The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The dangers of gutting due process in campus sexual assault cases
A decade ago, after we wrote a book on the Duke lacrosse case, we assumed that universities and the media would see events in Durham as a reminder of why fair procedures matter. Given a tendency, for both structural and ideological reasons, to rush to judgment when considering sexual assault allegations, universities especially need procedures that will safeguard against the passions of the mob.
The past few years, however, have witnessed the emergence of an even more one-sided campus atmosphere. Federal mandates, beginning with a 2011 Obama administration directive reinterpreting Title IX, combined with pressure from activists, professors and administrators, have resulted in campus tribunals where students accused of sexual assault are effectively presumed guilty, while encountered considerable obstacles to prove their innocence. We're grateful to Eugene for inviting us to blog about our new book, which takes readers inside about 40 of these campus sexual assault adjudications, while also discussing debates over misleading statistics and the "rape culture" myth.
The system currently in place at colleges and universities runs far too great a risk of innocent students being found guilty. A recent study from UCLA's John Villasenor estimated that as many as 1 in 3 innocent students suffer this fate. The actual percentage is likely higher, since Villasenor's study couldn't take into account some aspects of the college process (such as the ability of the accuser to appeal not-guilty findings and the lack of direct cross-examination at most schools) that increase the chances of a finding of guilt.
We lead the book, for instance, with a case at Amherst, in which the accusing student sent multiple texts on the night of the incident talking about her need to construct a lie. (The male student was the boyfriend of the accuser's roommate, who was out of town for the weekend.) Amherst initially didn't discover the texts, because the college couldn't subpoena the accuser's phone and didn't bother to ask her regular correspondents if they had any texts from her. When the accused student tracked down the students to whom his accuser had texted, the college said he had produced the evidence too late. He then sued, and in a deposition the college's hired investigator said she was interested only in evidence that corroborated the accuser's account—not in evidence showing that the accuser had lied.
Despite horror stories like the one at Amherst, the mainstream media has poorly covered the campus sexual assault issue. There has been a handful of good work (most notably this Emily Yoffe article in Slate). More typical, however, has been the approach of the New York Times, which has virtually ignored concerns expressed by civil libertarian organizations and cohorts of law professors about the campus system's unfairness. To the contrary, in an article about Stanford the Times recently portrayed the university's process—which uses the lowest possible standard of proof, bans direct cross-examination by accused students, and has featured panelists who have been trained to believe that is it a sign of guilt for an accused student to respond to an accusation in a "persuasive and logical" way—as unfair to accusers. The reason? The school's one fair rule—that the three panelists must be unanimous to justify a finding of guilty.
Part of the mainstream media's bias against accused students—almost all of whom are male—flows from a broader ideological commitment toward gender and racial identity politics. But understanding the dangers of gutting due process also calls for detailed exposure of the unfairness of campus procedures. And such analysis is not the strong suit of many journalists (or many of their readers), especially—though not only—those blinded by bias.
As for the universities, the power of identity politics has generally worked in tandem with the schools' financial self-interest in appeasing federal officials who have the power to exact huge financial penalties to incubate unfairness toward accused students.
But not always. We identify at least two types of cases in which colleges and universities conform to the conventional stereotype of softness on rapists in their midst. The first involves allegations against athletes in revenue-producing sports (football and basketball) at large schools; Baylor is the best-known example. The second occurs at religious universities where a victim reporting a sexual assault would require confessing to his or her own violation of the university's disciplinary code (premarital sex, sex with a partner of the same sex); BYU is the best-known example. For understandable reasons, these cases have received much media and political attention. But most accused students aren't star quarterbacks or undergraduates at religious institutions.
While most of the troubling procedural changes have come from federal pressure or the ideological urges of colleges and universities, some states have also advanced the guilt-presuming bandwagon. Four blue states (California, New York, Illinois and Connecticut) have adopted "affirmative consent" (or "yes means yes") laws. These states' laws now have enormous inconsistencies between their definitions of sexual assault for campus tribunals and for criminal courts. In the former, an accused student must prove that he obtained "affirmative consent" throughout every sexual encounter, even with a longtime partner. This standard "is flawed and untenable if due process is to be afforded to the accused," a Tennessee state judge has ruled. While the peculiarities of campus tribunals have not yet spread to the criminal-justice system, a powerful faction of the American Law Institute is seeking to import into the criminal law rules very much like those used by the campus kangaroo courts.
Perhaps the past decade's biggest change has come in the attitude of college students. During the Duke lacrosse case, most of the university's students resisted a rush to judgment. Many called for a fair process once District Attorney Mike Nifong's vast abuses of power became manifest, and organized to defeat Nifong in the fall election. In the past few years, however, student defenders of accused students' civil liberties have been few and far between. Indeed, some of the most aggressive advocates of stripping accused students of any meaningful protections have been students or student groups. The former op-ed editor of the Columbia student newspaper explained the atmosphere. "Campus media's goal to promote discussion about sexual assault and to support survivors became conflated with a fear of rigorous reporting," he noted in February 2015. "Personally, I felt that if I covered the existence of a different perspective—say, that due process should be respected—not only would I have been excoriated, but many would have said that I was harming survivors and the fight against sexual assault."
Tuesday's post will look at the policy and legal background to the current campus structure. Wednesday's post will examine the growing body of law resulting from the dozens of lawsuits filed by accused students in the past few years. Thursday's will discuss the first full-blown trial resulting from one of these lawsuits, a Brown University case. And Friday's will conclude with some suggestions for future policy.
KC Johnson, a professor at Brooklyn College and the CUNY Graduate Center, and Stuart Taylor Jr., a journalist and National Journal contributing editor, are authors of "The Campus Rape Frenzy: The Attack on Due Process at America's Universities."