Tuesday, November 8, 2011

Kalli Angel's vapid and dangerous defense of the "Dear Colleague" letter

Kalli Angel supports the mandate of the OCR's "Dear Colleague" letter that compels colleges to use a "preponderance of the evidence" standard to adjudicate sex offenses. Her faulty reasoning actually underscores the problems with the mandate.  We will not chronicle the numerous problems with Angel's analysis, but will focus on just two passages from her piece.

Angel writes: ". . . the preponderance of evidence standard of proof is an appropriate response to this unique type of case because sexual assault does not always result in forensic evidence. . . . . Just as much as alleged perpetrators of sexual assault deserve to be presumed innocent, victims of assault should not be presumed liars. Preponderance of evidence is a good compromise between both parties in cases such as these, where hard evidence is often difficult to find."

First, there is no evidence to support the belief that it is somehow too difficult to find sexual assault perpetrators guilty under a "clear and convincing" standard, or that by lowering the standard, more actual victims will report their rapes. While finding a student guilty of a heinous sex offense should be difficult, it is by no means impossible to do exactly that under a "clear and convincing" standard. Rapists are routinely convicted in criminal courts under the "beyond a reasonable doubt" standard, which is even higher than the "clear and convincing" standard.

Second, and even more disturbing is the implication that since it is allegedly difficult to prove sexual assault 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 the innocent as well. Angel has it exactly backwards: the absence of hard evidence to prove any offense is a sound reason to be wary about finding presumptively innocent persons guilty of it, not a valid justification to make it easier to punish the innocent with the guilty. This point is so terribly fundamental and beyond dispute that it has been lost in the politicized cacophony, epitomized by Angel's piece.

Third, and most disturbing of all, is Angel's puerile overarching assumption of moral equivalence between punishing men for rapes they didn't commit and allowing a rape to go unpunished. That view is as offensive as it is misinformed. A wrongful acquittal is a terrible thing. But a wrongful acquittal is never, ever the moral equivalent of a punishing a man for a crime he didn't commit. This long-settled principle was famously expressed by the celebrated English jurist William Blackstone who said it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.) But it dates to the time of Genesis, when God made it clear that he would spare the guilty so as not to sweep away the innocent with them in Sodom and Gomorrah.

Angel also cites with approval the work of a sexual grievance industry guru that trivializes the prevalence of false rape claims. A 2010 study by David Lisak, a psychologist at Northeastern University and several of his colleagues, "estimated the rate of false rape allegations over one ten-year period at just under 6 percent."

Any study that purports to prove that only 6% of all rape claims are false, with the implication that 94% of all rape claims must have been actual rapes, was either constructed by a fool or is disingenuous in the extreme.  No one knows for certain the percentage of false rape claims. A leading feminist legal scholar has acknowledged this irrefutable fact: ". . . 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). An authoritative law review article debunked the canard that only two percent of all rape claims are false. The author traced this number to its baseless source. See http://llr.lls.edu/volumes/v33-issue3/greer.pdf. The FBI has compiled statistics to show that women lie far more often about rape than other crimes. The Politics of Sexuality, Barry M. Dank, Editor in Chief, Vol. 3 at 36, n. 8. It is, therefore, erroneous to assert that only a small or insignificant percentage of rape claims are false because no one can make that assertion with any degree of certainty, and all the available objective evidence suggests it is wrong.

That the exact prevalence of false rape claims is neither known nor knowable is easily demonstrated. Only a relatively small percentage of rape claims can be definitively called "rape." This is beyond dispute. Roughly fifteen percent end in conviction in the U.S. and of those we know that some innocent men and boys are convicted. We also know that some claims reported (the numbers vary depending on the study) are outright false. But in between the claims we are reasonably certain were actual rapes, and the ones we are reasonably certain were false claims, is a vast gray area consisting of a group of claims that cannot properly be classified as "rapes" -- because we just don't know. That's the nature of a rape claim. The claims in this vast gray middle area often suffer from evidentiary infirmities. For example, for some such claims, while the claimant herself might think a rape occurred, her outward manifestations of assent did not match her subjective disinclination to engage in sex, so it wasn't rape. And that's just one of a countless number of examples.  The point is, no one can possibly say with any reasonable certainty that 94% of all rape claims were actual rapes.

We could go on and on about Angel's disturbing and morally grotesque defense of the "Dear Colleague" letter. Suffice it to say that it should not be taken seriously as it appears to be more the product of a zealous advocate than of someone concerned about striking that critical balance between (1) punishing rapists and (2) insuring that the innocent aren't punished with the guilty.