By David French
Saturday, October 13, 2018
Through much of the last month, the American people have
been treated to a version of the emotional and ideological argument that’s
dominated the American academy for much of the last ten years. The argument
goes something like this: Women rarely lie about rape. Thus, the failure of
criminal or civil justice systems to achieve overwhelming rates of conviction
or impose liability at the rates of predation means that fundamental reform is
mandatory.
Consequently, we must make it easier for women to bring
claims, protect them from the rigors of proving claims, and utilize
decision-makers trained to understand and respond to the unique trauma of
victims. Moreover, when considering sexual-assault claims outside of courts,
understand that due process is less important when a man’s liberty isn’t at
stake. After all, a campus court isn’t a criminal trial. It’s an evaluation of
academic suitability.
The result of this argument has been wholesale national
reform — part of it mandated by the Obama administration’s Department of
Education, and part of it willingly undertaken by colleges themselves — that
has caused universities to lower burdens of proof, channel serious claims into
summary proceedings, restrict the ability to cross-examine witnesses, and even
limit access to evidence in an effort to streamline the process of punishing
sex offenders.
It’s been a disaster.
From coast to coast, accused students — typically men
punished for sexual assault with barely a chance to defend themselves — are
filing lawsuits containing often-shocking claims. Judges, accustomed to the
value of due process, often find themselves stunned at the unfairness of campus
proceedings. And if you think that wrongful convictions for sexual assault
aren’t serious because the men don’t go to prison, well then talk to the young
men whose careers and reputations are shattered before they’ve had a chance to
build a life.
In the days after the Brett Kavanaugh confirmation, when
the op-ed pages were still filled with examples of women’s rage, a California
state court of appeals handed down a decision in a case against the University
of California–Santa Barbara that should remind us all of the high costs of a
rush to judgment. It should remind us all of the value of due process.
The facts of the case are relatively simple. After a
night of drinking, a female student (“Jane Roe”) fell asleep on a mattress that
was pressed up against a living room wall. Later that evening, a male student
(“John Doe”) became intoxicated and lay down on the same mattress. She was
under the covers. He was fully clothed on top of the covers, with his back to
Jane. There were two eyewitnesses sitting on a couch, talking less than three
feet away.
Jane testified that she woke up to discover that John was
molesting her. She was too terrified at first to cry out and then finally, when
the assault ended, screamed for everyone to get out of the apartment. John
denied the claims and instead claimed that he first heard Jane’s story when
“she woke [him] up by basically yelling about someone hurting her.”
The two eyewitnesses testified that it would be
“physically impossible” and “not physically possible” for Jane’s claims to be
correct. They saw Jane wake up “confused, disoriented, and mumbling in foreign
languages.” They thought she was having a bad dream.
Jane reported the alleged assault to police, and two days
later submitted to an exam by the city’s Sexual Assault Response Team. The
police did not take any action against John. The university, however, did.
After a hearing, it sentenced him to a two-year (eight-quarter) suspension.
The university hearing was a carnival funhouse of
due-process violations. First, the university allowed a detective to testify
about a report that allegedly indicated that “bruising/laceration [was] noted
in the anal area” without producing the actual report. The parts of the report
the university did produce did not contain any such language. Moreover, the
detective couldn’t say whether the finding could have any other cause.
Testifying about a report the accused wasn’t able to see violates the “best
evidence rule” — an evidentiary standard that “precludes oral testimony to prove
the content of a writing.”
That’s basic stuff, yet it was only the beginning of the
university’s problems.
Next, the university only disclosed to John the day before the hearing the fact that
Jane was taking an antidepressant called Viibryd. When John tried to ask Jane
about the consequences of mixing Viibryd and alcohol, she declined to answer
the question. When John tried to introduce evidence that Viibryd “has many
side-effects” that “become severe when alcohol is consumed . . . such as
hallucinations and sleep paralysis and night terrors” the university declined
to consider it. The reason? He couldn’t produce a qualified expert.
As the court of appeals noted, this “placed John in a
catch-22; he learned the name of the medication Jane was taking too late to
allow him to obtain an expert opinion, but the Committee precluded John from
offering evidence of the side effects of Viibryd without an expert.”
And that’s not all. John was forced to represent himself.
His lawyer could only advise and support, but the university allowed its
general counsel to “actively participate and to make formal evidentiary
objections.” As a consequence, “A student, whose counsel cannot actively
participate, is set up for failure because he or she lacks the legal training and
experience to respond effectively to formal evidentiary objections.”
So, let’s review — the university violated a basic rule
of evidence, withheld key information from John until the day before the
hearing, refused to let him question the accuser about that information, and
then allowed its lawyer to render objections to John’s case. The court’s
conclusion was stinging: “It is ironic,” said the court “that an institution of
higher learning, where American history and government are taught, should stray
so far from the principles that underlie our democracy.”
In other words, the university stacked the deck. It
biased the proceedings against John, and in so doing violated his fundamental
constitutional rights. Note that the court did not excuse these violations
because it was ruling on a mere academic hearing. Bad processes hurt people,
even when those bad processes don’t result in prison.
I’m singling out the UCSB case simply because it is so
recent. It’s but one example among many. In fact, two weeks before the
California court handed down its opinion, the Seventh Circuit Court of Appeals
heard arguments in a case that Brooklyn College professor K. C. Johnson —
perhaps the nation’s foremost expert on Title IX adjudications — called
“unusually troubling, even in the Title IX realm.”
The guilty finding led to a loss of
the accused student’s ROTC scholarship and Navy career, after a process in
which the accuser neither appeared at the hearing to speak and answer
questions, but didn’t even submit a statement
to the hearing. (The evidence in the case was a Title IX investigator’s report
and a statement written on the accuser’s behalf by a university counselor.) The
complaint alleged that the accused student had no chance to present exculpatory
witnesses, including a roommate who said that the alleged assault never
occurred.
As Judge [Amy Coney] Barrett noted,
“It was a credibility contest in which you not only did not hear directly from
[the accuser], you didn’t even read words that she had written.”
I wonder if that student is consoled that its “only” his
Navy career at stake. The goal of any adjudication is justice, and centuries of experience have taught us that justice is
elusive when due process is denied. We cannot have our culture believe that the
way of the university is the way forward for our nation. The guiding principles
should be clear. Respect women and hear their claims. But “believe women”? No,
believe evidence, and give every accused a fair opportunity to defend his
liberty, his education, and his career.
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