Guilty until proven innocent

The Devil's Advocate


In October 2010, members of Yale’s Delta Kappa Epsilon fraternity marched around campus chanting, “No means yes! Yes means anal!”

The incident — and subsequent allegations that the Yale administration failed to respond adequately to the fraternity’s abhorrent behavior — provoked a national discussion about sexual violence and rape culture on college campuses.

While the Yale scandal was still simmering, in April 2011, the U.S. Department of Education ordered all American colleges and universities to comply with certain new disciplinary procedures for students accused of sexual misconduct. The new policies were apparently designed to encourage victims of sexual harassment and assault to come forward — by dramatically weakening protections afforded to students accused of sexual misconduct in campus disciplinary hearings.

Prominent New York University law professor Richard Epstein questioned the constitutionality of the directive, declaring that “the Department of Education is on a collision course with the Bill of Rights.” He took particular issue with the mandate that all schools use the weak “preponderance of the evidence” standard in disciplinary hearings regarding sexual misconduct. Former Department of Education attorney Hans Bader noted that this standard of proof “means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined,” and former American Civil Liberties Union board member Wendy Kaminer called it “practically a presumption of guilt.”

The directive takes other steps to erode the protections for students accused of sexual misconduct: It provides that the alleged perpetrator cannot have the right to appeal unless his accuser can appeal as well, exposing the accused to double jeopardy. It also strongly recommends that the student who is accused of misconduct not be allowed to confront or cross-examine his accuser.

Over the past several weeks, the issue of sexual violence on college campuses has been once again thrust into the spotlight because of occurrences at another elite northeastern institution. I’m referring, this time, to an Amherst student’s account of being raped and then being treated with indifference and hostility when she reached out to campus administrators and fellow students. According to The New York Times, the author, Angie Epifano, was prompted to write the story by a blog post about misogynistic T-shirts created and sold by members of an Amherst fraternity.

After Epifano’s account was published, other victims of sexual assault at Amherst came forward and said that they too had been poorly served by the Amherst administration.

The disturbing events at Amherst raise the question of how colleges can best encourage women who have been assaulted to come forward and ensure that their allegations are taken seriously. It’s hard to overstate the seriousness of this problem — a shocking 95 percent of campus rapes go unreported, according to the ACLU.

The Department of Education directive, issued in the wake of the Yale controversy, represents one approach to the issue. It presumes that women are more likely to report sexual misconduct — and that college administrations are more likely to respond to allegations effectively — if procedural protections and civil liberties for the accused are eviscerated.

It’s impossible to know whether cutting back on protections for the accused actually encourages victims to come forward, but it is clear that this approach can lead to intolerable injustices. Just ask Caleb Warner, who, as a student at the University of North Dakota, was found guilty  of sexual assault under the shameful “preponderance of the evidence” standard. He was banned from campus and sentenced to three years of suspension. A year and a half later, he was exonerated because law enforcement determined that his accuser was lying and charged her with filing a false report.

As the instances at Yale and Amherst have amply illustrated, there are unacceptable strains within the culture at American colleges that create an environment conducive to sexual violence. But restricting the civil liberties of students accused of sexual misconduct does nothing to address this. On the contrary, this approach merely formalizes the unhealthy perception that sexual assault is a “different” type of crime that should be subject to a different set of rules and procedures — inviting more cultural baggage and stigma.

As colleges around the country grapple with sexual misconduct issues in the wake of the Amherst scandal, they should not draw their inspiration from the Department of Education directive, which does violence to America’s tradition of civil liberties and due process. I am hopeful that the soul-searching brought about by Epifano’s courageous account of her experience at Amherst will give rise to serious ideas about how to improve colleges’ responses to sexual misconduct so that they can protect the rights of all of their students.

Contact Jason Willick at [email protected] or follow him on Twitter: @jawillick.

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  • Pacman7331

    It’s just a methodology to increase gender warfare so criminals and psychopaths can become more powerful. Men and women united is a huge obstacle for control freaks.

  • Great article. Why is it that every other issue is subject to a higher standard of evidence at Georgetown, with the lone exception of sexual assault? This is the most serious issue that will affect those that are innocent but accused falsely. Duke and Hofstra cases and Brian Banks’ case taught us nothing, except that feminist-driven Dept. of Ed. cares nothing about innocent men’s lives being catastrophically destroyed with no way to defend themselves.

  • I_h8_disqus

    While the ACLU reported on a poll that concluded that 95% of rapes have not been reported, most legitimate estimates place the number around 50%. The poll that was used in the ACLU report asked questions that would make a woman who felt uncomfortable when someone danced too close to her a victim of rape.

