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Lawyer: In Campus Rape Disputes, the Accused Should Not Be Presumed Innocent

Betsy DeVos needs to reform Title IX.

DeVosChris Kleponis/CNP/AdMedia/NewscomThe mask slips once again. Laura Dunn, a lawyer and prominent advocate for sexual assault victims, admitted that Title IX—the federal statute behind the Education Department's efforts to compel universities to adjudicate sexual assault—does not require investigators to presume that accused students are innocent.

Dunn thinks that's a good thing.

"A presumption of innocence advantages the accused only, and Title IX requires equity," Dunn wrote in an email to Inside Higher Ed. "No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it."

The presumption of innocence is considered so fundamental to principles of justice that it is enshrined by the United Nations' Universal Declaration of Human Rights. In the U.S., the Supreme Court has held that the presumption of innocence is implicit in the Bill of Rights. When an adjudicator is acting at the behest of the federal government, and wielding the power to ruin the accused person's life, it stands to reason that the presumption of innocence should enter the picture. But for some reason, people like Dunn think young people should be stripped of this right when they set foot on a college campus.

Dunn was responding to the release of a report by the Foundation for Individual Rights in Education; the report determined that three-quarters of America's elite universities do not guarantee students the presumption of innocence in sexual misconduct proceedings. All but 10 of the 53 institutions FIRE evaluated scored a D or F rating on the robustness of their due process protections. According to FIRE:

Colleges today investigate and punish offenses ranging from vandalism and housing violations to felonious acts of sexual assault, taking on the responsibility—often at the behest of the federal government—to punish offenses that are arguably better left to courts and law enforcement. But this willingness to administer what is effectively a shadow justice system has not been accompanied by a willingness to provide even the most basic procedural protections that should accompany accusations of serious wrongdoing.

Many civil libertarians of assorted stripes now believe that the Obama-era federal guidance relating to Title IX has stripped students of their due process rights while chilling freedom of expression. Several law professors at Harvard University just released a joint statement asking the Education Department to revisit the guidance. "Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy," wrote Harvard's Janet Halley.

President Donald Trump's secretary of education, Betsy DeVos, is expected to announce changes to the department's Title IX approach soon. If campus officials are going to be involved in sexual misconduct disputes at all, the new policy should at least fully protect the due process rights of all parties involved.

Photo Credit: Chris Kleponis/CNP/AdMedia/Newscom

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  • Radioactive||

    "presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor "... no one expects the collegiate inquisition!!!

  • Sports Reporter Charles Manson||

    Funny...but seriously, now we expect little else.

  • Microaggressor||

    Keep in mind, that in the postmodernist context, the word "truth" doesn't mean what it means to you and me. In this philosophy, every individual has an equally valid conception of the "truth", and if her "truth" is that you grabbed its motherfucking leg, then there is no argument to be made against it. You are guilty of alternate-reality rape. We know you are guilty of something anyway, so sign this confession and your trip the the gulag will be a "pleasant" one.

  • Brother Kyfho||

    Its chief weapon, er, its two chief weapons are fear and surprise and, er, its THREE chief weapons are fear, surprise, and a fanatical dedication to the pope, er, cultural Marxism.

  • Fist of Etiquette||

    A presumption of innocence advantages the accused only...

    Well, unless you include the idea of justice as something that can be advantaged.

  • Charles Easterly||

    Innocence privilege?

  • Fist of Etiquette||

    Of course, how would you even know reasonably well who's guilty without a vigorous checking of the facts of each case?

  • Enjoy Every Sandwich||

    The comments in the linked article make me shake my head. Over and over they insist that "hey this isn't a court case so the accused has no rights". Uh-huh. Last time I checked rape IS a crime, and the actions of the college will mark the accused for the rest of his life.

  • Jerryskids||

    College rape is not a crime. If rape was a crime, colleges would be calling in the cops and having these dangerous rapists locked up as a menace to society instead of some namby-pamby academic hearing that results in the rapist merely being told he can't rape on this particular college campus any more. I'll believe rape is a serious offense when these Title IX administrators start treating it like a serious offense.

  • Petie||

    This is the crux of the matter. Rape is a serious felony. Handling it as an internal matter of student discipline like cheating on an exam is more dismissive and belittling of the victims than any court proceeding could possibly be.

  • PlaystoomuchHALO||

    Based on her complete lack of understanding of the bill of rights, she should be disbarred.

