Jerry Sandusky

The Politics of Campus Sexual Assault

Why is the federal government pushing to reduce the due process rights of college students?

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Nearly two years ago, in February 2010, University of North Dakota student Caleb Warner was thrown out of school with a three-year ban on reapplying after a campus disciplinary panel found he had violated criminal laws by sexually assaulting a fellow student. In fact, Warner was never actually charged with a crime in the justice system—but his accuser, Jessica Murray, was. In May of the same year, the Grand Forks, North Dakota police department formally charged her with filling a false report after concluding its investigation. (Murray now resides in California and has never appeared in court to answer the charge.) Yet Warner remained banned from campus until last month, when he was finally reinstated after the indefatigable FIRE—the Foundation for Individual Rights in Education—interceded to publicize his plight.

Now, some in Washington are pushing for measures that would create more such travesties.

Warner was found guilty under a "preponderance of the evidence" standard of proof—the lowest standard, under which a defendant is guilty if the disciplinary panel believes it is even slightly more likely than not that he committed the offense. Traditionally, most colleges have adjudicated charges of misconduct against students under the higher standard of "clear and convincing evidence"—less stringent than "beyond a reasonable doubt," but nonetheless requiring an extremely strong probability of guilt.

A few months ago, the Office for Civil Rights of the Department of Education undertook to change that. On April 4, the OCR sent out a letter to colleges and universities on the proper handling of sexual assault and sexual harassment reports. One of its key recommendations was to adopt the "preponderance of the evidence" standard in judging such complaints.

While these guidelines supposedly reflect federal standards for Title IX sex discrimination cases, former Education Department attorney Hans Bader has argued that they are actually based on a basic misunderstanding of federal law. In Title IX cases, the "preponderance of the evidence" rule applies to an institution accused of violating the plaintiff's rights—not to another individual accused of an offense.

Last month, it seemed likely that schools which failed to adhere to the OCR's new regulations would be strong-armed into obedience by federal law. The Senate draft bill reauthorizing the Violence Against Woman Act, sponsored by Sen. Patrick Leahy (D-Vt.), would have required all schools that receive federal money to follow the OCR's guidance in disciplinary proceedings. What's more, this version of VAWA expanded the OCR's recommendations so that the "preponderance of the evidence" standard must apply not only to complaints of sexual assault but also of domestic or dating violence and stalking. Non-compliant institutions stood to lose all federal funding, including their students' eligibility for tuition assistance.

Fortunately, the backlash was swift, and not limited—as during the passage of the original VAWA in 1994—to a handful of marginal men's rights activists. The strongest objections came from FIRE, which denounced Leahy's move as potentially depriving college students of due process. On November 11, the Burlington Free Press reported that Leahy was scrapping the provision requiring colleges to use the lower standard of proof in cases related to sexual and domestic violence from the VAWA reauthorization bill.

Nonetheless, the new Department of Education guidelines remain in force (the OCR never even replied to FIRE's letter criticizing them). And, while these regulations carry no penalty for non-compliance, they will undoubtedly continue to exert pressure on colleges to disciplinary codes. A number of schools, including major universities such as Stanford and Yale, have already amended their procedural rules in response to the OCR letter. A comment from Stanford Dean of Student Life Christine Griffith strongly suggested that concerns about violations of students' rights were not misplaced. If some were worried that the changes in the burden of proof might be unfavorable to the accused, Griffith told The Stanford Daily, it was "an opportunity for people to be saying to themselves, 'I need to be really educated about these issues because I don't want to find myself in this circumstance.'" In other words, it's up to potential defendants to be extra careful to avoid any ambiguous situation that might lead to a rape charge.

Of course, these "convictions" are before campus disciplinary panels, not in criminal court. Yet they are still likely to have grave consequences. A student found guilty of sexual assault in such a hearing faces not only expulsion from school, but the stigma of having committed a felonious act even if it is not prosecuted under criminal law.