  • Guest

    I suspect the primary reason the great majority of rape cases go unreported is that there are almost always no witnesses.

    • Open your eyes

      The survivor is a witness!!! For no other crime do we treat the victim as if they are on trial. And in most cases on a college campus, the attacker is is an acquaintance of the victim, so they are an extremely reliable witness.

  • guest

    What is difficult to infer from the column is that ‘preponderance of evidence’ is the standard for all student conduct cases, not only sexual offenses.

    “(5) Standard of Proof

    The Center for Student Conduct bears the burden of proving the charges. The standard of proof for all hearings is a preponderance of evidence. A preponderance of evidence is defined as “more likely to be true than not.”

    (from the UC Berkeley Code of Student Conduct)

    Therefore, students could be suspended or even expelled (for any offense under the code) under that standard of proof. This might be problematic, but it is wrong to argue, as Jason does, that those suspected of sexual assault are getting less rights than other students under the conduct system.

    • guest

      “Preponderance of evidence” is also the standard of proof for civil litigation. Only in criminal cases is proof ‘beyond reasonable doubt’ necessary. Even if student conduct sanctions can be drastic for the student’s point of view, and even if some student conduct offenses would also be criminal offenses, the student conduct process is not a criminal process per se. This is another weird aspect of student conduct processes, but again it’s not specific to rape cases.

      • Alf

        The column’s assertion that “preponderance of evidence” (a standard used in most civil proceedings in the US) may be unconstitutional, and that it amounts to “guilty until proven innocent”. Jason would have benefitted from a 2 minute internet search before writing this.

        Yet, there would be an argument to raise the standard of proof for certain conduct cases (that could result in say, suspension or expulsion). There exists a standard of proof between preponderance of evidence and beyond reasonable doubt, and that is “clear and convincing evidence”. The only drawback is that what constitutes clear and convincing evidence is a bit difficult to define:

        • Alf

          should have said “The column’s assertion (….) that it amounts to “guilty until proven innocent” is patently false.” if that were the case it would have been struck down by the courts a long time ago.

    • DN

      Thank you. This is the most reasonable and relevant comment thus far in a thread dominated by generalizations.

    • guest

      I wonder what people are downvoting? “Damn you for actually citing the UC Berkeley Code of Conduct”

    • I_h8_disqus

      Thanks. I was thinking that I have run into other Student Conduct situations, where the accused students don’t seem to have much of a chance at defending themselves. I have found it amazing that a university like Cal that has such a history of students fighting for rights falls so short of providing those rights to its students.

    • Kylie Michelle Fraser

      so, do those other cases involve what would be a criminal charge? if a student is found by the school to have committed a criminal offense like rape or sexual assault, they should then refer the case to the criminal court and allow that process to determine their innocence or guilt. if there is not enough evidence for a jury, that should not go on their record, and the student reimbursed for damages.

  • NWOslave

    The feminist religion is so entrenched into society it’ll take generations to irradicate. The faith is based on two simple principles.

    First and foremost, women are born as divine infant goddesses and remain infant goddesses for life. An infant can never be immoral, therefore, the infant goddess must be the definition of morality. An infant can never be wrong, therefore, the infant goddess must be the defintion of being right. An infant can never be blamed, therefore, the infant goddess can never be held accountable.

    Second of course is patriarchy. All bad and evil flows from patriarchy. Masculinity, male, men. the institution of masculinity, ect. We now have our devil, (masculine, patriarchy). And we have our divinity, (The infant goddess). Patriarchy encompasses all that it is bad and evil. Woman encompasses all that is good and pure.

    The “infant goddess” is always correct and good. Say a fifteen year old girl is wearing practically nothing and is doing everything she can to sexually arouse me and get my attention. Her actions aren’t wrong, an infant goddess can do no wrong. It’s my eyesight that is sexualizing her. I’m in the wrong. I’m the pervert. If a woman of twenty does the same, she still maintains the status of “infant goddess.” If I look, or heaven forbid make a comment, that’s sexual harassment. Her actions cannot be questioned. You can’t blame an infant. Since a complaint was lodged and an infant can do no wrong, I’m to blame.

    A prostitute of any age is a victim. A woman could flat out say I’m doing it for the money. A socially awkward man might go to a prostitute more for the female companionship then the actual sex. She isn’t exploiting and profiting from his need for female company. He is the oppressor, she is the victim. An infant can never be an oppressor.

