times, which the book skewers, as well as almost every other major U.S. news source) study of the Duke Lacrosse non-rape case. Authors Stuart Taylor and Professor KC Johnson explain that "[t]he standard assertion by feminists that only 2 percent" or sexual assault claims "are false, which traces to Susan Brownmiller's 1975 book 'Against Our Will,' is without empirical foundation and belied by a wealth of empirical data." (Page 374.)

While no one else can legitimately say what percentage of rape claims are actually false, mirabile dictu, Viviana Arcia can tell us to a mathematical certainty. This is in stark and telling contrast to a leading feminist scholar, who has explained: ". . . the statistics on false rape accusation widely vary and 'as a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown.'" A. Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581, 595-600 (November 2009) (citation omitted).  That fact is, most rape claims cannot be definitively classified as actual rapes or as false claims.

Of those claims we can classify with reasonable certainty as either actual rapes or false claims, a significant percentage are false claims.  Every impartial, objective study ever conducted on the subject shows false rape claims are a serious problem. See, among many others, B. Gross, False Rape Allegations: An Assault On Justice. See also here.


But facts be damned. Viviana Arcia plows ahead by spewing the gender divisive, lock-the-doors, hide-the-daughters Chicken Little rape hysteria that "campus sexual assault has become an epidemic."

Sorry to disappoint you, Viviana Arcia.  It's not one-in-four, or one-in- five, or one-in-four before Thanksgiving of Freshman year (these, and every other variation of the "one-in" lie, are constantly repeated by the various representatives of the sexual grievance industry). It's more like one in 1,187.  If the feminists were to be believed, our college campuses would be more dangerous places than even the Tadmor Prison in Syria, where the bloodthirsty guards butcher inmates with axes for the fun of it.  What sane parent would pay to allow their daughter to attend such a place? And what sane woman would go to a co-ed college?

The April 4 directive was premised on research supposedly finding that one in five college women are victims of sexual assault or attempted sexual assault. Aside from the fact that this number does not comport with the figures of of reported rapes on any college campus in America or even with the number of alleged rapes adjusted using a 60 or even a 90 percent underreporting figure (even that adjusted number is relatively puny -- in a different universe --  compared to the one-in-five lie), the survey that concocted that outrageous one-in-five number utilized self-selecting respondents. We've explained in previous posts that the the problems with such methodology are insurmountable. It is not at all surprising that we haven't heard a single feminist complain about that methodology.

Here are the facts at Stanford. From 2007-2009, campus sexual assault on the main campus had an annual average of approximately 11 reported sexual offenses of either a forcible or non-forcible nature. There were an average of 5.3 reported rapes during that time. Critically, the statistics do not tell us how many of those reported claims were false or unfounded.  If the numbers mirror national trends, the numbers of false and unfounded claims are significant.

Viviana Arcia posits that these aren't the real numbers, since "over 60 percent of sexual assaults are unreported." Which means that there should have been an annual average of  28 reported sexual offenses on the main campus and 13.2 rapes during that time period. Anyone who bothers to do the math will know that this number is in a different galaxy from one-in-five.  In addition, for some perspective, during that same period of time, there were an annual average of 254 reported burglaries and a far, far greater number of reported thefts than even that.

Perhaps the feminist mantra "all men are rapists" needs to be changed to "all men (and likely some women, too) are burglars." 

Heather MacDonald's words were apt: "It’s a lonely job, working the phones at a college rape crisis center."

Rape and sexual assault are not rampant on America's college campuses.


But wait, Viviana Arcia isn't finished. "By having such a stringent standard [of proof] for sexual misconduct cases, survivors of sexual assault and relationship abuse were being deterred from pursuing the process, given the difficult standards they were required to meet." And: "it’s not hard to see why, considering how many women are re-victimized once they decide to come forward and seek justice . . . ."

No one -- no one -- knows the precise extent of underreporting, and no one ever has. In fact, the politicization of rape renders it impossible to discern whether underreporting is at all significant. See, J. Fennel, Punishment by Another Name: The Inherent Overreaching in Sexually Dangerous Person Commitments, 35 N.E.J. on Crim. & Civ. Con. 37, 49-51 (2009).

But even accepting for the sake of argument that undrereporting is a significant problem, the actual reasons for it scarcely support the draconian fiat lowering of the standard of proof at all colleges. At the Specter Hearings in Congress last autumn, Scott Berkowitz, President and Founder of the Rape, Abuse and Incest National Network (RAINN) said that alleged underreporting is mainly due to reasons other than the ones posited by Viviana Arcia:  Mr. Berkowitz said that 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, women feared that they would be the one on trial.  Today, Mr. Berkowitz explained, 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." 

Lowering the standard of proof won't do anything to alter any of that.


Viviana Arcia's defense of the April 4 directive is wholly indifferent to the concerns of the falsely accused. Innocent men are nothing more than collateral damage in her more important war on rape.

So what else is new?  Feminists across America are applauding the fact that the victimization of our daughters has been officially elevated over the victimization of our sons. 

All persons of good will should condemn blatant exercises in misandry such as Viviana Arcia's article that blink at the interests of the innocent in order to further an angry, political agenda.