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.