Thursday, April 14, 2011

An Open Letter to People Concerned About Men's Rights: the Feminists Understand What a Big Deal the April 4 Directive Is, Why Don't We?

A very prominent men's rights advocate wrote to me yesterday: "[P]eople are not going to understand this 'preponderance of evidence' thing, unfortunately."

He was referring to the Obama administration's April 4 directive to colleges that, to be compliant with Title IX, they must apply the lowest standard of proof for all college disciplinary proceedings involving sexual harassment (which includes sexual assault): a "preponderance of the evidence standard," which means that there need only be a slight probability that the offense occurred in order to hold the accused (almost always a male for sex offenses) responsible.  The vast majority of institutions currently apply the "clear and convincing" evidence standard, see here, which means that to find an accused responsible for sexual assault, the school must produce evidence that unequivocally establishes a very high probability that the alleged assault occurred.

I fear that the prominent men's rights advocate is correct -- most people are not going to understand this. And that concerns me greatly.

I fully appreciate that many of our readers would prefer to read stories about the latest false rape atrocity, or chivalry on Titanic, or Crystal Gail Mangum's latest brush with the police.  Truth be told, I would prefer to write posts like that.  But this topic is far more important, and if we want to do more than vent and wring our hands about how unfairly men are treated, we need to make certain we understand this issue. If if seems like so much legal mumbo jumbo that doesn't matter in the real world, I respectfully suggest that we need to raise our level of sophistication. This is a critical issue. It is especially critical for anyone who has a son, a nephew, or a younger brother in college or heading to college. All of them -- and all of us -- need to take this very seriously because, my friends, radical feminists certainly understand what a big deal this is.

Need proof of that? Wendy Murphy -- who once branded the Duke lacrosse defendants as "rapists" because, she said, Crystal Gail Mangum was "entitled to the respect that she is a crime victim," and who also said "I never, ever met a false rape claim" -- that Wendy Murphy, is absolutely delirious about the April 4 directive. She said said this about it:

"It's hard to exaggerate the importance of the new advisory that the White House put out last week about the application of Title IX to tougher college standards on sex assault." 

For once, Wendy Murphy is right. 

At Stanford, Associated Students of Stanford University President Angelina Cardona summed up how central this directive is to feminists: “Lowering of the standard of proof is absolutely crucial to the women’s community.”  See here.


Let's answer some fundamental questions about this new directive.
Why is this such a big deal? 

Why is this change in the standard of proof ground-zero for this particular blog?  It's very simple. The only reason that the vast majority of colleges currently apply the clear and convincing standard as opposed to the lower "preponderance of the evidence" standard is to insure that innocent persons are not held responsible for wrongs they did not commit. 

Why do you think that our criminal law requires proof of guilt "beyond a reasonable doubt"? Same reason, and no other. As Justice Brennan, a liberal titan of our Supreme Court, once wrote: "It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned."  In re Winship, 397 U.S. 358, 364 (1970). Simply put, the higher standard of proof is bottomed on a fundamental value determination that it is far worse to convict an innocent man than to let a guilty man go free. It is a manifestation of Blackstone's Formulation, the topic that has aroused the most anger of anything we've written on this blog (when I first wrote about it, feminists publicly called for me to be "brutally raped").

By the sake token, when the standard of proof is lowered, a policy decision is made that it is acceptable to risk holding more innocent persons responsible for wrongs they did not commit.  That's because you increase the risk of getting it wrong. That's what's happening here -- and there is no discussion about that risk, or the interests of the persons who might be wrongly held responsible for something they didn't do. This is a microcosm of everything we preach: innocent men wrongly accused of rape are regarded as necessary and unfortunate collateral damage in the "more important" war on rape.  The goal is to nab more rapists, and if some innocent men are nabbed with them, so be it.  Why does that not strike everyone as morally grotesque?

One clarion voice in all the cacophony about the new directive is Ada Meloy, general counsel for the American Council on Education: "I think that colleges and universities do need to be careful to keep in mind that being wrongfully accused or wrongfully found to have committed these offenses is extremely damaging, so care must be taken at every stage of the proceedings to be fair in reviewing the matter," Meloy said. "I know from my years on campus that these are not always simple issues to resolve. There are almost always going to be two sides to the story, and particularly since this mainly addresses peer-on-peer harassment, both sides need to be listened to and considered." See here.

Why should colleges apply a standard of proof higher than "preponderance of the evidence"?

First, let's make clear: few people are suggesting that college disciplinary boards should apply the criminal "beyond a reasonable doubt" standard.  A college disciplinary determination cannot deprive a young man of his liberty or otherwise impose criminal sanctions.

But to pretend that the sanctions a college can impose are equivalent to the money damages awarded in civil actions (where "preponderance of the evidence" is the standard of proof) is ludicrous on its face.  The middle standard -- "clear and convincing evidence" -- is appropriate for college disciplinary proceedings.  Why?  Because an expulsion for sexual assault will affect a young man's right to attend any other school, including graduate school, and will heavily impact his future ability to earn a living. It will, in short, disadvantage him for the rest of his life. Accordingly, a student’s interest in obtaining a college degree, with all it entails, is of such weight and gravity that colleges should justify any decision to deprive a student of that interest with proof more substantial than a mere preponderance of the evidence.