Sexual violence on campuses is a real problem that, until fairly recently, was usually treated with not-so-benign neglect. Yet Washington's push to force colleges into taking a more aggressive stance is based on a highly inflated notion of an "epidemic" of campus rape. The OCR letter cited the recent Campus Sexual Assault study, commissioned by the National Institute of Justice, as evidence that one in five female students experience rape or attempted rape while in college. Yet the vast majority of the incidents in the study were related to "incapacitation" by alcohol or drugs rather than physical force—and "incapacitation" was defined so broadly as to include impaired judgment. Not surprisingly, most of the women labeled as sexual assault victims did not see themselves as such, did not feel traumatized, and did not report the alleged offense because they did not consider it serious enough.

Unfortunately, much of the feminist "war on rape" has conflated sexual assault with muddled, often alcohol-fueled, sexual encounters that involve miscommunication, perhaps bad behavior, but no criminal coercion. As a result, the drunken hookups all too common on today's campuses can lead to devastating charges and penalties. (The accusations against Caleb Warner reportedly stemmed from such an encounter as well.)  Should colleges promote responsible sexual conduct? Of course—but not by irresponsibly misusing charges of rape or trampling the presumption of innocence. 

Cathy Young is a contributing editor at Reason magazine and a columnist at RealClearPolitics. A version of this article originally appeared at RealClearPolitics.

NEXT: The Descendants

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  1. Warner was found guilty under a “preponderance of the evidence” standard of proof?the lowest standard, under which a defendant is guilty if the disciplinary panel believes it is even slightly more likely than not that he committed the offense.

    Existence of external genitalia is all that is necessary for a guilty verdict.

    And if anyone wants to look into why tuitions have grown out of control, one thing to consider is that universities believe they must staff their own criminal justice systems.

  2. This article is pretty badly timed, methinks.

    1. Why? Because one high-profile person is accused of a crime, you think everyone else accused of a similar crime ought to have a much harder time defending themselves against what might be trumped-up charges?

      1. Two are accused; methinks the floodgates are open for more.

        Reminds me of the CC

      2. Of course not. I agree with the gist of the article, but you can’t deny the timing.

        1. Actually, the timing couldn’t be more appropriate. There is still a tendency in this society to presume accused sex offenders guilty until proven innocent and to even convict them without a single shred of concrete evidence.

          It’s arguably a greater evil and greater tragedy than the alleged crimes.

    2. There are parallels, though. Colleges handling criminal affairs internally, both via cover-ups and campus “justice” systems, is impressively terrible.

      1. No, there is no “bad timing” Tulpa.

        Only those terrified of, or belonging to, the anti-child molestation hysteria Oprichina would suggest that this article is badly timed.

    3. Dick Cheney was right about one thing- Leahy is an asshole.

      1. …with an extremely punchable face.

        1. Alas, it’s a punch-deprived face.

  3. In other words, it’s up to potential defendants to be extra careful to avoid any ambiguous situation that might lead to a rape charge.

    Here’s how to handle that collegiate “ambiguity,” guy-kids:

    Could a college girl never convincingly say you’re “creepy?” If she said it, would people think there’s something wrong with her, not you? Any of the buildings on campus have your dad’s name on them? He a politician? A professor anywhere? Was your grandpa ever on a “blacklist?”

    Rape away, bro! No one will ever give a shit.

    Or are you some kinda dork? Got a twitchy elbow or something? Lazy eye? Bald spot? Seven hundred Slayer bootlegs? Know what “URL” stands for? Does “?=?” piss you off?

    Then become severely gay-until-graduation. You need dated pictures, every day, of you loving cock. If you miss one day, that’ll be the day you swing for makin’ eyes at White women.

    Good luck!

    1. Or get yourself an engineering girl. It’s working out quite well for me.

    2. Pablo Picasso was never called an asshole…

      1. Scroll down to see my reply to your post….

    3. You could just become an actual rapist, then at least it would be a fair cop. Plus, women are apparently often still too scared or ashamed to report actual rapes, so your risk of jail time would be lower.

      1. I don’t see how that’s apparent.

        1. Neither do I.

          Females have been uninhibited about lying about rape since Potiphar’s wife accused Joseph and probably long before that too. So concluding that females are inhibited about crying “rape!” when they’re not lying is unrealistic.

  4. by a knock out. ding ding ding ding.

  5. What’s wrong with turning over rape/assault charges to the real-world police and the real-world courts? They have *some* experience with that sort of crime, after all – not that they’re perfect, but at least they have more expertise than some Oppression Studies oh-no-he-has-male-organs-we-must-convict-him-or-lose-our-funding Kampus Kangaroo Kourts.

