Colleges Must Promote Personal Responsibility, Not ‘He-Said, She-Said’ Trials
Harry Lewis & Jane Shaw
April 17, 2013
Only she and her sometime boyfriend know for sure whether he raped her, as she claims and he denies. Her allegation was never tested in criminal court, because she never went to the police. Instead the matter was adjudicated in a campus court at the University of North Carolina, Chapel Hill, where both were students.
This story is a tangled mess that recently made national news. But it belongs to a large genre, familiar to the first author from his years as dean of Harvard College.
First, an accusation of rape, made to college officials long after the event in question. Then, differing accounts told by the only two witnesses. Never a confession, since anything stated to the campus court could be handed to a prosecutor and lead to criminal conviction and imprisonment. No forensic evidence or contemporaneous police report.
A campus court is then stuck with the job of fairly deciding between the conflicting accounts based on credibility alone. Bitterness is inevitable on the part of whichever party is not believed.
Rape cases are hard enough to prove in a criminal court with an experienced prosecutor and good forensics. They are certainly beyond the capacity of campus courts, which were designed to punish the age-old forms of undergraduate misbehavior—cheating on tests, peeing on the president’s doorstep—not felonies that carry lengthy terms in the criminal justice system.
In this case, UNC dismissed the woman’s charges and acquitted her ex-boyfriend. The outcome of a fair, properly run campus trial could not have been any different in the absence of a confession, other witnesses, or any physical evidence.
In 2011, relying on the gender equity provisions of Title IX, the federal government issued standards for the conduct of sexual assault proceedings in virtually all American colleges. The Office for Civil Rights (OCR) of the Department of Education advised colleges that they must use the “preponderance of evidence” standard of civil court proceedings, not the “beyond a reasonable doubt” standard of criminal trials. Within a year, almost all institutions, including UNC, had complied rather than risk the loss of federal funding.
The lower standard of proof will result in more convictions—of both guilty and innocent individuals. For some, perhaps, a few false positives are merely the collateral damage of outcomes that are more just in aggregate. But this is not a convincing argument in a society that values individual rights. The lower penalty for a conviction in a college court—a “rapist” label and career-shattering expulsion, rather than imprisonment—does not justify a lower standard of proof.
The dismissal of the UNC woman’s complaint means that the honor court not only harbored reasonable doubt—it concluded that her version of events was the less believable.
Outraged by the honor court’s amateurish questioning and its findings, she and other aggrieved students then filed a complaint with the OCR about the entire UNC process, prompting a federal investigation.
And then UNC made its no-win situation worse.
After the disappointed complainant publicly criticized the honor court, the honor court put her on trial for disparagement under the UNC honor code, which prohibits “disruptive or intimidating behavior” if it “willfully abuses, disparages, or otherwise interferes with another.” As applied to this woman’s characterization of the honor court, that clause is plainly an abridgement of her First Amendment rights. She then charged UNC with retaliation, another Title IX violation. The university wisely took a step back and suspended the honor court action.
Has the flagship public university of one of the thirteen original colonies forgotten that the Founders disparaged King George in the Declaration of Independence, and then wrote guarantees into the Bill of Rights that Americans forever after could disparage authorities with impunity?
There are large lessons here, and not just about freedom of speech. One of the woman’s grievances about the honor court is that a student judge asked her why she had not left her boyfriend as soon as he started abusing her.
She is right that this was an awful question to ask as part of the judicial process. No answer could have helped settle the factual question of whether she was raped on the occasion in question. She was not on trial.
But this is exactly the kind of question that college-aged women learning to navigate their freedom would be wise to ask themselves early and often. Men should ask themselves a parallel set of questions about agreement and consent, perils and risks, how to begin and whether to stop. Part of growing up is learning to avoid situations that should not be dangerous but are. The fairest and most sensitive judicial process is no substitute for responsible choices made in advance.
The Office for Civil Rights should get out of the business of dictating the terms of college sexual assault trials. Colleges should stop the practice of “he-said-she-said” trials. And rather than undermining students’ autonomy with attempts to seem “responsive,” colleges should help students learn that caution and judgment are elements of wisdom and maturity—not white flags in a battle of liberation.