Thursday, April 19, 2012

Jon McCay's perilous defense of the 'Dear Colleague' letter: he refuses to acknowledge the risk of getting it wrong

UNC's former Student Attorney General Jon McCay employs a strained and perilous logic to defend the mandate of the Department of Education's April 4, 2011 "Dear Colleague" letter that lowered the standard of proof for sexual assault cases on campus to "preponderance of the evidence."

McCay was asked, "So what about the accused? The . . . standard for proof — a preponderance of evidence, meaning the panel must find it more likely than not that the assault occurred — seems to abandon the innocent-until-proven guilty model students have come to expect from the honor system."

Here is McCay's response, as reported by the Daily Tarheel: "Though McCay concedes that, in practice, the new standard would likely result in more guilty convictions, he is quick to point out that it wouldn’t create any new cases of sexual assault."

McCay concedes the new standard likely will result in more guilty convictions, but by asserting that the new standard won't "create any new cases of sexual assault," he seems to take it as a given --without bothering to explain why -- that the new standard will not subject students to punishments they don't deserve.

That, of course, is a conclusion that is unwarranted because it is only reasonable to conclude that the risk of wrongfully punishing innocent students is enhanced by lowering the standard of proof.

McCay seems to suggest that under the pre-"Dear Colleague" system, few sexual assault claims were punished because the standard of proof was too high. According to the newspaper: "Last year, there were 43 cases of sexual assault reported through the University’s available avenues, but the honor system only saw one of them. This semester, with a public push for assault awareness, the court has tried three — still not ideal."

So what's the solution?  "McCay explains that the new system would make it easier for the University to hold those responsible for sexual assault accountable."

No one disagrees that holding more rapists responsible for their misconduct is a laudatory goal. The problem is that McCay doesn't bother even to consider whether the new standard poses the risk of punishing innocent students. And it does.

The article goes on: "By treating victims and assailants as equally credible, the honor system will likely see an increase in reporting — not an increase in sexual assault."

There are numerous problems with that assertion. The suggestion is that it's possible to do justice by pitting the credibility of the accuser against that of the accused, and if the scales tip ever so slightly in favor of the accuser, to severely punish the accused.

Earlier in the article, Mr. McCay himself conceded that adjudicating sexual assault cases is difficult: “It’s always ‘he said,’ ‘she said. It’s not like a plagiarism case where you can bring in emails, Google searches and drafts of a paper. There aren’t any witnesses; it’s not like a cheating case where someone can say they saw a student looking at someone else’s test.”

Respectfully, then, Mr. McCay, the absence of corroborating evidence to establish guilt or innocence in "he said/she said" cases is scarcely a valid justification for making it easier to punish the presumptively innocent. Just the opposite. It is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

Most disturbing of all is how Mr. McCay blinks at a principle long-settled in our jurisprudence that was famously expressed by the celebrated English jurist William Blackstone. Blackstone said it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.) 

And that's the point that is most frequently misunderstood in the debate about the "Dear Colleague" letter: a wrongful acquittal is a terrible thing, but it is never the equivalent of a wrongful adjudiciation of guilt.  The risk of getting it wrong is why the standard of proof has to be higher than "preponderance of the evidence."  Students have an enormous interest in not being expelled for sexual assault because such punishment can be tantamount to, and is sometimes worse than, a deprivation of liberty. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Cornell law professor Cynthia Bowman recently said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” See here.

Even attorney Brett Sokolow, who is probably the leading victim's advocate on Amercan campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.”  He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

Mr. McCay ends on a cautionary note -- to men. According to the newspaper article: "If anything, the new standards send a message that men, too, must bear part of the responsibility for preventing sexual assault. Part of this prevention is awareness and a better understanding of consent. We’ve all heard it, but McCay says it again: 'Only a clear ‘yes’ means yes. Consent isn’t supposed to be vague.'”

Reminding students about the necessity of consent is always a good thing. But Mr. McCay offers no advice to students who are wrongfully charged with sex offenses. The risk of punishing the innocent is not something Mr. McCay seems at all concerned about.