Monday, December 12, 2011

The error in Jeff Parrott's thinking, point by point

There is so much wrong with Jeff Parrott's Getting through? How Catholic Colleges are responding to sexual assault, it is almost impossible to know where to begin. The following is a brief, and by no means comprehensive, refutation of Parrott's piece.

Parrott's article purports to be a serious discussion of sexual assault on campus, but it is rife with an unfortunate bias that is manifested, inter alia, by its heavy reliance on the views of financially interested members of what can aptly be called the sexual grievance industry. Parrott is, in fact, more cheerleader than objective journalist here. His piece is practically a love letter to a new order on campus that unjustly puts innocent young men at risk of being punished for offenses they did not commit. He seems blithely unaware that there is another side to the story, and that the pendulum has swung so far in furtherance of a PC agenda (an agenda that finds at least a vague correlation between evil and gender), that injustices to innocent men are occurring--a situation scarcely consonant with Catholic teachings. Parrot's piece is replete with radical notions that he never bothers to challenge.

It is well to note that it isn't just popular Catholic bishops who are falsely accused of rape: this site chronicles a mind-numbing cavalcade of stories from the mainstream news media of falsely accused college men. Parrott doesn't mention any of them because, presumably, they don't fit his preferred narrative. The words of Bishop David Zubik, who was recently falsely accused, are apt: "I assure you that I am concerned about the welfare of my accuser. At the same time, I expect that my integrity and the integrity of the Church I lead will be respected as well."

The same respect owed to Biship Zubik is owed to young college men, even those who hop in bed with drunken co-eds. No such respect is shown them by Parrott.

Preponderance of the evidence

Most glaringly, when Parrott's article discusses the Department of Education's mandate that colleges find persons guilty of campus sex offenses if the "preponderance of evidence"--just a little over 50%--supports their guilt, there is not even passing deference given to the views of a multitude of serious commentators concerned that this mandate seriously risks punishing innocent men for offenses they did not commit. Many of those criticisms are collected here: 

Instead, Parrott off-handedly asserts that many colleges had long used "the criminal justice system’s more stringent 'clear and convincing evidence' standard . . . which placed a heavy burden on the accuser."

First, Parrott's assertion that the criminal standard of proof is "clear and convincing" evidence is incorrect. The criminal standard is "beyond a reasonable doubt," which is markedly higher than "clear and convincing" evidence. Given Parrott's lack of understanding about such a basic fact, it is not surprising that Parrott also doesn't mention that rapists are convicted with regularity in our criminal system, even with the heightened "beyond a reasonable doubt" standard.

Parrott also doesn't mention that, although "preponderance of the evidence" is the usual standard in civil proceedings for money damages, there are various civil claims, depending on the jurisdiction, where the heightened burden of proof of "clear and convincing" evidence, versus a bare preponderance of the evidence, is utilized. The obvious example is fraud (but also promissory estoppel). Why fraud? Because of the risk of error and the importance of the interests involved in fraud litigation. Since fraud is often established with  circumstantial evidence, and claims of fraud can be easily fabricated, there is a high risk that one will be erroneously found to have committed fraud. In addition, there is a great risk that one's reputation may be tarnished by a false accusation of fraud. See, e.g., D.R.C.D.T., Inc. v. Integrity Ins. Co., 816 F.2d 273 (6th Cir. 1987).  Those same risks, of course, are present in claims of college sexual assault, but the Department of Education sweeps over them and Parrott never seems to give them a passing thought.

Brett Sokolow and the preponderance of the evidence standard

Parrott also relies heavily on Brett Sokolow without bothering to mention Sokolow's bias. Sokolow runs the National Center for Higher Education Risk Management, and is the de facto leader of what can aptly be called the campus sexual grievance industry. Parrot's article note that Sokolow "recommends hiring more than one prevention expert and funding prevention efforts on campus—not with thousands or tens of thousands of dollars—but with hundreds of thousands." Parrott does not challenge the necessity for such funding, and it is apparently premised on the belief that there is a campus rape epidemic -- the one-in-four or five stat so frequently trotted out. (A writer on a Pittsburgh Post-Gazette blog demonstrated the dishonesty in frequently touted campus rape statistics by crunching the numbers commonly used by sexual assault counselors on underreporting (he uses a 90 percent figure, significantly higher than RAINN's number, for example) and comparing them with the numbers of sexual assaults reported. He showed how, even using their own numbers (on the high end), one-in-five college women are not raped; in fact, the real number is not even in that universe. And we won't even mention that the study relied on by the Department of Education to justify its new rules was based on self-selection.)

Brett Sokolow has advised thousands of schools on sexual assault policies, and has long predicted that the day was coming when Title IX claims could be used for sexual assault claims on campus. '"'The ‘Dear Colleague’ letter was one of the most important moments of my professional life," he recently said. Sokolow has been pushing for a "preponderance of the evidence" standard for some time.  Sokolow has said he understands why some colleges want to use the higher "clear and convincing" standard due to considerations of "fairness" for accused students who might be expelled; however, Sokolow declared, that is not the best practice for colleges because the clear and convincing standard doesn't allow the "victim" (his word) to "win" under certain sexual assault scenarios. This is presumably due to the absence of tangible evidence to prove an offense that is marked by "he said, she said" evidence.

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. While finding a student guilty of a heinous sex offense should not be easy, it is by no means impossible to do exactly that under a "clear and convincing" standard, just as our criminal system routinely convicts men of rape under a "beyond a reasonable doubt" standard.

