Wednesday, October 26, 2011

Congress is about to screw over your son

The draft VAWA reauthorization bill is a blatant, politicized, institutionalized embrace of partiality that favors the female accuser and maligns the male accused.

Did the headline get your attention?

This is the most important issue I know about for persons interested in men's rights. Radical feminists understand how important it is; too many persons concerned about men's rights do not.

The VAWA draft reauthorization bill being spearheaded by Senator Patrick Leahy incorporates the most important maladies contained in the heavily criticized, anti-male, April 4 "Dear Colleague" letter issued by Russlyn Ali of the Department of Education's Office of Civil Rights.

The "Dear Colleague" letter represents an assault on innocent college men because it makes it much easier to find them guilty of sex offenses. If Congress enacts the principal tenets of the "Dear Colleague" letter into law, and Obama certainly will sign it, it will become that much more difficult to repeal.

The proposed act, like the "Dear Colleague" letter, mandates that colleges find persons accused of sex offenses guilty if the "preponderance of evidence"--just a little over 50%--shows they did it. The vast majority of sex offenses on campus are lodged against men.  Most schools currently use the higher "clear and convincing" standard, which protects innocent men by mandating that colleges are certain of their guilt before they are expelled and their lives are forever altered.

The draft VAWA reauthorization bill abdicates the responsibility to set the standard of proof in cases involving sexual assault and other alleged sex offenses to the the Department of Education's Office of Civil Rights (OCR).

As OCR is currently constituted, this could scarcely be worse news for men on campus, or for persons concerned about a man on campus.

The most alarming language in the proposed law is found in the provision that tells colleges how they must adjudicate disciplinary proceedings involving sexual assault and other sex offenses:

"Procedures for on-campus institutional disciplinary action in cases of alleged domestic violence, dating violence, sexual assault, or stalking, which shall include a clear statement that—

(I) such proceedings shall—

(aa) provide a prompt and equitable investigation and resolution;

(bb) be conducted by officials who receive annual training on the issues related to domestic violence,    dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability;

(cc) apply the standard of proof recommended by the most recent Guidance issued by the Department of Education’s Office for Civil Rights . . . ."

The dangers to innocent men posed by these provisions are innumerable, and they are chilling. Let us briefly describe them.

ACCUSERS ARE CALLED "VICTIMS": The draft bill unitizes language that is offensive to innocent men unjustly accused of sex offenses on campus. VAWA currently provides that schools should establish the procedure that "students" should follow if a sexual assault occurs. The reauthorization bill changes the word "students" to "victims."   It also refers to the "accuser" as the "victim" even in situations where the college disciplinary hearing board has found in favor of the accused (e.g., it provides that the "victim" may appeal if she loses).

The change in nomenclature is blatant and purposeful. Congress should not be in the business of taking sides according to gender in cases involving alleged sex offenses, but any fair-minded assessment of the language in the draft law indicates that's exactly what it is doing. Congress has the duty to protect both the accuser and the accused; by branding any and all accusers as "victims," both before the school's hearing and even after the disciplinary board has found in favor of the accused, it is signaling a presumption that the accused--almost always a male--is guilty. It would be difficult to fathom a more crass, politically motivated bias.

PROMPT INVESTIGATION: The provision requiring schools to "provide a prompt" investigation and resolution is a nod to the Department of Education's April 4 mandate that schools should not await the conclusion of a criminal investigation before proceeding with it's own Star Chamber proceedings against men accused of sex offenses. 

This, of course, is precisely the opposite of what colleges should do. Colleges are not equipped either to investigate or adjudicate serious criminality such as acquaintance rape. Alleged sex crimes often often pose severe evidentiary challenges even for trained law enforcement personnel, much less amateur college sleuths.

The case of Caleb Warner illustrates the injustices that can occur to innocent men when schools push ahead with their own investigations and hearings before trained professionals are afforded the opportunity to conclude their own investigations. Caleb was expelled from college on a sexual assault charge before the police investigation revealed that Caleb was, in fact, the victim, and that his accuser had lied. Asked about the college's hearing that resulted in Caleb's expulsion, a police detective said, "All I can tell you is that the proceeding at the university took place before my investigation."

ONE-SIDED ASSISTANCE FOR "VICTIMS": The "officials" who will conduct the hearing must be trained on "how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability." Moreover, the accuser, but not the accused, is to be notified of her "rights."

Absent from the bill is even a hint, much less a mandate, that the officials conducting the hearing are to be trained to respect the rights of the presumptively innocent.  It is well to recall that Stanford trains its judicial panelists who preside over disciplinary proceedings involving allegations of sexual assault by using materials that assume the accused male is guilty even before the hearing has begun. The VAWA reauthorization bill could be read to lend Congress' imprimatur to such egregious training methods.

