Monday, May 18, 2015

Writer says that some who believe college rape cases should be handled by the criminal justice system are practicing 'a subtle misogny'

I am late discussing Alexandra Brodsky's jaw-dropping piece about campus rape that appeared a few months ago in The American Prospect. It starts off with a veneer of reasonableness but quickly reveals itself to be yet another tired piece advocating that we should just believe rape accusers and stop getting so hung up over fairness for the accused.

Brodsky takes issue with those who suggest campus kangaroo sex tribunals can't provide justice in "he said-she said" sex cases and that that the only venue where justice is properly meted out is the criminal justice system. She writes: ". . . for some but not all, this devotion to the criminal law response suggests a subtle misogyny that many focusing on this issue have internalized."

There they go again. No, dear reader, this is not The Onion--this is what passes for public discourse about campus sexual assault in 2015. If you dare mention "due process" or the criminal justice system in connection with college rape claims, your credentials for fairness to women are called into question. Can the discourse get any loonier, any more hateful, any less productive than this? Add Brodsky's quote to the list.

Brodsky's piece devolves to tired feminist cliches."No one cries foul when a student is expelled for cheating on an exam based on the preponderance of the evidence." And: "Why do we think an accusation of sexual assault is any more likely to be false than an accusation of a punch in the face?"

First, with respect to the "preponderance of the evidence" standard, it is well to note that the Department of Education has not mandated, under the threat that schools will lose their Federal funding, that cheating or punching someone in the face be adjudicated by the preponderance of the evidence standard. Only sex offenses (which almost always are lodged against male students) are subject to that mandate. Many schools still adjudicate cheating and claims of being punched in the face using the much higher "clear and convincing evidence" standard.

Second, Brodsky compares college kangaroo sex tribunals to civil courts where, generally, only money damages are sought and the preponderance of the evidence standard is employed. Here's a deal for you, Brodsky: we'll take the civil standard for campus sex offenses so long as it comes with the protections provided to the defendant in civil proceedings. In civil cases, the defendant is afforded all manner of evidentiary protections that colleges routinely deny young men accused of sex offenses. In civil cases, defendants are allowed to be fully represented by counsel at every stage of the proceeding. They are permitted to vigorously depose prior to trial, and vigorously cross-examine during trial, the accuser and any other pertinent witnesses. Aside from depositions, they are also permitted to engage in all manner of discovery, including proffering requests for admissions, requests for production of documents, and interrogatories. And if the plaintiff fails to respond to proper discovery requests, she is sanctioned by the court, up to and including dismissal of her case and requiring her to pay the other side's attorney's fees. Hearsay evidence is excluded, as is evidence whose probative value is outweighed by its prejudicial effect to a party. Trial and appellate judges are lawyers bound by centuries of common law precedent. And the defendant has a hand in picking the jury in order to insure fairness in the adjudication. The college kangaroo sex proceeding has no relation to the orderly administration of justice in civil court.

Third, show me any serious law enforcement official who thinks investigating a typical claim for a punch in the face is anywhere near as difficult as a typical, murky, "he said-she said," alcohol-fueled college sexual assault case involving student acquaintances who may or may not have been intimate. Show me even one. As one writer recently explained: "Rape cases are among the most difficult to prove, and no amount of ideology-fueled wishful thinking can clear memories fogged by alcohol or reconcile the different perceptions of people navigating all the complexities of the most intimate of human interactions." Does Brodsky really need me to chronicle the college sex cases that turned out to false or at the very least, very questionable, the past few years? She can start with Hofsta and work her way up to "Jackie" at UVA and the mattress girl at Columbia.

Brodsky expects her readers to believe that greater caution is exercised in charging and finding guilt in rape cases than in certain kinds of other cases because of "the differing confidence placed in different kinds of victims." Here's where she loses all credibility with anyone looking at the issue objectively. Rape cases are difficult to prove because they are difficult to prove. Period. The gender of the alleged victim has nothing to do with it.

The fact is, rape is regarded as an abomination in our culture, and even its accusation is enough to trigger demands for retribution, sometimes even vigilante "justice."  But justice cannot be meted out in response to a public outcry. Nor can it be administered by pretending that rape cases are open-and-shut cases that begin and end with the word of the accuser. That sort of thinking was prevalent in the shade of the hanging trees of the Old South.

If we are to have a serious discussion about how to fairly handle college rape cases, we need to ditch the simple-minded mantras and stop insisting that anyone who acknowledges the difficulties in investigating rape cases must hate women. Brodsky is yet another one who has exiled herself from the adult table on this issue.