Professor Alan Dershowitz is especially fond of this line: "Some people regard rape as so heinous an offense that they would not even regard innocence as a defense." Dershowitz has been using that line for years but, sadly, it has recently lost its sting because the extremists Dershowitz references are now the ones making public policy.
Last week, United States Congressman Jared Polis made the following other-worldly comments during a congressional hearing on college sexual assault: ". . . even if there is only a 20 or 30 percent chance that it [sexual assault] happened, I would want to remove this individual” from the college where the accusation occurred. And: “. . . if there’s 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.”
Polis' blatant hostility to fundamental notions of fairness was matched only by his shocking insensitivity to the countless young men who've been wrongfully expelled for imaginary sexual assaults and their families. Polis's repulsive comments came during an exchange with noted civil libertarian Joe Cohn of FIRE. Polis garnered cheap applause by derisively trivializing the harm caused by wrongful expulsions, then he refused to allow Mr. Cohn to speak to the issue.
Polis's barbaric sentiments flip on its head a long-settled principle of jurisprudence famously expressed by the celebrated English jurist William Blackstone: it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.) "Blackstone's formulation" is not merely one of the pillars undergirding our sense of justice, it is the very hallmark of a civilized society, one of the things that separates us from tyranny.
Sadly, Polis's backward views are not isolated curiosities, they are becoming mainstream in a culture that regards innocent young men as necessary collateral damage in the war on sexual assault. I am not referring to the "rush to judgment" crowd that wrongly assumes guilt based on nothing more than an accusation and a bias that women never lie about rape. (I note in passing that of the rape claims that can be definitively classified, false claims are more common than actual rapes.) I am, rather, referring to people who acknowledge that the accusation may be false but who have no compunction about punishing the accused anyway.
A much-touted new survey on sexual assault in American colleges shows that college women believe, by an overwhelming margin, that it's better that innocent young men be punished for offenses they didn't commit than to allow a guilty man to go free. (Question 32) This question exposes a sharp gender gap--most college men take the opposite view.
Last year, Amanda Childress, Sexual Assault Awareness Program coordinator at Dartmouth College, declared that campus policies aren't going far enough to protect students. She asked: "Why could we not expel a student based on an allegation?" Dartmouth defended Childress's comment, noting that she "was asking a question—a provocative one—meant to generate dialogue around complex issues . . . .”
Ezra Klein evinced satisfaction that innocent young men may be expelled for rapes they didn't commit: "Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty D–n Sure."
When a court held that school districts do not have to disclose names of teachers who've had unsubstantiated allegations of sexual misconduct made against them, a newspaper took offense: "Yes, public knowledge of the allegation could lead to the end of a teacher’s career even if it were proven to be false. . . . . A few teachers being unjustly accused is far less important in the long run than the outing of a school district that hides evidence of patterns of misbehavior by teachers."
The Princeton student newspaper defended lowering the standard of proof to find students guilty of sexual assault because the evidence to prove sexual assault is often unclear. The paper acknowledged that more innocents may be found guilty under this standard, but, the editors told male students not to worry--the disciplinary committee has discretion to impose reduced punishments. (And, no, I'm not making that up.)
The Columbia University Marching Band instituted a policy of expelling from the band persons merely accused of sexual assault. In an official statement, a spokeswoman of the band acknowledged that "there could be problems with the policy," but said "[w]e don't care if [the allegation] is not confirmed . . . ." Also at Columbia, student editors of a school blog asked a staffer to "resign" based on an accusation of sexual assault, explaining: "Our decision does not reflect a position on the innocence or guilt of this former staff member . . . ."
During a panel discussion on sexual assault at the University of Wisconsin-Madison, a teaching assistant "said she did not feel that the notion of innocent until proven guilty should apply to rape cases because it only helps protect the rights of the accused instead of the victim. Only one of the panel members spoke out in disagreement with this statement." One student stood up to declare that she was "horrified" to discover that her accused rapist had due process rights.
When police arrested identical twin brothers because they believed one them might be a rapist, many of the comments beneath the story were beyond appalling: "Wow just shoot them both! No biggie!" And: "Shoot 'em both and let God figure it out!" And: "Spit the difference. Charge each one with three of the six assaults." And: "Well, we've got it down to two suspects FLIP!" And: "Just shoot em both obviously there's something messed up in their DNA."
When five innocent young minority men were wrongly arrested for rape at Hofstra University, they were "treated like animals" in jail; one of them was fired from his job; one was expelled from Hofstra; and the news media skewered them by treating the accusation as definitive fact. Even after the false accuser admitted she lied under oath and there was no doubt about the young mens' innocence, a writer for a major New York daily declared that they got "the good scare that they well deserved." As if that wasn't bad enough, the wrongly accused young men were booed when they appeared on the Steve Wilkos show.
The Dept. of Education's infamous April 4, 2011 "Dear Colleague" letter requires schools to give accusers protection from their alleged sexual perpetrators even before an investigation is completed by insuring the accuser and accused are kept separate--the letter goes out of its way to say that "a school should minimize the burden on the complainant" (not the accused) when it does so.
When this blog writes about Blackstone's formulation, we are sometimes greeted with very angry reactions. One reader wrote: ". . . . you thump your chest and break your arm patting yourself on the back because you stood on the wall for the" one innocent guy "when 17 [sexual assault] victims and their families can't get any sleep because there is no justice." Another reader wrote: ". . . Fuck you and I hope you get raped, and told to 'stop being hysterical' and that you're making it up by the police." Another wrote: "Yes, I do hope you get raped too. Brutally. This blog is just a space for a bunch that's frightened of women's rights. Ah, I do pity these losers!" (Do you see why we stopped allowing comments?)
Back in 2001, Catherine Comins, then-assistant dean of student life at Vassar, spoke to Time Magazine about rape: "Comins argues that men who are unjustly accused can sometimes gain from the experience. 'They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. 'How do I see women?' 'If I didn't violate her, could I have?' 'Do I have the potential to do to her what they say I did?' Those are good questions.'"
Time Magazine recognized the injustice in Comins' comment, noting that "there is an ugly element of vengeance at work here." Sadly, that "ugly element of vengeance" has become the prevailing culture on American college campuses and the motivating impulse of the people who dominate the public discourse on sexual assault in America.