Intolerance of rape is a noble impulse, but it should never override concerns about punishing the innocent for offenses they did not commit. At the University of North Carolina at Chapel Hill, there is a prevailing culture not only of intolerance for rapists, which is commendable, but also of intolerance for presumptively innocent men merely accused of rape, which is unconscionable. Men and women of good will attending UNC, their parents, and UNC alumni, need to be aware that extremists dominate the public discourse on sexual assault at the university.
In the wake of the Department of Education's April 4, 2011 "Dear Colleague" letter to American colleges, UNC has lowered its standard of proof for finding guilt in sexual assault cases to the "preponderance of evidence" standard. This is the lowest standard of proof used in our jurisprudence, meaning that there needs to be only a slightly more than a 50 percent likelihood of guilt to rule against the accused.
To put into perspective how far from the mainstream this policy is, consider that the Democrats in the U.S. Senate last year removed this standard from an early version of a bill to amend VAWA.
On college campuses across America, young men are taught the necessity of unambiguous consent before engaging in any sexual activity. Jon McCay, UNC's former student attorney general, said that "only a clear ‘yes’ means yes. Consent isn’t supposed to be vague.'” No sane and rational person would suggest that a young man should proceed if he is only 50.1% sure that the young woman consented. Yet, the same people who advocate the necessity for certainty in the bedroom find it perfectly acceptable for a college disciplinary board to expel a young man for alleged sexual assault when it is only 50.1% sure that he is guilty.
The preponderance of the evidence mandate has not been challenged in court yet, but Hans Bader, an attorney who formerly served in the office at the Department of Education that issued the "Dear Colleague" letter, has cogently explained that it is illegal. See here.
Until this standard is challenged and declared unconstitutional, it poses a serious threat to innocent men wrongly accused of sex offenses on campus. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman of Cornell said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She added that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Prof. Kevin Clermont said that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.”
Even attorney Brett Sokolow, probably the most prominent victim's advocate on American campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.
It is fair to conclude that UNC felt obliged to follow the Department of Education's mandate to lower the standard of proof. It could have adopted the Princeton alternative, which strikes a fair balance to serve the interests of both the accused and the accuser. It could have emulated Cornell, where there was a vigorous debate with prominent voices decrying the injustice of the standard before the school grudgingly accepting the Department of Education's directive. It could have followed Harvard's lead and resisted the Department of Education's change. Or it could have used the legal authorities marshalled by attorney Hans Bader to mount a legal challenge to this unjust administrative fiat.
Instead, UNC not only accepted the change, it embraced it. Amanda Claire Grayson, attorney general of UNC's Honor Court, bluntly explained that the change in the standard of proof will make it easier to find students guilty of sex violations since complainants now need less evidence to prove their case.
Jan Boxill, chairwoman of UNC's faculty executive committee, acknowledged the equally irrefutable point that sexual assault cases are difficult to prove. "It’s difficult for anyone to come to a conclusion because you come down to ‘he said, she said’,” Boxill said. "It will require some careful judgements.” But that difficulty doesn't seem to trouble her because she said the change will make the process more efficient. “It what’s best for our students,” she cryptically observed.
An editorial in the student newspaper, the Daily Tar Heel, applauded "easing up on the burden of proof" because that "will allow for harder crackdown on sexual assault cases." The editorial commended the school for "trying to . . . better protect the victims."
They've got it backwards. The fact that there is little evidence to prove sexual assault cases is never a valid justification to rig the process to make it easier to find the accused guilty. It is, rather, a compelling reason to be ever more vigilant of the dangers of wrongfully punishing an innocent man based on threadbare evidence.
The voices making themselves heard on this issue at UNC evince a shocking absence of appreciation for the critical balance every civilized society must strive to achieve: on the one hand, we must strive to eradicate heinous sex crimes by punishing offenders, and, on the other, we must insure that the innocent aren't punished with them. The entire emphasis of the UNC extremists is on the first half of that balance; the latter half seems never to have occurred to them. They blink at principles of fairness and due process that have informed Western Civilization's jurisprudence for centuries, including the principle that 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.) And that's the point that is most frequently misunderstood in the debate about the "Dear Colleague" letter: a wrongful acquittal is a terrible thing, but it is never the equivalent of a wrongful adjudication of guilt. The risk of getting it wrong is why the standard of proof has to be higher than "preponderance of the evidence."
