Wednesday, May 14, 2014

Sandra Fluke wants to further erode your son's rights on campus

Sandra Fluke and two other women have proposed certain "necessary measures" for universities to combat sexual assault. Their advocacy, if accepted, would further erode the rights of men accused of sexual assault on campus.

Among other things, they say this: "Schools should have rape shield statutes to protect assault survivors from character assassination, which sadly often occurs in hearings."

Let's put aside any discussion of the substance of this suggestion -- rape shield laws have been enacted across America (but the actual laws are not as simple, or as broad, as Fluke et al. suggest). Let's instead put their suggestion into larger context: Fluke et al. want colleges to adopt this one, significant rule of evidence -- a rule that favors the accuser -- but they have no concern whatsoever about whether colleges adopt evidentiary protections for the accused.  I suspect they would oppose any such rules.

The fact is, college disciplinary proceedings typically are not governed by codified rules of evidence. They are the legal equivalent of a free-for-all where anything goes, and the quality of "justice" varies from one panel to the next. Such proceedings have none of the multitude of safeguards that courts employ to promote fairness for all parties.

By way of example, there are no rules stating that only relevant evidence may be admitted, and that even relevant evidence may sometimes be excluded; there are no rules forbidding or limiting the admission of evidence of other wrongs to prove conduct in conformity with character; there are no rules limiting the admission of evidence of subsequent remedial measures or withdrawn guilty pleas; there are no rules regulating the admissibility of out-of-hearing statements by persons who are not present to testify; there no rules regulating the admission of expert or lay opinion evidence.

In judicial proceedings, those points are all addressed in carefully crafted rules of court designed to insure fairness.  Do Fluke and comrades want to see them enacted in college proceedings? There is no indication they do.

Whether schools should adopt a rape shield law is topic worthy of consideration -- I think they should, but only if colleges also adopt the entire panoply of evidentiary rules that insure fairness for all parties. Justice, fairness, and due process are supposed to be even-handed, not lop-sided. That Sandra Fluke et al. evince no concern for the rights of the presumptively innocent is troubling beyond measure.

But wait, they aren't finished yet. They also say this: "Survivors should also be given options -- either an open hearing or a closed-door model -- and given adequate time to decide which path is best for their individual scenario."

This suggestion is so backward, it is difficult to know where to begin. It starts with the other-worldly premise that accusers are necessarily "survivors," and therefore, accusers should have a significant right that the accused does not have-- specifically, to actually dictate the form of the hearing.

The wrongness, the puerility of these suggestions is so obvious that they seem unworthy of serious debate. The fact that childish suggestions are entertained in the sexual assault milieu tells us how far we've strayed from rational discourse in this politicized field. Let's not mince words: these suggestions are as stupid as they are unfair, and that's saying a lot.