    Or students could find some alternate form of education – on the job training, technical school, correspondence courses at night, etc.

    1. Or students could find some alternate form of education – on the job training, technical school, correspondence courses at night, etc.

      Fine, but who will be the first to start? In many fields, which college you attended matters, either for getting a foot in the door. In many others, you need an advanced degree to even be able to practice. Until that changes, college is more than just another choice, and the government intervening to impose the moral code of its bureaucrats matters a lot.

    2. “What’s wrong with turning over rape/assault charges to the real-world police and the real-world courts?”

      Because then the righteous totalitarians that dominate our college campuses wouldn’t be able to deliver true “social justice.” Cops can’t deliver social justice and besides who are we to deny the Marxist cabal their training ground for the larger totalitarian state?

      1. Those “righteous totalitarians” were nothing until the principle of separation of school and state was cut down. Do-gooders did that, by the way.

        What, you don’t believe there ever was such a principle? Where do you think the idea of colleges and universities having their own independent campus law enforcement powers came from? (Duh.) It’s only now that the state – primarily the federal government – has breached the wall of separation that those campus peace-keeping powers have been so totally perverted.

  6. It seems as though a long-time Syracuse hoops assistant coach is the latest Jerry Sandusky. I wonder if this a domino effect that will take down college sports?

    1. Do you have any information to the effect that people have suddenly lost interest in big time hoops and gridiron?

      1. Absolutely none. More people will probably watch. I’m just thinking that while our country burns, Congress will perpetuate another witch hunt and strong-arm The NCAA into reigning mf’s in.

        1. Your thinking makes sense. There are people here who regard what Jerry sandusky is alleged to have perpetrated as worse than soldier boys and the troopies mass murdering Afghanis, Iraquis, Pakistanis, Yemenis and Libyans.

          No Penn State coach owed a duty to any other person to protect such a person from a former coach. Period. Not. in. a. free. society.

          1. There are people here who regard what Jerry sandusky is alleged to have perpetrated as worse than soldier boys and the troopies mass murdering Afghanis, Iraquis, Pakistanis, Yemenis and Libyans.

            I hear ya

            No Penn State coach owed a duty to any other person to protect such a person from a former coach. Period. Not. in. a. free. society.

            Legally, no. Ethically, I disagree. And that’s what will be argued in the imminent civil suits.

            1. Ethically? How far does it go? If you came upon a cop beating the fuck out of a an unarmed, prostrate victim, is it your ethical duty to step in and prevent the cop from doing any more damage?

              If one cop comes upon three others beating and tazing a victim, he does owe a duty to the victim.

              1. How far does it go?

                That’s the million dollar question. Although I would not say since there is no “line in the sand”, he shouldn’t have done anything.

                If you came upon a cop beating the fuck out of a an unarmed, prostrate victim, is it your ethical duty to step in and prevent the cop from doing any more damage?

                Yeah, well Joe Pa, as probably the most powerful man in PA, didn’t have to risk any physical harm in handling it himself. Not sure this is a fair comparison.

                If one cop comes upon three others beating and tazing a victim, he does owe a duty to the victim.

                True dat. He’s paid to make it his problem.

          2. To be fair, this is true anywhere. Reason reports on the injustice of eminent domain in the US, but it’s nowhere near as awful as the ongoing repression in places like Africa. It’s just more visceral, and what happens from it potentially has a direct effect on our own lives.

            Drone bombings of children in Pakistan don’t impact our lives (thanks to the low incidence of terrorism, of course). A molestation scandal out our alma mater does.

            1. Interesting argument Amakudari, your POV reminds us that perspective is lost in the story

          3. “No Penn State coach owed a duty to any other person to protect such a person from a former coach. Period.”

            They gave the guy a key to locker room in which he raped a 10 year-old boy in the ass. The graduate assistant caught him in the act.

            Rather than knocking Sandusky on his ass and yelling, “What the fuck do you think you’re doing?”, he ran out and told his bosses, who then dragged their feet and essentially let it slide.

            The guy was raping a kid, for chrissakes. He did it on property that these people had control over, by using access that they gave him.

            And they had prior reasons to suspect he was acting inappropriately with the kids.