Moreover, Sokolow has it exactly backwards: the absence of clear evidence to prove any offense is a sound reason to be wary about finding men guilty of it, not a valid justification to make it easier to punish the innocent with the guilty.

Brett Sokolow and victim blaming 

Parrott then slips into PC cliche mode when he writes the following: "Sokolow also notes a commonplace tendency to blame victims. 'We don’t ask the victim of a purse robbery whether she tried to stop the robber, but we do ask victims of sexual assault questions that imply or impose a duty to resist, object, fight, or otherwise protest,' Sokolow says. 'Good policy should be based on consent, and the presence of consent or sexual permission isn’t shown by the absence of resistance.'” Sokolow goes on to call ours a "victim blaming culture" that needs to be redone by reconstructing masculinity and femininity. This is as radical as it gets.

First, while it is correct that consent is the sine qua non of sexual assault, queries by law enforcement personnel about the alleged victim's response to an alleged assault are typically intended to get at the root issue: whether there was consent in the first place.  Sokolow, and others who routinely trot out this absurd example, would have us believe that after a cop determines there was no consent, he then proceeds to tack on an additional requirement that the woman must resist in order to avoid pressing charges. That, of course, is as insulting to law enforcement as it is dishonest.

Sokolow's puerile robbery comparison is easily dismissed. To put it charitably, it is most unlikely that women consensually hand over their purses to strangers, but women routinely engage in consensual sex with college classmates. Newsflash: it's been going on forever. When a woman cries rape, but the man claims it was consensual, society demands that one or more third parties sort out a murky "he said, she said" scenario, which is often an impossible task in even the best of circumstances. To suggest that law enforcement personnel should not be permitted to ask about the woman's reaction to the man's overtures suggests that law enforcement should simply believe the woman, a suggestion that borders on the pathological. No one outside extremist circles buys that one.

Second, our culture is marked far less by impulses of "victim blaming" than by rushing to judgment and assuming guilt at the very hint of rape. One need not look to the hanging trees of the Old South for evidence of this. Once again, Sokolow has it exactly backwards. Need examples? Just page through this blog. How about yesterday for starters -- a camp was burned down to exact revenge on an alleged rapist. It turned out the rape claim was a lie. But overreaction to rape claims that turn out to be false is a common theme in this blog.

Colby Bruno transforms accusers into "victims" and presumptively innocent men into "perpetrators"

Parrott quotes Boston-based attorney Colby Bruno without challenge and without balance: "I’m disappointed in most schools in how they handle these cases. It’s not because they don’t always find for the victim, but it’s so heavily in favor of the perpetrator. The balance is so unequal.”

Ms. Bruno does not seem to entertain even the possibility that some of the "victims" were, in fact, not actual victims. Branding an accuser "the victim" and the accused as "the perpetrator" is offensive on a host of levels. Such descriptions do a grave disservice to (1) the presumptively innocent who are accused of such offences since it assumes their guilt before a scrap of evidence has been admitted at a hearing; (2) actual rape victims, because we trivialize rape when we include among its victims women who might only be false accusers; and (3) Parrott's readers, who are entitled to accurate reporting but receive something less than that when he quotes someone who transforms an accuser into a "victim" and a presumptively innocent man into a "perpetrator."

Moisés Barón and the rape continuum

Then Parrott quotes, without challenge, someone named Moisés Barón, assistant vice president for student affairs for student wellness at the University of San Diego. Barón claims that "a culture of sexism, evidenced by things as seemingly innocuous as jokes that demean women, can create a 'slippery slope' toward sexually aggressive behavior toward women." 

The notion of a "rape continuum" is radical, but you'd never know that from reading Parrott's piece. There is, in fact, no evidence that cracking an occasional crude sexual joke or even looking at Playboy Magazine from time to time -- as unCatholic as those things surely are -- leads to rape. Dr. Christopher J. Ferguson of Texas A&M, for one, said this: ". . . pornography is no more linked to rape than violent games are to violent crimes. Researchers have long known that rape rates have gone down in the U.S. as pornography consumption has increased. Rapists typically consume less pornography and are exposed to it later than non-rapist men." There is no "rape continuum," any more than there is a "murder continuum," or a "burglary continuum."

College of the Holy Cross

Parrott devotes several paragraphs to how the College of the Holy Cross gets it right when it comes to sexual assault. This is both ironic and maddening.

First, Parrott notes that "the burden of proving that the complainant consented to the sexual contact lies with the accused." Parrott doesn't bother to note that flipping the burden of proving consent in a rape case is perhaps the single most radical notion in our entire jurisprudence -- a notion long advocated by certain radical feminists -- since it transforms the sex act, normally an act of love, into a presumptive crime whenever a woman cries rape.  Shifting the burden of proving consent to the accused is an idea being pushed by extremist victims' advocates. See here.  Again, Parrott either isn't aware of this or he doesn't care.

Second, Parrott's treatment of Holy Cross' handling of sex cases is ironic in light of the recent suit filed by an expelled Holy Cross student. See here.  We can't comment on the merits of that suit, but given the school's views on consent, we'll be watching carefully.


Above all else, Parrott doesn't acknowledge the critical necessity of attaining balance -- balance between the need to punish rapists while insuring the innocent aren't punished with them. Parrott never mentions the innocent, or the strain that the Department of Education's new mandates place upon that critical balance. Parrott's piece is offensive because it is so terribly unbalanced.

Kowtowing to the bow wow of a radical PC agenda that places innocent men at risk of being punished for offenses they did not commit could scarcely be any less Catholic.