Proof of Innocence
Ponder whether it should be harder for a woman to prove that a man raped her than for a man to prove that he did not.
October 16, 2012
Prof. Nancy Hogshead-Makar, a gender equity legal scholar, and Brett Sokolow, the guru of what can aptly be called the campus sexual grievance industry, have written an extremist and surprisingly puerile commentary that insists, in conclusory fashion, that the “preponderance of the evidence” standard posited by the Obama administration’s April 4, 2011 “Dear Colleague” letter is just. See http://chronicle.com/article/Setting-a-Realistic-Standard/135084/.
But first, they got one thing right: “[A]ny assertion that the new directive lowers the previous standard of proof lacks legal support, as no law or court has mandated the use of a higher standard for campus sexual-misconduct complaints. Any colleges that were using a higher standard before last year’s instructions were choosing to do so, just as they are now choosing to comply with those instructions.”
That is correct. It is for this reason, for example, that Princeton has refused to lower its “clear and persuasive” standard, and even the Department of Education is not alarmed about it. It is startling that at least a few more colleges are not sticking to principle on this issue.
But then, Hogshead-Makar and Sokolow sweep over the rights of the accused like a high-speed rail and defend the “preponderance of the evidence” standard by insisting that it is “the only standard that is equally fair to men and women.”
Why is it equally fair? You likely will need to read this next sentence more than once to convince yourself that you read it correctly: “Ponder whether it should be harder for a woman to prove that a man raped her than for a man to prove that he did not.”
We need not ponder that question for long because it scarcely survives its statement. Of course it should be harder for the woman to prove that a man raped her, because the consequences of getting it wrong are far more serious for the accused than the accuser. Nowhere do Hogshead-Makar and Soklow even bother to acknowledge this irrefutable fact, much less address it. It is the elephant in the room that needs to be dealt with but isn’t.
“The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman of Cornell has said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She added that procedures proposed at her school in response to the Department of Education’s “Dear Colleague” letter were “Orwellian.” (Prof. Kevin Clermont of Cornell said that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.”) See http://www.cotwa.info/2012/04/law-professors-dear-colleague.html.
Even Mr. Sokolow, currently the most prominent victim’s advocate on American campuses, elsewhere has said that “a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” Mr. Sokolow said the reaction borders on “hysteria.” He pointed out that expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake. See http://www.cotwa.info/2012/04/brett-sokolow-colleges-now-are.html.
It is axiomatic that a wrongful acquittal is a terrible thing, but it is never, ever the equivalent of a wrongful expulsion. A woman who watches her rapist go free due to a lack of evidence does not forfeit her reputation or her future as does a man wrongly found guilty. Somehow, that is lost on Hogshead-Makar and Soklow.
The Princeton model is instructive. It employs a dual system that protects the accused by maintaining the “clear and convincing” standard, but it also allows the school to find by a preponderance of the evidence that the accuser’s Title IX rights have been violated by the school. If the latter has occurred, she should be treated as a victim. This might require, for example, the separation of the accuser and the accused as well as other protections for the accuser that may impose certain restrictions on the accused. But it would not include besmirching forever his reputation, and impeding his education and employment opportunities, by expelling him.
Holding more rapists responsible for their misconduct is a critical and laudatory goal. But Hogshead-Makar and Sokolow blink at the fact that the “Dear Colleague” letter enhances the risk of severely punishing innocent students. Because the crime of rape is almost always committed in private, without corroborating evidence, it is difficult (but not impossible) to prove. The goal of the Obama administration in insisting on a lower standard of proof is to nab more rapists. The problem is that the absence of corroborating evidence to establish guilt or innocence in “he said/she said” cases is scarcely a valid justification for making it easier to punish the presumptively innocent. Just the opposite: it is a sound reason to be ever more vigilant of the possibility of punishing an innocent man for something he did not do.
There is some confusion among some readers about the difference between the “preponderance of the evidence” and the “clear and convincing evidence” standards. “Preponderance of the evidence” allows the school to find a young man guilty even if it is 49.9% sure he did not do it. It allows for expulsions where there is considerable doubt as to guilt. “Clear and convincing evidence,” on the other hand, means that there is enough evidence to produce in the mind of the trier of fact, without hesitancy, a firm belief or conviction as to the man’s guilt.
If all that’s a little too murky, let’s put it in concrete terms: “he said, she said” testimony alone typically does not produce “clear and convincing” evidence of guilt, see Mitchell v. Mitchell, 767 So. 2d 1037, 1041 (Miss. App. 2000), but credibility determinations of “he said, she said” cases “are often the very essence of making a finding by a preponderance of the evidence.” Beitel v. OCA, Inc. (In re OCA, Inc.), 551 F.3d 359, 372 (5th Cir. 2008).
Under a “preponderance of the evidence” standard, young men on college campuses need to hope they are not wrongly accused by women majoring in theater arts because justice in these cases has been reduced to deciding which party is the better actor.
To illustrate how backward they’ve got it, consider this: many colleges now apply the more stringent “clear and convincing” standard for lesser offenses (e.g., stealing an inexpensive item) that are typically easier to prove and that do not carry the weighty consequences associated with a finding of guilt in sexual assault cases, but they apply the lesser “preponderance of the evidence” standard for far more serious and difficult-to-prove sexual assault cases. Down the rabbit hole we tumble.
A nasty strain of gender get-evenism seems to underlie the commentary by Hogshead-Makar and Soklow, and that may account for their refusal even to consider, much less protect, the interests of presumptively innocent men who might just be wrongly accused. They write: “Men commit the vast majority of acts of sexual harassment and violence on campuses, and they should not have a systemic advantage that makes it easier for them to do so and avoid accountability.”
Why should the mantle of fairness that adorns college disciplinary proceedings be removed only for offenses that are typically committed with penises? Such a position seems sexist in the extreme.*
*It is also grossly disingenuous to insist that there aren’t enough wrongly accused to worry about. http://www.cotwa.info/2012/07/not-enough-falsely-accused-to-worry.html