  • dantheserene||

    PtmH-
    Agreed. Either she cheated on the exam or forgot everything on it since then.

  • BYODB||

    "I've never seen anyone forget so much, so fast, without a severe blow to the head."

  • Rebel Scum||

    A presumption of innocence advantages the accused only

    Presumption of innocence until proven guilty beyond a reasonable doubt is the entire foundation of US law...

    and Title IX requires equity

    US law requires that the accused be assumed innocent until proven guilty. These people are totalitarians through and through.

  • Mickey Rat||

    Tiitle IX requiring merely equity us the whole point vehind the charge that through it the Federal Government is creating an alternative criminal judicial system to get around the rights of the accused. We should thank her for admitting the truth of this.

  • Quo Usque Tandem||

    "Title IX requires equity," Dunn wrote in an email to Inside Higher Ed. "No presumption should be made either way, and schools should engage in an inquisitorial process"

    Fuck yeah, that's candid. "Equity" goes well beyond any concept of justice, and if that takes an inquisition, well there's gonna be an inquisition.

  • p3orion||

    Hey, if that frat boy wasn't guilty, he wouldn't have been accused, right?

  • Mickey Rat||

    She is an advocate. She is not interested in justice, she is met2ely interested in getting a result that punishes someone for this Very Important Social Problem.

  • Texasmotiv||

    It boggles the mind how someone could get all the way through law school, pass the bar and rise to prominence as an "advocate" for title IX and not even hold a foundational understanding of something as simple as the presumption of innocence.

    It is like a friend of mine that is running for congress(D). He is a human rights lawyer and referred to free speech (in relation to right wing groups broadly labeled "nazi") as "bullshit". Turns out he just believes in rights for his side.

  • Mickey Rat||

    Ehere do you get that dhe does not understand "presumption of innocence"?

    One can understand a concept well and not like it. She obvioisly dors not like predumption of innocence for rape charges.

  • Ship of Theseus||

    Isn't that worse?

  • Mickey Rat||

    Of course.

  • Microaggressor||

    When an adjudicator is acting at the behest of the federal government, and wielding the power to ruin the accused person's life, it stands to reason that the presumption of innocence should enter the picture.

    This is your brain.

    A presumption of innocence advantages the accused only, and Title IX requires equity

    This is your brain on Neomarxism.

    College: you go in stupid, and come out stupider.

  • Jerryskids||

    Once upon a time, I'd have suggested you go in ignorant and come out stupid. Ignorance is not knowing something, stupidity is not knowing you don't know but being confident that you do. Unfortunately, kids these days are being taught from an early age that their opinions matter just as much as anybody else's instead of being taught that they're in school because they're ignorant and the teacher gets the big desk at the front because the teacher is not so ignorant. "Your opinions don't mean shit because you don't know shit" is what they need to be taught. Or, as I always silently add when I see the bumper sticker, "Question Authority.....and then shut the fuck up and pay attention to what it says, Authority's called Authority for a reason".

  • Archibald Baal||

    "The mask slips once again..."

    What mask? It fell off a loooong time ago.

  • Azathoth!!||

    Robbie keeps getting fooled.

  • Quo Usque Tandem||

    In law, the term equity refers to a particular set of remedies and associated procedures. These equitable doctrines and procedures are distinguished from "legal" ones. Equitable relief is generally available only when a legal remedy is insufficient or inadequate in some way.

    There you go, now let's get on with the inquisition baby!

  • Brother Kyfho||

    Most important thing about equity, it's entirely up to the judge to decide what to do, and they cannot be held liable for their decision.

  • AZ Gunowner||

    Better to just repeal Title IX and abolish the education department.

    Nothing, absolutely NOTHING good has come from either.

  • Hank Ferrous||

    Title IX is a nasty piece of administrative creep/over-reach; the education system is all too often little more than a stultifying indoctrination tool, geared at dulling the mind. The nation would be better served without the former and with a complete overhaul of the latter.

  • mpercy||

    I say we take off and nuke the entire site from orbit. It's the only way to be sure.

  • BYODB||


    "No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it."


    No one expects the Spanish Sexual Assault Inquisition!

  • Colossal Douchebag||

    If it's wrong to "advantage" the accused by presuming innocence, then it is likewise wrong to disadvantage same by permitting an accusation to begin with.

    So I guess we're all done here?

