Wednesday, August 31, 2011

College men at risk: A morally grotesque defense of the new preponderance of the evidence standard at the University of Virginia

The University of Virginia Cavalier Daily applauds the university's new "preponderance of the evidence" standard dictated by the Department of Education's April 4 "Dear Colleague" letter, and has some advice to men to avoid false rape claims:

"This addresses a glaring shortcoming in the current policy, which fails to acknowledge that few cases of rape or sexual assault feature 'clear and convincing' facts. 'The self doubt and confusion a survivor feels after experiencing an assault combined with a lack of knowledge of what to do and where to go in the hours after an assault makes hard evidence difficult to come by in some cases,' Andrea Mousouris, a fourth-year College student and external chair of the Sexual Assault Leadership Council, said in an email. 'For example, date rape drugs leave the system relatively quickly, so if you do not go to the hospital soon after, all evidence is lost.' Although some might claim that this standard is too harsh, there are simple ways for individuals to avoid compromising situations that could lead to false accusations of sexual misconduct. Drinking responsibly at parties and respecting personal boundaries when communicating digitally, for example, would be a good start." (Emphasis added.)

As with all the discussions lately touting and defending the new "preponderance of the evidence" standard of proof, there is an almost breathtaking, and willful, ignorance about the potential harm to men accused of sexual assault they didn't commit. It is perplexing in the extreme that there is no discussion whatsoever of the delicate and critical balance between the need to punish the guilty and the need to insure that the innocent are not punished with them. Only the former interest is deemed socially important; the latter is treated as non-existent.  Yet it is that balance that is at the heart of all serious and mature discussions about how to combat rape.

Some very troubling trends I am seeing in the discussions defending this "preponderance of the evidence" policy:

First, there is an almost religious-like fervor to insist that it is too difficult to punish sexual assault perpetrators under a "clear and convincing" standard.  I am mystified by this. It is, or should be, more difficult to convict under a clear and convincing standard, but it is by no means impossible. Rapists are routinely convicted in criminal courts under the "beyond a reasonable doubt" standard, which is higher than the "clear and convincing" evidence standard, and there is no basis to believe it has become unduly burdensome to punish the guilty on campus using a "clear and convincing" evidence standard.

Second, and even more disturbing, is the implication that since it is allegedly difficult to prove rape under a "clear and convincing" standard, then the solution is to adopt a policy that will make it much easier to punish not just the guilty but even the innocent.

The Cavalier Daily suggests that the absence of hard evidence in many rape claims justifies the lower standard. The Cavalier Daily has it backwards. The absence of hard evidence to prove any crime is a sound reason to be wary about convicting men accused of it, not a valid justification to make it easier to convict the innocent with the guilty.  This point is so terribly fundamental and beyond dispute that it has been lost in the cacophony.

As Cynthia Bell recently pointed out: rape should be tough to prove, because the higher standard of proof protects the innocent. As Ms. Bell explained: "Lowering the burden of proof in these cases puts more college students at risk of being wrongly found guilty and having their reputations permanently damaged. How many innocents does OCR want to see mistakenly expelled as rapists in the name of getting tough on crime?" 

By insisting that the accusation should be afforded a weight just about equal to the defense, we are tossing Blackstone's formulation onto a scrapheap of politicized indifference. This reverses a policy that has been settled since the time of Abraham, as chronicled in Book of Genesis. When God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put the question to him: "Are you really going to sweep away the innocent with the guilty?" After repeated probing by Abraham, God made it clear he would not destroy the guilty if it meant destroying the innocent with them.

Third, we are allowing to be done to men what we say should not be done to women: victim blaming.  Read what the Cavalier Daily says men should do to avoid false rape claims: ". . . there are simple ways for individuals to avoid compromising situations that could lead to false accusations of sexual misconduct. Drinking responsibly at parties and respecting personal boundaries when communicating digitally, for example, would be a good start."

Imagine the outcry if a college newspaper said "there are simple ways for women to avoid compromising situations that could lead to rape."  While safety precautions directed to both men and women are, in fact, appropriate, in the politicized rape milieu, it is now officially politically correct to urge males to be cautious in their behavior while telling females they can party to unconsciousness.

What is lost in the entire discourse is any recognition that these are complicated, serious issues that are ill-served by shrill pandering to powerful interest groups. Basing a public policy on the desire to punish the guilty without protecting the innocent is not just childish and mean-spirited, it is morally grotesque.