            As to whether a person has any duty to the kid under such circumstances, a full exposition of the facts is necessary to reach a conclusion one way or the other.

          4. I also don’t see how what soldiers might be doing in Afghanistan or anywhere else is relevant. Whether it’s “worse” or not – and I don’t know how you would quantify that – is totally irrelevant.

            Thrill killings of civilians obviously is wrong, illegal, immoral, unethical, etc.

            That doesn’t mean that a full-grown man diddling young boys in the locker room is “better” or not as awful, or should be prosecuted, or that those who might have been in a position of responsibility or knowledge should not be held accountable, IF the facts show that they should, in fact, be held responsible in some way.

    2. Take down college sports? There is way too much money involved for that. Universities make mints form college sports.

  7. In other words, it’s up to potential defendants men to be extra careful to avoid any ambiguous situation that might lead to a rape charge.

    Let’s be honest about this. Just like everything else feminism has pushed since the 60’s, this is about making men responsible for women’s bad choices and/or giving women inordinate amounts of legal power over men.

    1. Yup…it’s ALL our fault.

    2. Misandry is not only socially acceptable but THE social norm these days.

      At the same time, anyone who acknowledges proven innate gender differences FAVORING men is vilified and ostracized.

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  9. “muddled, often alcohol-fueled, sexual encounters that involve miscommunication, perhaps bad behavior, but no criminal coercion”

    Why did this phrase make me think of Warty?

    1. It shouldn’t, as it says “no criminal coercion”, not “sexual encounters that involve rape”.

    2. Sounds like the probable circumstances of his conception.

  10. Great libertarian thinkers like Hayek, always longed for a shift in societal thinking, whereby when tax cuts are suggested, the question isn’t, how will the government survive, but how great it will be when the money is spent by those creating the wealth.

    In much the same way, the only negative issue about Ms. Young’s post, is that the vast majority of women writers likely believe her to be guilty of giving aid to the enemy for even suggesting a level of proof which doesn’t assume the alleged victim must be telling the truth based solely upon the fact they said it.

    Tulpa suggests this is badly timed…?

    I respectfully submit that the issue, isn’t with her timing, it’s with the assumption that articles about the negative consequences of incorrectly implementing justice should be evaluated based upon something as trivial and non-controllable as time.

  11. Great libertarian thinkers like Hayek, always longed for a shift in societal thinking, whereby when tax cuts are suggested, the question isn’t, how will the government survive, but how great it will be when the money is spent by those creating the wealth.

    In much the same way, the only negative issue about Ms. Young’s post, is that the vast majority of women writers likely believe her to be guilty of giving aid to the enemy for even suggesting a level of proof which doesn’t assume the alleged victim must be telling the truth based solely upon the fact they said it.

    Tulpa suggests this is badly timed…?

    I respectfully submit that the issue, isn’t with her timing, it’s with the assumption that articles about the negative consequences of incorrectly implementing justice should be evaluated based upon something as trivial and non-controllable as time.

  12. This is very timely with the false accusations brought against Herman Cain.

    1. +1000

      There’s still no shred of concrete evidence against Mr. Cain.

      Yet the misandrist media has made this non-story a story and assassinated Mr. Cain’s character.

      Unless they have concrete evidence, Cain’s accusers should STFU.

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  16. But to comment on the article…why should some psycho chick have the ability to have you thrown out of school. Plenty on them out there. And they’re evil.

    1. Ooops…plenty “of” them

      1. If they’re psycho, it’s probably not a good idea to have sex with them.

        Find a sane woman. But then, she would probably be looking for a sane guy, so you may as well go with the psycho.

        1. By male standards, all women are insane, it’s just a matter of degree.

          1. Yup!!! And feminists are in denial. Everything is the man’s fault. That shifts the blame and allows their stupid views to be taken seriously.

            1. Double Yup!!!

              Here’s a psycho-femme detection hint: her drinking at parties is her pre-meditated attempt to provide her rationalization hamster with post-party excuses for giving it away and pretending that she’s really a “nice girl.”

              What’s the difference between a slut and the girl described above? The slut is honest and has more self-respect.

        2. Ya but what if you find out they’re psycho after you have sex? Be real. The whole thing about being psycho is the ability to hide that fact in order to manipulate and dramatize.

