Former Iowa State University basketball player Bubu Palo has filed a civil action for defamation against the woman who accused him of sexual assault two years ago. Criminal sexual assault charges had been brought against Palo, but they were dismissed before trial. A forensic analysis of a blouse the alleged victim wore the night of the incident determined it had been torn after the alleged assault, contrary to statements the alleged victim had made under oath.
The local newspaper that reported the story quotes a Stanford law professor named Michele Landis Dauber, who said this about the Palo lawsuit: “I think that there are valid public policy reasons that a judge might want to look very carefully at such a case and make sure that there’s really good evidence to support (the defamation claim), because otherwise it is going to be very harassing of sexual assault victims."
Dauber's comments are the legal equivalent of gobbledygook. The standard of proof for defamation claims is preponderance of the evidence. "Really good evidence" has no legal meaning, and law professors from Stanford ought to know better.
Does Dauber mean that a judge should require Mr. Palo to produce evidence beyond a "preponderance of the evidence"? If Dauber didn't mean to suggest that, why did she bother making the statement? The implication of Dauber's quote is that because the alleged defamation arose in the context of a sexual assault claim, the plaintiff should be subjected to a different -- presumably enhanced -- standard that does not apply to plaintiffs in any other defamation action. (If Dauber meant something different, she can tell us, and we will happily report it.)
The preponderance of the evidence standard is the same standard that rape victims' advocates tell us is fair to use to judge young men in campus disciplinary tribunals involving sexual assault. But somehow, that standard is not fair when those same young men sue because they claim they were wrongly accused? It is well to note that in a civil defamation action, the defendant is afforded all manner of prophylactic safeguards -- including the right to cross-examine her accuser -- that are not available in college hearings.
In other news reports, Dauber is said to advocate for expulsion in cases of sexual assault. In cases that might end in life-altering expulsion, we wonder if Dauber believes the university should be required to "make sure that there's really good evidence to support" the charge? Because -- you know -- "otherwise it is going to be very harassing of" presumptively innocent young men? Or do Dauber's concerns only run one way?
Dauber is also on record opposing the right of persons accused of sexual assault to cross-examine their accusers. Here is a quote attributed to her: "Having the 18-year-old rape victim be cross-examined by the guy who raped her? That's just wrong, wrong, wrong," she said.
But what about the 18-year-old man who is wrongly accused of rape? Dauber's policy also assumes it is "wrong, wrong, wrong" for him to cross-examine his accuser in an attempt to establish his innocence. Perhaps the idea that a young man might be wrongly accused of sexual assault never crossed Dauber's mind. Or perhaps there aren't enough of them for Dauber to worry about. Therein lies the injustice in her advocacy.
The local newspaper reporting on the Palo case also quoted someone named Beth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, who said that that lawsuits against alleged victims are “really unfortunate.” And: “I think it can discourage reporting. It’s a terrible precedent, and I think that there are a very small number of false reports.”
Barnhill's comments are staggering in their hostility to fundamental notions of fairness. Young men who are defamed should be deprived of their right to legal redress -- so long as the defamation occurred in the context of a false rape claim. Only in the loopy milieu of gender politics are such statements uttered with a straight face. Sadly, such puerility is about par for the public discourse when it comes to sexual assault.