It is a hallmark of the American experience and a universally accepted tenet of the common law tradition that hearings be conducted with impartiality, fairness, and fidelity to the evidence. Adjudications of criminality should be free from even the appearance of bias. Those fundamental principles should never be tossed onto a scrapheap of politicized indifference to appease an interest group, and the draft VAWA reauthorization bill is a blatant, politicized, institutionalized embrace of partiality that favors the female accuser and that maligns the male accused.

"PREPONDERANCE OF THE EVIDENCE": Under the proposed law, schools must apply the standard of proof mandated by the Department of Education’s Office for Civil Rights. The OCR's most recent pronouncement on the subject is found in the April 4, 2011 "Dear Colleague" letter.

This, of course, is the most troublesome aspect of the draft bill. It is ironic that schools are free to still apply a higher standard of proof in cases involving non-sex offenses. As a result, most schools will continue to apply the "clear and convincing" standard to far less serious alleged offenses that are much easier to investigate and adjudicate.

If someone told you that there was a 50.1 percent chance that your parachute would open, would you jump out of the plane? The question scarcely survives its statement. Yet, the Obama administration thinks that this level of certainty is sufficient for colleges to make a life-altering decision about young men accused of heinous sex offenses. Put another way, your son will be expelled even if the college disciplinary board is 49.9 percent certain that he's innocent.

Brett Sokolow of the National Center for Higher Education Risk Management is the leader of what can aptly be called the campus sexual grievance industry. He has advised thousands of schools on sexual assault policies, and has long predicted that the day was coming when Title IX claims could be used for sexual assault claims on campus. '"'The ‘Dear Colleague’ letter was one of the most important moments of my professional life," he recently said. Sokolow has been pushing for a "preponderance of the evidence" standard for some time. Why?

Sokolow says he understands why some colleges want to use the higher "clear and convincing" standard due to considerations of "fairness" for accused students who might be expelled; however, he declares, that is not the best practice for colleges because the clear and convincing standard doesn't allow the "victim" (his word) to "win" under certain sexual assault scenarios.

Similarly, and as but one example, the University of Virginia Cavalier Daily applauded the new "preponderance of the evidence" standard dictated by the Department of Education's April 4 "Dear Colleague" letter and said it "addresses a glaring shortcoming in the current policy, which fails to acknowledge that few cases of rape or sexual assault feature 'clear and convincing' facts. . . . .'The self doubt and confusion a survivor feels after experiencing an assault combined with a lack of knowledge of what to do and where to go in the hours after an assault makes hard evidence difficult to come by in some cases,' Andrea Mousouris, a fourth-year College student and external chair of the Sexual Assault Leadership Council said . . .."

There is no evidence to support the belief that it is "too" difficult to find sexual assault perpetrators guilty under a "clear and convincing" standard, or that by lowering the standard, more actual victims will report their rapes. While finding a student guilty of a heinous sex offense should be difficult, it is by no means impossible to do exactly that under a "clear and convincing" standard. Rapists are routinely convicted in criminal courts under the "beyond a reasonable doubt" standard, which is even higher than the "clear and convincing" standard.

Even more disturbing is the implication that since it is allegedly difficult to prove sexual assault under a "clear and convincing" standard, then the solution is to adopt a policy that will make it much easier to punish not just the guilty but even the innocent. These advocates have it exactly backwards: the absence of hard evidence to prove any offense is a sound reason to be wary about finding men guilty of it, not a valid justification to make it easier to punish the innocent with the guilty. This point is so terribly fundamental and beyond dispute that it has been lost in the politicized cacophony.

And under this draft VAWA reauthorization bill, what is to stop the OCR from adopting an even lower standard, like the one employed at Brown University?  Nothing. Brown University uses a standard of proof that requires only "a reasonable basis" for a finding of guilt in sex cases--that means that a disciplinary board can even have more than a 50% belief that the man accused is innocent, but it must find him guilty if there is just a "reasonable basis" for believe he did it.

It is perplexing in the extreme that there is no discussion whatsoever of the delicate and critical balance between (1) the need to punish the guilty and (2) the need to insure that the innocent are not punished with them. Only the former interest is deemed socially important; the latter is treated as non-existent. The latter should, of course, be afforded even more weight than the former if a perfect balance can't be struck.

The persons who care only about protecting rape victims understand the importance of what the OCR did. Men's rights advocates largely don't. 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 -- said this about the April 4 directive:  "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 was 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.”

That sums it up. The April 4 directive, and now the draft VAWA reauthorization act, increase the risk to innocent men that they will be found guilty based solely on the say-so of a rape accuser. For too many women's advocates, that twisted, vile outcome--not justice for all--"is absolutely crucial to the women's community."