          1. Or you don’t find out until after you’ve married them. My wife revealed he psychosis two months after we wed. It’s been twenty years of fun ever since. I recommend psychological testing, in addition to counseling, prior to marriage.

        3. You don’t have to have sex with them. Look at the hysterical hype surrounding Lizzy Seeburg.

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      1. “Larger pieces are no doubt going to be the center of the room, but will it take away from the rest of the decor, will in interfere with your other art work. ”

        So, probably not.

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  19. “Sexual violence on campuses is a real problem that, until fairly recently, was usually treated with not-so-benign neglect.”

    I would say that is a political invention, that since the early 80’s has been treated with massive over-reaching policy.

  20. This subject has been in the news here in VA recently. Whatever the Virginia gubmint agency is that oversees such stuff is considering requiring colleges and universities to at least notify local police about claims of sexual assault. Some have pushed to have them turn over the entire investigation and prosecution, because – unlike the article above indicates – the issue is not so much false allegations, but that sometimes the colleges do not pursue the case very aggressively – they don’t want the crime stats making their campus look bad. Several women have come forward with their stories about how the deans or other university officials basically tried to downplay the situation and discourage them from alerting outside authorities.

    Seems to me if there is an allegation of a violent felony, we’ve got a police force and experienced detectives to investigate such things. Campus cops are there mostly to write parking tickets and make sure drunk freshman don’t prop the dorm doors open with pizza boxes.

    1. This is a very good point. Victims often face subtle pressure to keep things “in house.” The pressure is usually in the form of a (pretty much true) admonition that the criminal justice system takes a long time, is difficult on the victim, and often does not reach satisfactory results.

      I wonder what the effect will be when those pressuring the victim not to go to police can also say, “Plus, we have a campus justice system where you don’t have to face the accused, and conviction is virtually guaranteed.”

  21. So this is sort of like a reverse Constitutions of Clarendon?

  22. Rape is the primer attack piece of the femiNazi hate campaign against men. Penalties far exceed harm done. Most accusations are pure fiction. And hate of men is the primary agenda. Shame on Congress and University authorities for pushing anti-men hate. Men need to abandon hate institutions entirely. Duke University, U of North Dakota, Brown University, and all others that have anti-men hate rules should have NO men students. They are anti-men hate institutions unfit for men to attend. Shame on them all.

  23. thank you a lotssssssssssssssssss

  24. You really missed an important point.
    The federal government is NOT “pushing to reduce the due process rights of college” STUDENTS.
    The “federal government pushing to reduce the due process rights of college” M-E-N.
    If a “preponderance of the evidence” hearing were to be imposed upon a female student at any campus in the United States, for ANY offense, the uproar would remove the administration of said campus.
    Some are more equal than others.

  25. All rise.

    The Doctorates of Defamation are now in session.

    You are accused by this council of RAPE!

    What do you have to say for yourself, you disgusting, vile creature?

    “Well, I…”

    ENOUGH!

    SILENCE!!!!

    Just we suspected…the cretin DENIES IT! Has there ever been a more damning form of evidence than DENIAL?!?!?!?

  26. Where’s the 14th amendment when you need it? Last time I checked, North Dakota was still part of the United States.

    1. You checked to see if North Dakota was still part of the United States?
      Really?

      1. In all fairness, the last time he checked might have been first grade geography.

  27. I think you guys are missing the point. Every time there is an attempt to institute additional “due process” rights, it is related to rape. People get falsely accused of EVERY crime for a multitude of reasons, but whenever there’s an outcry about a defendant not getting “due process” it’s targeted at those accused of rape. It’s not based in fact, which actually shows that a very small percentage of rape reports are false. It’s based on this mythology that women cry rape constantly and the poor men need to be protected from those horrible viscous women. Before anyone replies to the post, take a moment to think — really think — about this: if the case had been the same, but the charge armed robbery or murder, would people (not just you but society) be acting this way?

  28. Wow, thank you kathy for this article.Someone needs to protect the (mostly college guys) from a now “culture of false rape accusations” that has reached such a degree that girls will whimsically cry “Rape” for such trivial reasons as they don’t want to pay a cab fare. The false rape society has also mentioned the dangers of stripping college guys of their rights of basic equal protection under the law, especially now that false rape accusations are so commonplace.

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