By David French
Friday, September 08, 2017
Honestly, even for a person who’s been hardened by
decades of campus ideological and legal battles, it’s hard to believe how
thoroughly unhinged, how intellectually bankrupt is the argument against protecting due process on
campus. Yesterday, Education Secretary Betsy DeVos announced that the Trump
administration would shortly begin a regulatory rulemaking process designed to
protect college students from sexual assault while also protecting the fundamental
constitutional rights of the accused.
More precisely, DeVos signaled her intention to withdraw
the Obama administration’s 2011 “Dear Colleague” letter that unilaterally and
lawlessly required universities to adjudicate sexual-assault claims under a
preponderance-of-the-evidence standard (the accused is responsible if there’s a
50.1 percent probability he committed the crime) but without protecting due
process. Obama’s policy resulted in a kangaroo-court system where accused
students often don’t have access to counsel, the ability to effectively
cross-examine their accuser (indeed, the Obama admin specifically urged that
accused students not be permitted to cross-examine accusers), or even access to
all the evidence in the case.
Judging from the Twitter reaction to DeVos’s remarks, you
would have thought that she’d declared open season on young women on campus.
Under the hashtag #StopBetsy, ideologues and celebrities declared that DeVos
was taking the “next step on our path to authoritarianism.” Or, in the words of
the reasonable non-hysterical folks at the Women’s March, she was “making
campuses safer for rapists.” The makers of a deeply flawed campus-rape
documentary called “The Hunting Ground” slammed DeVos, saying, “Her proposal
should scare the hell out of every parent in this country with a college bound
child — schools will become much more dangerous places for their children.”
But what is this terrible proposal? While the details are
yet to be revealed, from her remarks it’s clear that she wants to protect
students from sexual assault and to protect students from kangaroo courts. In
other words, she may well require schools to protect students’ ability to
employ counsel, cross-examine witnesses, see the evidence against them, and try
their cases before a truly impartial tribunal. This is basic stuff. It’s the
essence of due process, and it’s unthinkable for any person facing such
serious, state-mandated charges to face justice without these basic
protections.
So, what’s the objection? Why do some activists seemingly
come unglued at the mere mention of “due process”?
To put it simply, it’s because many of them believe and
propagate a pile of junk science seasoned with a heaping helping of far-left
ideology. This toxic combination causes them to believe the following
fantastical story: That one in five women on campus will be sexually assaulted
at some point in their college careers, that virtually no woman would lie or be
mistaken in alleging a sexual assault, and that even the absence of evidence is
somehow evidence of rape. In these circumstances, due process is at best a mere
formality. At worst, it’s the rapist’s friend.
But that story is wrong — terribly wrong — and it’s
facilitating injustice on a national scale.
First, the one-in-five statistic is based on seriously
flawed studies that, among other things, improperly
define sexual assault or base their findings on a low-response
survey of two colleges. In fact, the authors of arguably the most
influential source for the one-in-five statistic have explicitly said that it
was “inappropriate” to use their survey as a “baseline” for campus rape.
In 2014, the Department of Justice’s Bureau of Justice
Statistics released its own, more rigorous survey, and its results were far,
far different. It found that the rate of rape and sexual assault was “higher
for nonstudents than for students.” The annual rate of sexual assault for young
women enrolled in college was 6.1 per 1,000, or less than 1 percent. Too high,
but far from the extraordinary and shocking crisis of one-in-five, even when
tallied over multiple years.
But what about the notion that “women don’t lie about
rape,” often memorialized in the #BelieveAllWomen hashtag — popularized by none
other than Hillary Clinton herself? That’s based on flawed research as well.
Here’s Emily Yoffe, writing yesterday in The
Atlantic:
As Michelle J. Anderson, the
president of Brooklyn College and a scholar of rape law, acknowledged in a 2004
paper in the Boston University Law Review,
“There is no good empirical data on false rape complaints either historically
or currently.” The data have not improved since that time. In a 2015 working
paper, Lieutenant Colonel Reggie Yager, a U.S. Air Force judge advocate who has
defended men accused of sexual assault, took a comprehensive look at the
research on the incidence of false rape reports, and concluded that the studies
confirming the overwhelming veracity of accusers are methodologically unsound.
For example, in one widely cited study, the author
claimed that “over 90 percent” of rape claims weren’t fabrications. Yet in that
author’s own research, “about 45 percent of the cases [he] reviewed did not
proceed because there was insufficient evidence, or the complainant withdrew
from the process or couldn’t identify the perpetrator, or the allegation did
not rise to the level of a sexual assault.” As Yoffe says, “we simply don’t
know” how rare false claims are.
Finally, the junk research doesn’t stop with surveys.
Consider the wide popularity of a theory called “tonic immobility” that informs
how colleges weigh evidence in sexual-assault tribunals. Yoffe describes the
theory as follows:
People facing sexual assault become
terrified, triggering a potent cascade of neurotransmitters and stress
hormones. This chemical flood impairs the prefrontal cortex of the brain,
impeding victims’ capacity for rational thought, and interferes with their
memory. They may have significant trouble recalling their assault or describing
it coherently or chronologically. The fear of imminent death may further elicit
an extended catatonic state known as “tonic immobility,” rendering them
powerless to speak or move — they feel “frozen.”
As a result, those adjudicating
sexual-assault allegations are told, the absence of verbal or physical
resistance, the inability to recall crucial parts of an alleged assault, a
changing story — none of these factors should raise questions or doubt about a
claim. Indeed, all of these behaviors can be considered evidence that an
assault occurred.
Catch that? It means that the absence of evidence is
itself evidence of a crime. In normal cases, if an alleged victim is
“unreliable and incoherent,” that indicates problems with their claims. Not so
in sexual-assault cases, say some advocates. When it comes to sex,
unreliability actually bolsters the case.
If you think that makes no sense, then you’re not alone.
As Yoffe lays out in detail, the evidence of how trauma impacts human memory
actually contradicts the “tonic immobility” theory. She quotes Harvard
psychology professor Richard McNally, who says, “Extreme stress enhances memory for the central aspects
of an overwhelming emotional experience.”
All of these facts — combined with an extraordinary
number of egregious stories of campus injustice — have led civil libertarians
on the left and the right to raise the alarm. Indeed, so many progressives have
issued their own statements or expressed their own concerns about an overhyped
campus-rape crisis that it’s simply wrong to say that criticism of Obama-era
Title IX jurisprudence is simply “Republican,” “conservative,” or — even worse
— “Trumpist.”
Sadly, however, for the true campus ideologue none of these
critiques matter, especially if they come from the dreaded (and hated) white
male. The battle over due process and sexual assault on campus has passed into
the realm of identity politics — where narrative trumps all, and your only role
in life is to be the right kind of “ally” to the allegedly oppressed.
Yet due process is a cornerstone civilizational value.
Justice demands that agents of the state actually prove their case through a fair and impartial proceeding before
punishing any person. We apply this standard when police catch a murderer in
the act of taking a life. We apply it when the evidence is overwhelming and an
entire community thirsts for vengeance. We apply it no matter the odds of a
conviction, and — critically — we apply it no matter the ideology or identity
of the parties.
Our campuses are not exempt from the Constitution. There
is no excuse for government-mandated kangaroo courts in any part of American
life, especially in America’s institutions of higher learning. It’s time to end
a false frenzy, restore constitutional sanity, and remember a key truth: The
defense of due process is the defense
of liberty. No man or woman is at the mercy of the state.
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