Wednesday, December 28, 2011

Time to elevate the public discourse about sexual assault

The public discourse about sexual assault in the blogosphere rarely rises above puerility.  Gender-related blogs typically are little more than places to rant and to ridicule those who don't share the ranter's views. Missing from almost all of them is the critical balance that is at the heart of every serious jurisprudential effort to deal with this thorny crime that is rarely committed in public: the need to punish offenders while insuring that the innocent are not punished with them. Every serious voice on these issues recognizes that achieving this balance is critical.

While it is simply not worth anyone's time to read, much less respect, smug, extremist bloggers who have no regard for this balance, we should gladly engage in public discourse persons who recognize both sides of the balance even when we largely disagree with them. Respect for this balance needs to be the litmus test for whether to take someone seriously on these issues.  Some examples:

▲Attorney Brett Sokolow, founder of the National Center for Higher Education Risk Management, helps colleges across America mold their sexual assault policies to enhance the rights of alleged victims. I fundamentally disagree with many things Mr. Sokolow advocates, because, in my view, he is moving the pendulum too far from the center to the detriminent of presumptively innocent students accused of sex crimes. But while Mr. Sokolow has both a finanical and philosophic interest in enhancing the rights of putative victims, he is not a screeching radical who fails to appreciate the critical balance between punishing offenders and protecting the innocent.

Mr. Sokolow recently testified in court in an important case as an expert witness against a college on behalf of a student accused of sexual assault. Trust me: he doesn't need the money. He obviously did it because he thought it was the right thing to do. Mr. Sokolow wrote: "At the trial, I said, 'When colleges don’t do the right thing by victims, it has been my job to say so. To be principled, I also have to be willing to say so when I believe that a college did not do right by a student accused of sexual misconduct.'” Mr. Sokolow also said this: "My career has been marked by an insistence on elevating the rights of victims, yet I must be equally insistent when the rights of an accused student are trampled." 

▲Prof. Aya Gruber is among the most vibrant voices of feminism in America. She believes that feminism needs to reshape gender dynamics, and that women aren't empowered. Interestingly, she also believes that the criminal justice system is incapable of adequately addressing the critical issues. "Criminal law's structure is to look for right and wrong with no gray area, and to hold individual's accountable for their actions. It doesn't take into consideration larger social issues-such as why the accused rapist aggressively pursued sex, or the perceived passivity of women." Gruber said. She believes that "the obsession with the criminal justice system has led to such absurdities as a fourth degree sexual assault conviction and compulsory registration as a sex offender for a man who squeezed the back side of a female while they were on a dance floor in a bar."  Moreover: "Feminists can counteract the rape-permissive gender norms largely enforced by women instead of relentlessly focusing on the criminality of men," she said. "And feminists must talk to young men about their attitudes as people, not just seek to incarcerate them as criminals." I don't necessarily need to buy into Prof. Gruber's views to appreciate the nuance in her arguments and to believe that her views can help advance the discourse.

▲Alwina Bennett, assistant provost for graduate student affairs and a public contact for the Rape Crisis Hotline at Brandeis University, is someone who believes that rape is a serious and underreported problem at the school. Yet, here is what she said about the school's shift from the “clear and convincing" standard of proof to the “preponderance of the evidence" standard required by the Department of Education for alleged sex offenses: “The [new] standard is too low for something that can be so life-changing,” Bennett said. “We need to be a little more sure.”  There is nothing magical about the "clear and convincing" standard; the problem with the Department of Education's April 4 "Dear Colleague" mandate is that it failed even to discuss its effect on insuring the innocent aren't punished.

▲Naomi Wolf, whose feminist credentials can't be questioned, wants to scrap anonymity for rape accusers because, among other things: ". . . justice systems – at least in democracies – typically demand that the accused be able to face his or her accuser. Why, for example, in a case that is so dependent on public opinion – and on which so much depends – must Assange face allegations that may have grave consequences for him, while his accusers remain hidden?" And: "It is wrong – and sexist – to treat female sex-crime accusers as if they were children, and it is wrong to try anyone, male or female, in the court of public opinion on the basis of anonymous accusations."

Ms. Wolf also decried the rush to judgment regarding Dominique Strauss-Kahn. She openly questioned how "New York City police spokespeople . . . made uncharacteristic and shockingly premature statements supporting the credibility of the [alleged] victim’s narrative — before an investigation was complete." She wrote: "Whatever happened in that hotel room, Strauss-Kahn’s career, and his presumption of innocence, was effectively over — before any legal process had even begun."

▲Feminist Susan Estrich, speaking on a television show about the unsubstantiated sex allegations about Al Gore, did not advocate that we should just "believe the victim" as so many screeching voices have done. ". . . the problem is we just don't know and there's no way to determine," she said. "I'm the mother of a son and a daughter. And I would hate like heck for my daughter ever to be in a position where she faces an unwanted sexual advance. . . . . But I'm also the mother of a son. And you and I both witnessed, for instance, in the Duke case, a number of young men whose lives were — for all intends [sic] and purposes ruined by a false accusation."

▲And it has to work the other way, too. In 2006, Joe Paterno was asked about a sexual assault accusation against a Florida State linebacker before a bowl game.  Paterno said this:  "There's some tough -- there's so many people gravitating to these kids. He may not have even known what he was getting into . . . . They knock on the door; somebody may knock on the door; a cute girl knocks on the door. What do you do? Geez. I hope -- thank God they don't knock on my door because I'd refer them to a couple of other rooms. But that's too bad. You hate to see that. I really do. You like to see a kid end up his football career. He's a heck of a football player, by the way; he's a really good football player. And it's just too bad."

At the time, many of us readily dismissed criticisms of Paterno's words. I have come to appreciate more and more that words do matter, especially for people in positions like Paterno's. It strains credulity that Paterno could have meant that when "a cute girl knocks at the door" the only viable option for a man is to rape her. By the same token, his comments seemed to rule out the possibility of wrongdoing on the part of the player even before an investigation, and that is problematic.  Paterno would have done well to acknowledge the critical balance between punishing wrongdoers and protecting the innocent by saying something along these lines: "Allegations of this nature need to be taken very seriously and carefully investigated, and while that is occurring, it is important to keep in mind that the player is entitled to all the protections of due process and the presumption of innocence." 

NOW called for Paterno's resignation back in 2006, saying his comments took sexual assault too lightly. That call was all too predictable from an organization that is less than selective about making such pronouncements.  In hindsight, it is fair to wonder if Paterno's comments in 2006 were indicative of a lax attitude about sex offenses. It recently came to light that Paterno waited to alert his superiors about allegations that Jerry Sandusky had raped a boy because, Paterno told a grand jury, "It was a Saturday morning and I didn’t want to interfere with their weekends.” 

That bespeaks an insensitivity that is appalling, and those of us concerned about the critical balance referenced above need to be able to say it is appalling without being attacked for speaking the truth.