Tuesday, May 6, 2014

Yes, Department of Education, colleges routinely mishandle sexual assault claims, but not in the way you think

The gender zeitgeist du jour is that colleges routinely mishandle sexual assault claims to the detriment of accusers. The evidence for this is elusive at best. But as explained below, colleges are almost certainly mishandling sexual assault claims to the detriment of accused students.

55 Schools Under Investigation

The Department of Education has announced that it is investigating 55 schools for allegedling violating Title IX in their handling of sexual assault cases. It appears that what is happening is that a handful of zealous sexual assault accusers are upset that the sexual assault complaints they filed at their universities have not led to discipline against the men they accused. As a result, they filed federal complaints under Title IX. The Department of Education has taken up their causes, consistent with the current administration's ideological agenda. Professor KC Johnson explains that "the list can be used to intensify the impression of an 'epidemic' of sexual assaults on campus, and thereby boost popular and political support for the Task Force/OCR joint call for reducing due process rights to students on campuses around the country."

The progressive news outlets have run with it. They are treating the accusers as if they are "victims" who were denied justice by schools that turn a blind eye to rape. It is critical to note that these news outlets never bother to discuss, much less investigate, the accused student's side of the story. This is so even though, in many cases, the colleges, using a preponderance of the evidence standard, found the accused's side of the story more credible than the accuser's. No matter, it is enough for these news outlets that a woman claims she was victimized without bothering to consider the evidence. Perhaps the most appalling example of this mindset appeared in Slate yesterday when the writer took a broad-brush and labeled the accusers "heroic activists." So much for impartiality, fairness, and journalistic standards.

The New York Times took up the accusers' cause in a front page story last weekend. The Times referred to them as"victims," without bothering even to mention the accused students' side of the story, much less investigate their defenses. Despite the Times sympathetic treatment of accusers, the picture the Times painted was one of accusers upset that they were not automatically believed by their schools. Here is how the Times story starts:
Emma Sulkowicz said she knew it would be awful to go before a disciplinary panel and describe being raped by a fellow student, but nothing prepared her for what came next. She said one of the two women on the panel, a university official, asked her, repeatedly, how the painful sex act she described was physically possible. 
Already anxious and queasy, Ms. Sulkowicz, a junior at Columbia University, said she felt her body freeze up and her heart race as she tried to answer questions that seemed to her to reveal not just skepticism about her story, but also disturbing ignorance in someone who had supposedly been trained for this role.
Feelings are elevated to the status of injustice. The reader is supposed to assume that the accuser was violated because she said so. The New York Times described the problem in a way that clearly signaled its bias: "Increasingly, stories like this are playing out at colleges across the country, as more victims go public, more of them file formal federal complaints, a new network of activists makes shrewd use of the law and the media, and the Obama administration steps up pressure on colleges."

This is not to say that justice was done in all or even most of the cases that prompted the Department of Education investigation. We don't don't know if it was, and neither do the New York Times or Slate. We do know that by any measure it is wrong to treat the accusers as "victims" -- which implies that the men they accused must be guilty -- merely because they feel they were denied justice.

Schools Routinely Mishandle Sexual Assault Claims: They Don't Know What They're Doing

Do schools routinely mishandle sexual assault claims? Of course they do. Colleges are uniquely ill-equipped to do justice in thorny matters of "he said-she said" sexual assault. Everyone who has ever studied the issue knows that.

But even if it were possible for schools to adequately investigate and adjudicate rape cases (it is not), the maximum punishment schools can dole out -- expulsion -- is scarcely enough to curtail rape. It isn't going to keep an expelled rapist from abusing women somewhere else, or even the same woman whose complaint led to the expulsion. In a country where the majority of college students are commuters, booting a rapist off campus isn't going to stop him from even legally frequenting the same off-campus hangouts where he committed his misdeeds as a student. If we were really serious about protecting women from rape, we would insist that every report be turned over to the professionals in law enforcement.

Schools Routinely Mishandle Sexual Assault Claims: To the Detriment of the Accused

Even the New York Times noted that schools are holding more men accused of sexual assault responsible. It quoted Colby Bruno, a lawyer at the Victim Rights Law Center in Boston who works on campus sexual assault cases, said: “We regularly see schools actually holding attackers responsible, even expelling them, which we just didn’t see just three or four years ago.”  But the New York Times doesn't bother to discuss the injustices to students accused of sexual offenses.

Brett Sokolow, the nation's foremost authority on colleges' handling of sexual assault, recently wrote: ". . . in the last two weeks, I've worked on five cases all involving drunken hook-ups on college campuses. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong." Mr. Sokolow says that schools are wrongly charging male students when students engage in mutually intoxicated sex. That this hasn't generated an outcry in the progressive news media is sadly predictable. When a Wall Street Journal writer recently said the same thing that Mr. Sokolow said, the feminist community had a conniption. It is unfortunate that there has been no outrage whatsoever, much less similar outrage, over the injustices Mr. Sokolow noted to five male students.

In addition, virtually ignored by progressive news outlets are disturbing allegations posited in federal lawsuits that college men are being denied due process in sex cases as part of a push to advance women's rights.

This mindset is consistent with the policies of the current administration, which has rolled back the due process rights of students (almost always male) accused in college sex cases, a move that is strangely applauded by progressives. Progressives who, in every other circumstance, champion the expansion of due process rights.