    If I argue with a woman about any of the above point’s I’m a misogynist. This is heresy to the faith. I hate all women. I’m a heretic, I’ve blamed a woman, (the infant goddess) and upheld the patriarchy, (the devil).

    Every aspect of our lives is based on the feminist faith. And the feminist faith is being globally exported by the UN and every country in the western world.

    • Mark

      This article has nothing to do with feminism. It’s about trying to make victims of sexual assault feel more able to come forward and making our system less sympathetic to those who commit sexual assault.

      • Stan De San Diego

        The idea that our system is “sympathetic” to those who commit sexual assault is a ludicrous assumption on your part.

        • The Clery Act fines colleges tens of thousands of dollars if they fail to merely publicly document a sexual assault. The Dept. of Education threatens schools with losing millions if they fail to merely lower the standard of evidence needed to convict those of sexual misconduct. It also sends out directives stating that the accuser – but not the accused – need to be protected from retaliation. And I could go on and on.

          When you start putting millions of dollars behind a given position, I’d say that’s pretty sympathetic. No such protections are given to the wrongly accused.

          • Stan De San Diego

            Please RE-READ what I wrote.

          • My bad, misread.

          • Stan De San Diego

            Thank you.

      • Yousuf Farhan

        Its about denying basic rights to those accused of sexual assault.

  • Get ready. The current generation is growing up with ghastly pornography, much of it violent (it’s getting close to a norm) a mouse click away from any unfiltered web access point. Monkey see, monkey do. Ironically it seems the entirety of the behavioral sciences (if that’s not oxymoronic) remains locked into total denial of this. Go spend some time with 12 year olds who have been socialized by “The Family Guy”, “South Park”, and the aforementioned porn. (actually the evidence is showing up in children much younger than that–substitute teachers can give you an earful on this matter these days).

    • Nunya Beeswax

      Oh dear. The difference between cause and effect has completely eluded you, hasn’t it?

      • ZimbaZumba

        What? You mean birds flying south in the fall don’t cause the leaves to fall of trees?

  • j

    Why are columns like this and the two preceding columns (one anti-feminist and one anti-homeless) still being posted? They’re offensive, lazily researched, and don’t provide an interesting or new perspective. There’s not necessarily an absence of white, male, self-declared “voices of reason” around at the moment and I don’t think this kind of ignorance needs another platform–especially not in Berkeley’s student newspaper. Can we hear from someone with some new, genuine, and intelligent thoughts to offer?

    Also, sexual assault IS a different type of crime, and treating it differently and with sensitivity intends to lessen the cultural baggage and stigma that burdens its victims.

    For the umpteenth time – check your privilege.

    • Robert Sanchez

      Wow, I want you to die. The things you say border on self-parody.

      Here’s a funny idea: how about instead of telling someone to “check their privilege” in an attempt to silence them, you actually address the points they raised and maybe even offer counter-points of your own?

      Does treating sexual assault with “sensitivity” necessarily mean depriving the accused student of anything approaching a fair hearing? An appallingly low standard of proof, no ability to challenge the evidence against him, no protection from double jeopardy, and a presumption of guilt enshrined in the University’s sexual assault training materials.

      Plenty of reasonable, progressive-minded people oppose the mandates of the DLC and the changes to sexual assault policy. You don’t better protect female students by stripping male students of their fundamental civil rights. False accusations of rape do exist. We know they do, and our policies for adjudicating sexual assault cases should offer the accused at least a theoretical possibility of acquittal. Something that is not presently the case.

      Check your privilege. Just because you aren’t in danger of being wrongfully sanctioned for a sexual assault you didn’t commit, doesn’t mean you should dismiss the concerns of people who are in such danger.

      • j

        First of all, you don’t know who I am; you haven no idea whether or not I’m in in danger of being “wrongfully sanctioned” (isn’t everyone? sexual assault isn’t restricted by gender. This columnist discredits himself by referring to those accused of sexual assault as solely male). I don’t want to silence this columnist–I’m just sick of reading columns that over and over provide a perspective defending the most privileged in our society as if that’s something that needs to be done.

        The Department of Education’s disciplinary procedures attempt to correct a widespread culture which discourages victims from coming forward and vilifies them when (if) they do so. About 3% of rapes are falsely reported–is this really enough to cry for justice for the apparent multitudes of falsely accused while, as the author points out, 95% of campus rapes go unreported?

        • Robert Sanchez

          So because false accusations are rare, we are justified in automatically convicting every accused person without a fair hearing? So that minority of innocent accused are just acceptable collateral damage?

