Due Process Is Making A Comeback For College Students Accused Of Rape

By Ashe Schow 

Monday, October 23, 2017

Many times throughout history societies cast aside the idea of due process, such as during the Salem witch trials and the 1980s and ’90s satanic day care scares. In each case, those accused were not given a proper chance to defend themselves, and society was told to “believe the victim.”

Such has been the case in recent years on college campuses. We’re told college women face the possibility of being sexually assault on par with the frequency of war-torn Congo. We’re told that false accusations are so rare we should just ignore their potential. And we’re told that if we don’t outright believe all accusers, we’re rape apologists. Due process, we’re told, hurts victims (but only on college campuses or in matters of sex; all other crimes require due process).

The recent hatred for due process grew after President Barack Obama’s Education Department issued guidance in 2011 about how schools should handle accusations of sexual assault. The guidance all but assured accused students would be found responsible, even going so far as to suggest cross-examination shouldn’t be allowed because it might re-traumatize victims. This, of course, ignored the fact that cross-examination is the most effective tool to determine whether someone actually is a victim.

Hysteria ensued. If someone accused of sexual assault wasn’t punished on a college campus, activists claimed the school didn’t take accusations seriously. When President Donald Trump’s Education Secretary Betsy DeVos rescinded the Obama-era guidelines, activists claimed she was rolling back victims’ rights (when she was actually attempting to add rights for the accused, as well as accusers).

Is the Tide Turning?

But due process appears to be making a comeback. By K.C. Johnson’s count as of Sepember 8, 59 accused students had received at least partially favorable rulings from judges after they sued their schools for gender-bias and denying due process. I believe this count is now over 60.

Some of these judges decried schools shifting the burden of proof onto accused students, some stated cross-examination was essential, others noted the potential ramifications for expelled students that activists seem to ignore, and others simply said the campus kangaroo courts were “unfair.” These are just four examples of due process wins for students, but there are dozens more.

Those are just the judicial wins. Accused students have been racking up settlements with their universities for years, with a seeming uptick in 2017. Some of the settlements came from high-profile cases, like Columbia University settling with the man accused by “Mattress Girl.”

With court wins in the background, DeVos rescinded the Obama-era guidance that led to this chaos and denial of civil rights for accused students. She promised to create guidance using the proper notice-and-comment period that Obama’s education department had ignored. She promised to hear from all parties with related interests, including victims and self-described victims, accused students, lawyers, schools, and others. The system she hopes to create will benefit both accusers and the accused, neither of whom are being served well now.

Even California Lawmakers Are Expressing Concern

Now, another big win for due process comes from an unlikely source. California Gov. Jerry Brown vetoed legislation that, frankly, all of us due-process defenders thought he would sign. Senate Bill 169 codified the Obama-era directives to universities. The bill passed both houses of the California state legislature, and was sitting on Brown’s desk. Shockingly, Brown mentioned due process concerns as his reason for vetoing.

Back in 2014, Brown signed a destructive “yes means yes” consent law that forced college students to live by a different and unworkable definition of consent than the general population does. The bill seemed simple enough, telling students to make sure they have clear consent before engaging in sexual activity. But the language defines nearly all sex as rape, unless both parties (although only one is typically held accountable to this standard, usually the man) constantly ask and agree to sexual activity.

It basically turns sex into a question-and-answer session and does nothing to help accusers prove they were raped. The incident would still be a he said/she said situation, yet under the affirmative consent standards, men were unfairly burdened with having to prove a negative—that they didn’t commit rape.

In his veto letter, Brown acknowledged the flaws in current campus policies: “Since this law was enacted, however, thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault – well-intentioned as they are – have also unintentionally resulted in some colleges’ failure to uphold due process for accused students,” Brown wrote. “Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.”

He also wrote that he was “not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted.” He added that the state didn’t know how many expulsions have resulted or what the circumstance behind the expulsions were, nor the potential “disproportionate impact on race or ethnicity.” He is the first previous supporter of Obama-era guidance to urge caution and note the racial disparity in campus tribunals (many minorities are being accused by white women).

It looks like hysteria over civil rights for accused students could be dying down. It’ll take a while to fix a culture that devalues due process, but we appear to be on the right path.