Wednesday, April 16, 2014

Sen. Clare McCaskill's nationwide survey to colleges suggests that affording students accused of sex offenses due process might discourage accusers from reporting

Sen. Clare McCaskill has sent out an extensive survey about sexual assault to 350 college and university presidents. The survey is being promulgated by McCaskill's Subcommittee on Financial and Contracting Oversight, which is charged with "ensuring that the federal government spends taxpayer money as wisely and effectively as possible." What that has to do with sexual assault on American college campuses is anyone's guess, but in any event, McCaskill has identified herself with the problem of sexual assault in the military and on American college campuses.

It is a worthy impulse to gather information about the ways American institutions of higher education treat serious criminality, but this survey is troubling in several critical respects and should be recalled and rewritten. We will focus on just two problems.

First, the survey repeatedly classifies persons who make accusations of sexual misconduct as "victims," and in one place, it calls persons merely accused of sexual misconduct "offenders." That should be unacceptable to all persons of good will.

Words matter, and we can only assume that McCaskill and her staff know better than to brand persons accused of sexual misconduct as guilty merely by virtue of the accusation. This, of course, does a grave disservice to the presumptively innocent who are accused of sexual misconduct. We take offense when newspapers do it (we once complained to the New York Times for calling a rape accuser a "victim," and the Times reporter immediately removed the word "victim" in the on-line content of the story), and it is all the more offensive when our elected representatives do it. Sen. McCaskill represents not just accusers but persons who are accused as well. The survey should be recalled and, where appropriate, the word "victim" should be changed to "accuser."

Second, the survey contains a most troubling, and frankly bizarre, query on page 14:
Below is a list of policies and procedures that may discourage victims from disclosing and reporting assaults at some schools 
1. Disclosure of offender’s rights in the adjudication process
. . . .
The survey asks the college to identify whether or not it adheres to this policy.

The survey's clear implication is that it is somehow improper to insure that students accused of serious sexual offenses are aware of their rights. Advising the presumptively innocent of their rights is both a fundamental and immutable aspect of due process long enshrined in the laws of every enlightened civilization. A student's due process rights should never be considered a candidate for elimination or compromise because they might "discourage" an accuser from making a formal report, and to suggest otherwise is both appallingly insensitive to the young men accused and offensive to long-settled principles of fairness. It should have no place in a survey promulgated by a United States Senate subcommittee.

This survey is but the latest manifestation of hostility to the rights of young men accused of sexual offenses on campus. College administrators, already skittish about federal oversight of their handling of sexual assault, need to be assured by Senator McCaskill and her subcommittee that disclosing the accused's rights in the adjudication process is not merely acceptable but mandatory.