Wednesday, August 21, 2013

Yale advocacy group declares war on the presumptively innocent accused of sex offenses

Students Against Sexual Violence at Yale have proposed draconian measures against students merely accused of, and not found responsible for, sex offenses.

Regular readers here know that in April 2011, the Department of Education issued a letter telling schools that young men on campus must be found responsible for sex offenses if the evidence tips ever so slightly in favor of the accuser's narrative.

Now, a student group at Yale wants expulsion to be "the standard punishment" for perpetrators of sexual violence.

This is wrong for at least two reasons. First, when an accused is stripped of his Constitutional rights in adjudicating his case, as is the norm on American campuses for sex offenses, the punishment imposed after finding him "guilty" should be less than in settings where the accused is afforded the full panoply of due process protections.

Second, the proposal does no favors for rape victims. Where schools mandate extreme punishments for sexual assault, triers of fact are less likely to find guilt in doubtful cases because they know the consequences for the accused are extreme. In A Separate Crime of Reckless Sex, 72 U. Chi. L. Rev. 599, 655-56 (2005), Professors I. Ayres and K. Baker explained:
. . . if the . . . sanction is too strong, there is not likely to be widespread enforcement. . . . attempts to change a norm by severely punishing that which has previously been unaddressed or underenforced are often unsuccessful.

The simple fact is that the public at large often refuses to see the "nontraditional" [acquaintance] rapist as a rapist at all and therefore refuses to either mark him or punish him as such. After an acquittal in a well-publicized college gang rape, one juror explained that the main concern of some jurors was not wanting "to ruin the boys' lives." Decisionmakers may be willing to ruin the life of a "real rapist," but they will not impose comparable punishment for what they see as a less severe crime.
It is well to ask if the advocacy group really wants to attack the problem or to make a statement.

The advocacy group also wants the school to "contract with a trained victim’s advocate to guide survivors through the process." They are not at all concerned with providing the accused student a trained advocate to guide him through the process. The reason for this is obvious. The advocates who are calling for a "trained advocate" have already decided the accuser is a "survivor." Their own language betrays an unfortunate bias that renders their demands suspect.

In addition, the school "must initiate a disciplinary hearing against students reported to the school for sexual violence more than once, whether or not the reports were filed formally."

Never mind the merits of the initial informal or subsequent complaints. The accused must be put on trial because other young men have gotten away with rape.

The extremists have tasted blood following the April 2011 "Dear Colleague" letter, and they are going in for the kill. Let the witch hunts begin.