It is well to note that even for civil actions seeking only money damages, some states impose the enhanced “clear and convincing evidence” standard to prove claims where fabrications are easiest to make (e.g.,claims of oral contracts, fraud, and promissory estoppel). That standard is all the more appropriate in “he said/she said” claims of sexual assault, where lies are easy to tell, are too frequently uttered, and are incredibly destructive of the men about whom they are told.

Ironically, schools are free to still apply a higher standard of proof to non-sex offenses.  They have it totally backwards, given that sexual assault is generally the most serious allegation that occurs on campus, and given that sexual assault cases are often "he said/she said" disputes, the Department of Education has selected exactly the wrong offense to lower the standard of proof. Sexual assault should carry the highest standard of proof of any offense that comes before a college disciplinary board.

What prompted the April 4 directive?

Democratic Party politics; specifically, appeasement of women's groups. Nicole Eramo, associate dean of students and a chair on the sexual assault board at the University of Virginia, said: “It seems that this particular [Obama] administration has a renewed interest in the topic of sexual assault.” See here.

For reasons financial as well as political, progressives have insisted for many years that our college campuses are cisterns of male sexual predatory activity, even though they aren't. Enormous resources are funnelled to fight rape on campus even though those resources would be better used to fight sexual assault and every other social pathology in the inner city. The vast majority of rape offenders come from lower socioeconomic classes and are under-educated, under-employed, and under-skilled.  Progressives would prefer everyone believe that there is no profile of the typical rapist.  See here.

Is there a legal basis for the April 4 directive?

Former Education Department lawyer Hans Bader posits a well-reasoned argument why the Education Department is wrong as a matter of law: “The Education Department’s position is based on a misunderstanding of who is subject to Title IX, the federal law banning schools from committing sex discrimination. Title IX’s requirements apply to schools, not individual students.” Read the entire piece here.

What rationale did the Obama administration use to justify the April 4 directive?

The same old campus rape panic that feminists have been peddling for decades.The Education Department’s directive was premised on research finding that one in five college women are victims of sexual assault or attempted sexual assault. The survey that concocted that outrageous number utilized self-selecting respondents, and the problems with such methodology are many and insurmountable. Heather MacDonald summed it up succinctly: the one-in-five stat is ”bogus.” This is not even to mention that the the one-in-five figure yields numbers wildly inconsistent with even the inflated 90 percent under-reporting standard sometimes cited by the sexual grievance industry to justify its existence. The fact is, if that one-in-five figure were accurate, our college campuses would be more dangerous places than even the Tadmor Prison in Syria, where the bloodthirsty guards butcher inmates with axes for the fun of it. Citations for these points are contained in this post.

Are there other problems with the April 4 directive aside from lowering the standard of proof?

You bet there are.  Lowering the standard of proof is merely the first among many. Colleges can no longer wait for law enforcement to investigate a sex offense, even though law enforcement personnel are trained to investigate sex offenses and do it for a living while college administrators and the students on disciplinary panels generally have no idea how to properly approach these issues.  If they're going to lower the standard of proof, at least they should let the experts do the investigation!

The April 4 also directive requires equal treatment for the accuser and the accused -- e.g., now she's allowed to appeal an unfavorable outcome, too -- even though the very nature of the hearing process is not equal because only the accused is subject to penalties.

The April 4 directive also says that under Title IX, when there is an accusation of sexual assault, the school must take appropriate interim measures before the final outcome of the investigation. These measures include separating the alleged perpetrator and the complainant. All well and good — but that’s not all it says. It goes on to state the following: “When taking steps to separate the complainant and the alleged perpetrator, a school should minimize the burden on the complainant, and thus should not, as a matter of course, remove complainants from classes or housing while allowing alleged perpetrators to remain.” The import is clear. In “he said/she said” disputes about sexual assault, he is presumed the guilty party from the moment of her accusation. At least the Department of Education is up front with its misandry.

Are schools reacting to the April 4 directive?

You bet. Yale announced it is immediately switching to the lower standard. See here.

Stanford is also lowering its standard.  See here.

Brandeis is switching over, too. See here.

The University of Virginia, which, according to Wendy Murphy, is one of the schools that is "violating women's civil rights by applying the higher standard," will "definitely be taking a look at it and considering what we need to do to be in compliance.”  See here.


This is ground zero for issues affecting men, folks. The April 4 directive is wholly indifferent to the concerns of the falsely accused. Beyond that, the process by which it was foisted on colleges -- one attorney called it "legislating through administrative fiat, in a way that is arbitrary and capricious" (see here) -- should be a grave concern to all of us. It was, in fact, handed down in the dead of night, beneath the radar, and there was no public discourse about it even though it raises concerns that ought to prompt a national debate.

But that can't happen unless we awaken men and women of good will from their slumber. 

I am talking to you.