The Times, OCR and Student Rape Trials

KC Johnson
March 14, 2013

Nearly two years after the Office of Civil Rights ordered all universities to lower the procedural threshold through which accused students can be found guilty of sexual assault, the New York Times turned its attention to the issue–via a five-person “Room for Debate” item.

Superficially, the segment seemed balanced: two essays in favor the policy, two opposed, and one neutral. And one of the opposition essays was very strong indeed–FIRE’s Robert Shibley noted, “If you only read one non-FIRE article on campus due process this year, this should be it.” The Student Press Law Center’s Adam Goldstein opened with a jarring, but wholly appropriate, pop quiz: “What major felony should be investigated and adjudicated by amateurs, in secret, without subpoena powers, a right to representation, or any kind of due process controls?”

Of course, only in colleges and universities (or among the figures that ran Obama’s first-term OCR) could answering “rape” to Goldstein’s question be viewed as prudent. In addition to defending basic principles of due process, the Goldstein essay noted the unintentional folly of the OCR system: that the best-case scenario under the OCR standards is a rapist walking free, sometimes (after a suspension) on campus, even though many on campus might not even know that there’s a student found guilty of rape in their midst.

For the second OCR “critic,” however, the Times incredibly chose TV commentator, Poynter guest lecturer, and adjunct law professor Wendy Murphy. Yes–the same Wendy Murphy who said that she never encountered a woman who made a false claim of rape; who mused on national TV that one of the Duke lacrosse players might have been sexually abused as a child; and who made nearly two dozen outright errors of fact in her lacrosse case commentary. (That record, of course, didn’t prevent the Times from viewing her as sufficiently credible to turn over editorial space to her.)

Unsurprisingly, Murphy’s Times essay didn’t exactly mount a ringing defense of due process: instead, she suggested that the OCR-mandated changes won’t do enough to ensure that “perpetrators are held accountable by campus officials.” Murphy instead called for all campus claims of rape to be reported to police.

As for the Times’ other essayists: their pattern seems to be to view due process as not the best way to pursue the truth but as an inconvenience or even obstacle on the road to gender-based justice.

Amherst student Dana Bolger praises the OCR approach on the grounds that “the criminal justice process revictimizes rape survivors,” while “the college disciplinary system offers survivors a shorter process and quicker remedy.” (Bolger seems to presume, although she doesn’t come out and say so, that anyone who reports a rape is a “survivor.”) Self-described “activist” Elischia Flood defends OCR, and observes that “a good system can preserve the dignity of the survivor and the rights of the accused by making the reporting process clear, in writing.” In other words: a clear bureaucratic chain-of-command somehow provides sufficient protection for the “rights of the accused.” And Michelle Caiola of Legal Momentum, formerly the NOW Legal Defense Fund, presents herself as neutral on the question of whether colleges or police should handle on-campus rape allegations, but worries that college disciplinary panels (the bodies, again, that can convict at a 50.1 percent certainty, often in hearings where the accused lacks a right to counsel or the right to cross-examine his accuser) too often are not “educated about the realities of sexual assault,” because “they may believe common rape myths.” Like Murphy, the NOW attorney appears to believe that campus disciplinary tribunals aren’t tough enough on the accused.

The Times has an editorial reputation for favoring civil liberties. Apart from the Goldstein essay, even a minimal respect for civil liberties was absent in the “Room for Debate.”