Wednesday, December 7, 2011

Interesting take on April 4 'Dear Colleague' letter in Daily Tar Heel

Will Doran in The Daily Tar Heel chimes in with concerns about the Department of Education's lowering of the standard of proof for sex offenses. Mr. Doran generally praises the April 4 letter -- which has been widely criticized by persons concerned about the rights of the presumptively innocent -- even the part about accusers having the right of appeal (despite its serious double jeopardy implications for the accused).

In any event, it's the standard of proof that gives Mr. Doran concern. He notes that "UNC previously required proof 'beyond a reasonable doubt,' a much stricter burden of proof and the one used in criminal trials." Now, all that the school needs is "a 51 percent likelihood of guilt. No hard evidence, no worries." He correctly notes that the reduced standard means "that innocent students could be wrongly convicted, as sexual assault cases are often very complicated and hazy because emotions run high — and substances are often involved."

Mr. Doran attempts to maintain some balance, but he overshoots his mark when he writes the following: "The reasonable doubt standard discourages reporting because many victims think they won’t win and don’t want to relive their pain only to lose the case."

There is a logic to Mr. Doran's assertion, but I am aware of no evidence for it, and I follow this area very closely.  In fact, last year, the head of RAINN testified before Congress about underreporting, and he noted that "fear of not being believed" is no longer among the prominent reasons for underreporting. See entry re: Scott Berkowitz, here.

Beyond that, the fact is, we've been served up one rape "reform" after the next for the past three decades, many of them very significant, with the goal of undercutting underreporting. None of them, we are told, have worked. (Yet we keep funding the same crowd that ineffectively attacks the rape "crisis." Hmm. Why is that?) Why, on earth, do they think this one will work? We've written about the underreporting canard many times and won't repeat ourselves here. It is unfortunate that Mr. Doran seems to accept at face value the unsupported assertion of Morgan Abbott, the Honor Court’s vice chairwoman, who said she supports the change "because it will encourage more students to seek help."

Mr. Doran posits an interesting theory when he writes: "If the burden of proof for criminal courts remains the same while the burden of proof for on-campus hearings is reduced, it stands to reason that many victims will turn to the Honor Court rather than police." This means "that abusers could get away with their horrific acts with a mere slap on the wrist. Yes, they might have to miss a year or more at UNC. But they can always enroll somewhere else, get a job, travel or do any number of things that don’t involve going to jail."

Again, Mr. Doran overstates his case when he calls the punishment meted out by college disciplinary boards "a slap on the wrist." Expulsion, one of the punishments available to such boards, is often a life-altering event. In addition, it isn't as easy to "enroll somewhere else" as Mr. Doran seems to think. The grave concerns expressed by many people about the April 4 letter are premised on the fact that the punishments meted out can be harsh, and life-altering.  That aside, Mr. Doran's point that young women likely will choose to punish the accused in a college hearing rather than a court hearing seems correct.

All in all, a commendable effort by Mr. Doran. Still, there is a sense that in his zeal to appear "balanced," he is far too accepting of matters that should be subjected to the well-honed scalpel of critical analysis.