          Your figure is wrong, by the way. No one knows what the actual frequency of false reports is, but numerous place the best estimate somewhere between 6-10%. With 8% being the most often cited figure. That means 1 in 12 accusations is likely false. Hardly an extreme rarity. Your other figure is also wrong. RAINN released a study last year that found that 54% of rapes go unreported. A massive improvement in reporting since the issue was last studied.

          The frequency isn’t especially important, anyway. The fact that false accusations at all demands that we protect the rights of all accused persons and give them a fair opportunity to defend themselves before we ruin their lives forever. The school should do everything it can to encourage reporting and discourage sexual violence, but that’s a separate matter from the actual disciplinary process that kicks into gear once a formal complaint is made. That process should be fair, regardless of the current hysteria surrounding sexual violence on campus.

        • Stan De San Diego

          > “‘m just sick of reading columns that over
          > and over provide a perspective defending
          > the most privileged in our society as if
          > that’s something that needs to be done.

          By “the most privileged”, you mean white boys who you just KNOW are obviously guilty, just like those Duke Lacrosse players, right? Who appointed you as the supreme arbiter of who has rights in this country, and who does not?

        • Dave

          > sexual assault isn’t restricted by gender

          The FBI, up until a few months ago, didn’t recognize men as rape victims – and this is the definition that state and local law enforcement goes by. Talk about “lazily researched”…

        • Where do you get 3% from? It is higher than that for sure. Just this week:

          And let’s now forget, Tawana Brawley, Heidi Jones, Duke Lacrosse, Hofstra rape case and so many others. And these are the ones we know of. Over 200 men have been exonerated by the innocence project, mostly rape cases. And of course there’s Brian Banks whose football career was destroyed due to the false accuser getting a $1.5 million reward for falsely accusing him and destroying his life. She got to keep it and as usual, no punishment for her false accusation. I wonder how you would feel if you were falsely accused and spent 20 years behind bars or was denied any chance of a diploma due to an accusation with no evidence, no chance of defense.

    • Funcuz

      You’re offended ? Sexual assault is a different kind of crime ? Check your privilege ?

      You are precisely the type of person the world needs less of .

      What exactly are you offended about ? That somebody would take the time to point out to you that kangaroo courts aren’t exactly in your or anybody’s best interests ? No , your problem is that you don’t think people accused of a crime should be allowed to defend themselves from the accusation as long as you “feel” like they’re guilty .

      Sexual assault is a different kind of crime in the same way that murder is a different kind of crime . Relative to each other , every crime is a different kind of crime . What you mean to say is that you “feel” like accusers should never be questioned because you can’t believe that anybody would lie about being raped or sexually assaulted (despite millions of cases over the course of history of people doing just that and lying indeed about being raped or sexually assaulted )

      Finally this “check your privilege” nonsense .

      Do you want to know who has privilege ? You do . You’ve got just as much as I do and if you’re female , you have demonstrably more . If you’re a white female then you’re one of just about the most privileged people to have ever walked the face of the planet . You get forgivable loans , preferential treatment when seeking a job , endless encouragement to reach for the stars , and , all in all , a free pass in life compared to just about everybody else . You get all kinds of goodies from just about everywhere that you have become so accustomed to that you have no idea how much you take for granted . You are the ultimate hypocrite … telling others to check their privilege while you luxuriate in a bath drawn from their sweat and toil .
      You’ve lead such a privileged life that you’ve had time to allow yourself to be brainwashed into believing that being white and male gets you a check every month . Frankly , your hypocrisy and ignorance is disgusting .

      The only thing that needs to be checked is your arrogance along with the racist and bigoted assumptions you make about other people .

      • Stan De San Diego

        > “Do you want to know who has privilege ?

        > You do . You’ve got just as
        much as I do

        > and if you’re female , you have

        > demonstrably more . If
        you’re a white female

        > then you’re one of just about the most

        > privileged
        people to have ever walked the

        > face of the planet .

        Thank you.

    • Stan De San Diego

      > “Why are columns like this and the two
      > preceding “columns (one anti-feminist
      > and one anti-homeless) still being posted?”

      Because we still have free speech in this country, whether totalitarian assholes like you like it or not. Seriously now, why don’t you move to Cuba or North Korea if the idea of reading contrary points of view upsets you that much?

  • Robert Sanchez

    Couldn’t agree more.

    • libsrclowns

      “As colleges around the country grapple with sexual misconduct issues in the wake of the Amherst scandal, they should not draw their inspiration from the Department of Education directive, which does violence to America’s tradition of civil liberties and due process.”

      Since when has Obama been concerned with civil liberties and due process. If you are an American and on his “kill” list, start watching for drones and Homeland Security searches.