  • OGREtheTroll||

    What she says is the truth....a horrible, corrupt, evil truth. Title IX does not require a presumption of innocence, and is not in accord with such principles. In that regard, Title IX conflicts with millennia old legal theories and well-settled law.

    But Title IX is working as intended.

  • GILMORE™||

    "No presumption should be made either way

    I'm pretty sure there's only 2 options: assuming a crime occurred without seeing any proof, and thus pre-judging, or NOT.

    If "Not", then you're presuming that all parties are innocent.

    There is no third state of being. Innocence is simply the absence of any reason to judge. Innocence in the legal sense isn't a state of virtue, its just "not culpable" of anything not demonstrated.

    basically, her idea that there's a 3rd option - neither innocent OR prejudged - doesn't exist as far as i can tell.

  • Diane Reynolds (Paul.)||

    "A presumption of innocence advantages the accused only, and Title IX requires equity,"

    Her goal is "equity" which is always the refuge of murdering tyrants-- so it will be a continuously moving target and thumbing of scales until the right outcomes are reached.

  • p3orion||

    But the accused is usually a male, which (in feminist theory) means that he is already presumptively either already a rapist, will be one, or wishes to be. Seeing that he's guilty of the "crime" of masculinity, it's naive to assume his innocence of actual rape.

  • gagster||

    Actually, there is a third option.

    The first option would be a presumption of guilt. If the defense failed to prove the defendant innocent beyond a reasonable doubt, then he is found guilty.

    The second option would be a presumption of innocence. If the prosecution failed to prove the defendant guilty beyond a reasonable doubt, then he is found not guilty.

    The third option is neither. With no presumption, the standard would not be beyond a reasonable doubt, it would (presumably) be the preponderance of the evidence. This is the standard used in civil trials.

    With the standard set at preponderance, we'd pretty much be throwing out the concept that it's better for a hundred guilty men to go free than one innocent man be convicted.

  • WoodChipperBob||

    While the presumption of innocence does advantage the accused, there is an offsetting advantage to the accused as well.

    The fact that an investigation starts on the word of an accuser and doesn't stop just because the accused says, "I didn't do it," advantages the accuser in a manner that offsets the advantage of a presumption of innocence.

  • ||

    Good point.
    The accused cannot sue the accuser for the harm caused by a malicious lie or a delusion. The accusation and public trial can be enough punishment to ruin.
    But I'm sure Dunn doesn't give a damn. She would sacrifice justice in the name of "equity", which she can't define, but she knows it when she sees it.

  • Malvolio||

    In a civil case, there is no presumption because SOMEBODY has to win. Either the plaintiff prevails and gets damages, or the respondent prevails and gets... well, I don't know, the satisfaction of being right. The standard is "the preponderance of the evidence", which means that the tie goes to the runner -- if the case is in perfect equipoise, the respondent prevails -- but I doubt that happens often.

    So it isn't utterly unprecedented to have a system that doesn't favor the person accused of wrongdoing.

  • Finrod||

    Laura Dunn raped me. Throw her in jail. No need for a trial, after all that only helps the guilty escape without punishment.

  • p3orion||

    I'd be interested to see if Dunn's disinterest in a presumption of innocence remains unchanged if a male accuses a female of sexual assault.

  • Arcxjo||

    This is what happens when instead of 12 Angry Men, a generation of lawyers ate brought up on Keeping Up With the Cardassians.

  • ||

    So, for Dunn, a right is an "artificial favor"? And we can skip court and go straight to an inquisition? I assume a defense attorney is another "favor" that gives an unfair advantage to the accused.
    How about this? We let the accuser be judge. Wouldn't that speed things up and lessen the suffering of all? After all, that pesky pursuit of justice just slows us down. Maybe they had the right idea in the Dark Ages. Maybe the Renaissance was a mistake.

  • swampwiz||

    If I were a lad in college these days, whenever I would entertain a coed, I would simply have my computer camera on the whole time just in case she calls it "rape".

  • ||

    Rapes happen on campus and most of the studies show that the frequency is below that in the general public. Federal law here is being used to help Universities hide the campus rapes that do occur. Why are Universities prosecuting crimes. We have court systems that do that. The Universities fear that public trials will result in fewer applications for admission. It's nice to see Reason support lawful processes. The recent articles on Trump's DACA position and the story on the Florida sheriff that is going to arrest people with outstanding warrants regardless of IRMA is troubling from an organization committed to the rule of law.

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