Tuesday, September 4, 2012

Part I: The University of Montana deprives men of their right to a fair hearing in sex cases

To mandate that the trier of fact be taught that there is virtually no possibility that a man accused of sexual assault might be innocent is an affront to the due process rights of the presumptively innocent.

Due process requires that criminal hearings in our courts and disciplinary hearings on the campuses of our public universities be conducted with fairness by impartial adjudicators free of the taint of bias.
Imagine if the members of a jury pool for a rape trial were required to attend a presentation by experts on rape. Imagine further that the experts made it abundantly clear that persons accused of rape are almost certainly guilty, that it is a “myth” that people lie about sexual assault, and that “only two percent of people actually lie about a sexual assault.”  And imagine further that the members of that jury pool are required to take a test on the information related by the experts, and to keep taking it until they got all the questions right. And, finally, imagine that the jury for the sexual assault trial is selected from this jury pool.  Would there be any question that this procedure violates the due process rights of the person on trial?

You don't have to imagine it. They’re actually doing it at the University of Montana.  All students attending the University of Montana -- including the ones who will adjudicate sexual assault hearings -- are required, starting this semester, to watch a video tutorial on sexual assault consisting of seven short videos (the videos are found here: http://www.umt.edu/petsa/), then to pass a quiz based on the videos with a score of 100 percent before they can register for second semester classes. The videos contain much information about sexual assault that is helpful, but they also contain unnecessary and controversial assertions that are the staples of extremist and politicized gender advocates and that tend to reduce young men to caricature:

“Myth: People lie about sexual assault. Fact: The vast majority of sexual assault reports are true." (Video Four – Myths & Facts)  That "myth" is coupled with the statement that "not believing a survivor can be emotionally damaging and may prevent others from coming forward." 
“Only two percent of people actually lie about a sexual assault."  (Video Seven – Take Action)
“Many scholars warn of a rape-prone culture where prevalent attitudes, norms, and behaviors, excuse, minimize and even encourage sexual violence" (Video Four – Myths & Facts)
“The overwhelming majority of assaults, 82%, are perpetrated by acquaintances, friends, or family members who use coercion to assault. Coercion – pressuring, guilt tripping, intimidating – can be just as forceful and physically disempowering as physical violence.” (Video Four – Myths & Facts)
The script for the videos was written by two professors from the school's Women and Gender Studies program. “We know this video can evoke strong feelings on the part of men and women,” one of them said. “This training is designed to create the opportunity for dialogue and discussion and to make sure we’re not silent about these issues.”  The information in the videos has been given the school’s imprimatur. The school’s president both introduces and concludes the video presentation.
As noted above, among the students forced to watch the videos and pass a quiz based on the information contained in them are students who will be adjudicating sexual assault cases involving their classmates. The University of Montana Student Conduct Code provides that the University Court “consists of three undergraduate students and one graduate student nominated by ASUM, two faculty members nominated by the Executive Committee of the Faculty Senate, and one staff member nominated by Staff Senate."  That is problematic in the extreme.

Our jurisprudence is replete with admonitions that an expert must not be allowed to vouch for a witness' truthfulness. To mandate that the trier of fact be taught that there is virtually no possibility that a man accused of sexual assault might be innocent is an affront to the due process rights of the presumptively innocent. Recently, a Texas appeals court vacated the conviction of a man found guilty of sexually assaulting a 13-year-old girl because at the man’s trial, an expert for the prosecution testified that only 2 percent of children lie about child sexual assault allegations. The appellate court found the expert’s testimony to be an intolerable intrusion on the jury’s fact-finding duties because it instructed the jurors that the accuser was credible regardless of the actual evidence in the case under consideration. See here: http://www.cotwa.info/2012/08/another-very-alarming-assault-ended-in.html 

The same due process infirmities that mandated reversal in the Texas case instruct that a man accused of sexual assault at the University of Montana cannot receive a fair hearing. This places the innocent at grave risk and should raise concerns under Title IX.


To make matters worse, in accordance with the Department of Education's April 2011 mandate, hearings on alleged sex offenses are adjudicated using the lowest standard of proof known to our jurisprudence, a preponderance of the evidence (just slightly more probable than not). Far less serious alleged offenses that do not involve sex are adjudicated using the higher clear and convincing evidence standard, which provides the presumptively innocent far greater protections. (The standard for sexual assault cases was lowered to make it easier to find men guilty of sexual assault because sexual assault cases are typically "he said/she said" disputes that are difficult to prove. In fact, the Department of Education got it backwards. The absence of corroborating evidence to prove guilt is scarcely a valid justification for making it easier to punish the presumptively innocent. It is, rather, a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he did not do.)
In short, when men are accused of sex offenses at the University of Montana, the hearing is over even before it has begun. Why should all young men attending the University of Montana, including the vast majority who would never commit the vile crime of rape, and their parents, be outraged by this state of affairs? Because the innocent should never assume that they will be spared the injustice of an unjust system merely because they are innocent.*
Tomorrow, in Part II, we examine the legal infirmities in making psychological coercion a punishable offense at the University of Montana.
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*NOTE:  Not only does the video improperly tell adjudicators that the accused is almost certainly guilty, its assertion that only two percent of sexual assault claims are false was long ago debunked. See, e.g, E.Greer, "The Truth Behind Legal Dominance Feminisms 'Two Percent False Rape Claim' Figure, 33 Loyola of Los Angeles Law Review 947 (2000), a scholarly article that traced the assertion to its baseless origin. Yet this canard is frequently repeated by rape victims advocates.

More thoughtful voices reject it. A leading feminist legal scholar has acknowledged this 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).  Why so much uncertainty? Because in between the claims we are reasonably certain were actual rapes, and the ones we are reasonably certain were false claims, lies a vast gray area consisting of the majority of the claims that can neither be classified as "rapes" or as non-rapes -- because we just don't know. That's the nature of a rape claim, where the act that gives rise to the claim is almost always committed in private. The claims in this vast gray middle area often suffer from evidentiary infirmities. Sometimes, 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.
Dr. David Lisak published a study on the subject in 2010 in Violence Against Women where he classified 8 out of the 136 (5.9%) reported rapes at a major northeastern university over a ten year period as false.  This study has been cited by many rape victims advocates, sometimes improperly to trivialize the prevalence of false rape claims.  Even if 5.9 percent were the total of all false claims, that would still be a staggering number.  But the number is likely much, much higher. While Dr. Lisak's study found that 5.9% of the claims were coded as false reports, even his report can't be read to mean that 94.1% can be regarded as actual sexual assaults.  In fact, what the rape victims advocates never mention is that Dr. Lisak's report shows that 58.8% of all claims fall into the vast gray area referenced above where we simply don't know whether it was a rape, a non-rape, or a false claim.  Moreover, of the remaining 35.3% of the claims that were referred for prosecution or disciplinary action, Dr. Lisak offers no opinion as to the propriety of the referral and does not even reveal the outcome of the prosecution or disciplinary action. In short, of all the rape claims that we definitively know are true or false, even according to the study most often cited by rape victims' advocates, the percentage of false claims is far, far greater than 5.9%.