When UNC recently decided that sexual assault cases will be handled by students, faculty and staff on the Student Grievance Committee instead of the student Honor Court, which handles all other alleged student disciplinary offenses, the Daily Tar Heel exclaimed: "In hearing cases of sexual assault, the needs of the victim should be given first priority." In addition, "the University community must therefore keep a critical eye on the implementation of the new policy to ensure victims are treated fairly by this system."
In fact, the "first priority" in any disciplinary hearing is to do justice. And both the accuser and the accused must be "treated fairly." The Daily Tar Heel seems less interested in seeing that justice is done than in insuring that every accuser's claim results in a finding a of guilt. By branding accusers as "victims," the Daily Tar Heel evidences an unbecoming gender bias, and does a disservice to UNC's student body, which rightfully expects fairness and impartiality in its college newspaper.
And incidentally, some in the UNC community expressed concerns about the biases of the Student Grievance Committee, but those concerns were quickly swept under the rug. Dean of Students Jonathan Sauls said internal bias in any case is not a bad thing, "it ensures there is a broad array of perspectives.” To put it charitably, this view is peculiar, not to mention diametrically opposed to principles long cherished by our jurisprudence, where even a whiff of bias is a cause for concern. But, then again, UNC's Student Grievance Committee, we are told, is an improvement over the American judicial system that was forged in the furnace of the common law over the course of centuries. “It’s going to have the elements of the judicial process, but it is also going to try to more effectively hear both sides of the story and give fairer rights to both parties,” said Student Attorney General Amanda Claire Grayson.
If all of this isn't sufficiently disconcerting, then consider the Daily Tar Heel's take on the school's new definition of "consent" -- whether a sober, reasonable person would have known that the complainant was incapacitated. What's the problem with that? The Daily Tar Heel's reaction is breathtakingly naive and would be laughable if it weren't for the dangers it poses to presumptively innocent men: "The definition of consent adopted is limited," it exclaims, "easily manipulated and depends wholly on the perspective of the accused or what the perspective of a rational person in their shoes would be. This is problematic for victims because it makes the definition of sexual assault more subjective."
Unfortunately, multiple readings won't clarify it. First, there is nothing "subjective" about the definition. Second, The Daily Tar Heel seems to think it is appropriate to require men to be mind readers, and for women to have the right to declare that they did not consent, regarardess of the fact that their words and outward manifestations of assent says they did. Our jurisprudence has long recognized that the only appropriate test for discerning if a party consents is whether a reasonable person in the position of the alleged rapist would have believed that the other party's words or outward conduct manifested consent. Consent can never be properly assessed by examining the subjective, undisclosed desires and whims of the party who supposedly manifested, or didn't manifest, consent. This is a principle so well-settled that the Daily Tar Heel's editorial only underscores how terribly unschooled in these matters its editorial writer(s) are.
The Daily Tar Heel isn't finished: "Under the new definition, a person can’t give consent if they suffer an intellectual disorder, if they are 'incapacitated' by drugs, alcohol or other impairing substances. . . . . While this is well-worded, one change is not as comforting. The new policy implies that alcohol consumption is not enough to preclude consent."
This is another absurdity scarcely worthy of rebuttal. All manner of substances and conditions can influence and impair one's decision-making capacity. To transmogrify into rape every sex act performed while one or both parties is in that condition would turn eons of settled law, not to mention human custom, on their heads. UNC men by the hundreds would be expelled each school year if this were the rule. The Daily Tar Heel tarnishes whatever credibility it might have had by positing puerile positions like this.
We are certain that there are many mature and rational voices at UNC who understand that these are serious issues worthy of a discussion more elevated than "always believe the accuser" and who are concerned about the critical balance referenced above. Too often, rational voices are deprived of a platform, or they are afraid to speak out. Unfortunately, the extremists will continue to drive the policy at UNC and on other U.S. campuses until the rational voices make themselves heard.