To push an issue, a leader usually needs to have integrity or street cred. Abraham Lincoln had the first when he led the country out of slavery. Richard Nixon, a security hawk, had the second when he made peace with China. President Donald Trump admittedly has neither when it comes to women’s issues.
So his administration is hardly in any moral position to revamp the rules governing sexual assault on college campuses that President Barack Obama, a paragon of propriety, put in place. Yet Obama’s rules were so overzealous and draconian that civil libertarians who care about the rights of the accused should welcome Education Secretary Betsy DeVos’ proposed reforms.
In 2011, the Obama administration sent a “Dear Colleague” letter to colleges that receive federal funds — which is literally all of them but one — laying out the blueprint they needed to follow in sexual assault cases to avoid running afoul of federal Title IX rules that bar sexual discrimination in higher education. Although the administration didn’t say it in so many words, the clear implication was that if colleges failed to comply, they would lose their federal dollars.
The impetus behind the guidance was the (indisputably correct) notion that scandal-averse campus authorities have a powerful incentive to disbelieve victims and brush assault claims under the rug. Michigan State University’s handling of Larry Nassar, the physician who molested female athletes for decades before his victims were finally heard, is ample proof of that. Still, the Obama rules swung the pendulum too much in the opposite direction, wrecking basic notions of justice, equity, and fairness. It basically set up sexually inexperienced students to be treated like Nassar-style predators — especially minority men.
Among other things, the Obama rules inflated coercive sex to include anything a partner didn’t like, prompting universities around the country to embrace an “affirmative consent” standard where any encounter in which both parties fail to first obtain explicit permission was to be treated like rape. Consent when intoxicated doesn’t count, which covers the vast majority of campus encounters. They required university authorities to investigate every single untoward sexual encounter, regardless of whether it occurred on campus or at a beach over spring break, even when the involved parties didn’t launch a formal complaint. In fact, if any authority figure on campus got a whiff of anything untoward, they’d be obligated to report it.
The Obama rules also eviscerated due process requirements by telling universities that letting the accused cross-examine his (and occasionally her) alleged victim would be too “triggering” and signal that they don’t believe her. They didn’t require a written statement of allegations against the accused, sometimes leaving them in the dark about what exactly their “crime” was. But worst of all, they mandated that universities reject the “clear and convincing” evidentiary standard that requires about 75 percent certainty of guilt before convicting — and embrace, instead, the “preponderance of evidence” standard that requires only 51 percent certainty.
As a result of the lowered standards, hundreds of hapless young men have been wrongfully convicted — simply because their partners subsequently regretted the encounter. There have been several instances when the accused has been convicted even when there was plenty of evidence showing that he did not even initiate the sex. This was the case with Kwadwo Bonsu, the son of immigrants from Ghana, studying engineering at the University of Massachusetts.
It is hardly surprising then that over 200 unfair treatment lawsuits have been filed against universities since 2013, half of which have resulted in a favorable verdict for the accused.
So out of hand has the situation become that groups such as FACE — Families Advocating for Campus Equality — have sprouted to highlight the plight of emotionally devastated kids facing ruin. One mom describes how her son, a shy and nerdy kid who was a National Merit finalist, was expelled in his junior year after his girlfriend of one year broke up with him and then subsequently became troubled by the memory of their first sexual encounter. Numerous texts telling him how much she loved his gentleness evidently weren’t enough to exonerate him. He finally sued and settled for $150,000 although he remains traumatized. Other moms describe how their kids lost job offers and graduate school admissions following baseless accusations.
The feminist backers of the Obama administration note that the underreporting of sexual assault is a bigger problem than false reporting. This is certainly true, but even they admit the incidence of false rape accusations is somewhere between 2 to 10 percent. That adds up to a lot of innocent lives ruined.
Defenders of Obama’s policies argue that, since universities can only throw the alleged culprits out of college — not in jail — the weaker due process protections aren’t out of line. But it is precisely that logic that restrictionists have used to weaken due process protections to make it easier for immigration authorities to detain and deport illegal immigrants. They argue that detention camps are not prisons and deportation is a civil, not a criminal, remedy.
The upshot? About 4,000 Americans get detained or deported every year. In fact, about 1 percent of the detained population at any given time consists of American citizens.
No progressive finds that rate acceptable. Yet they have no qualms about the higher rate of false sexual misconduct accusations, and are going after DeVos’ proposal to restore campus due process rights. But all her proposal would do is give schools the option of embracing the somewhat stricter clear and convincing evidentiary standard for conviction. It would also give the accused the right to cross-examine their alleged victims and require universities to investigate only complaints that are officially filed, not everything anyone hears or reports. Also, universities will be liable mainly for incidents that occur on campus, not anywhere. And should all the involved parties agree, universities will be allowed to offer mediation in lieu of disciplinary action.
There is room to quibble. But the kind of hysteria that some liberals are unleashing is hardly justified. House Minority Leader Nancy Pelosi (D-Calif.) condemned DeVos as “anti-woman.” California Democrat Sen. Diane Feinstein tweeted that what DeVos was doing was “absolutely unconscionable.” Some liberal groups accuse that DeVos stands with “rapists not survivors.”
By that logic, however, our entire justice system stands with murderers, thieves, and drug dealers. Such claims basically turn the presumption of innocence on its head.
DeVos might be a flawed messenger for the excesses of Title IX, given the morally compromised leader she represents. But liberals are morally compromising themselves by ignoring her message.
The Week · by Shikha Dalmia · September 13, 2018