'Yes means yes' opposition: It's about due process, not misogyny By Ashe Schow
It's easy enough for women writers to attack men who write against "yes means yes" laws as crude misogynists. But it's a simple and lazy response that ignores all the women who oppose them as well based on concerns about due process rights.
Many big-name journalists have been writing about the “yes means yes” laws recently — Ezra Klein, Jonah Goldberg, Jonathan Chait — you may notice a pattern there. Salon’s Katie McDonough insinuated that Chait — who has written in opposition to the law — dismisses women’s opinions on the law in order to respond to a man – Klein.
I, too, received criticism when I interviewed four due process advocates with intimate knowledge of what a lack of such rights can cause. I was chastised for only interviewing men (naturally, I get no credit for being a woman).
But in fact, due process is important, and due-process advocacy is by no means exclusive to men.
Elizabeth Bartholet, one of 28 current and former Harvard Law professors who recently wrote in opposition to the university's new sexual assault policy, told the Washington Examiner that while she had no “silver bullet” to creating a perfect policy, she did believe such a policy should take into account the rights of the accuser and the accused.
“[A] starting point in an academic institution is an institutional process that involves faculty, and that focuses on the various interests at issue which include: the rights of those victimized by sexual misconduct, the rights of those falsely accused of same, and the rights of both faculty and students to both free speech and freedom to engage in personal relationships,” Bartholet wrote in an email. “The federal government is forcing down the throats of universities throughout the land the government's solutions.”
She went on to say that Harvard previously had a policy developed by law professors over many years, but that was replaced by the new government directive. There are many women who oppose the new rules, but they are being ignored by the Obama administration in its quest to solve a problem that is real but constantly exaggerated through the use of transparently dubious statistics.
“The federal government has been listening to one group of women only,” Bartholet wrote. “There are lots of other women, including me, who see the federal government’s policies as demeaning and degrading for women, as the exact opposite of empowerment for women.”
Bartholet wrote there were even more women faculty members who oppose Harvard’s new policy – which is essentially the “yes means yes” law – but who didn’t want to publicly state their opinion.
“The government’s push is to suppress sexual activity to the max,” Bartholet wrote. “Many women, including many women’s rights advocates and many feminists, think this is a very wrong approach to the complex issues involved.”
Kimberly Lau, an attorney who is currently representing several young men suing their university for denying them due process, expanded on the idea that the new policy from the Obama administration, as well as California’s law, are degrading to women.
“For the last hundred years or so, I believe that a large part of the feminist movement was built on women striving for the equality of treatment between the genders,” Lau told the Examiner. “That said, with equality comes accountability and because of that, I find it offensive that there are presumptions being made about who should be in control of the sexual encounter even where both male and female students have been drinking.” (Emphasis original.)
When asked what a better solution to the current policies would be, Lau agreed with what other professors and attorneys have said before: Turn the cases over to the police.
“I believe there is an inherent bias that exists in the administrators who are charged with deciding these cases on campus; they are on the payroll of the institutions that are at risk of losing significant federal funding if they are found non-compliant with Title IX,” Lau said. “Thus, I believe these types of cases are better investigated by law enforcement and decided by criminal courts of law.”
Caroline Kitchens, a scholar at the American Enterprise Institute, agreed that the police should handle the investigation, since sexual assault is a crime – not merely “misconduct,” as the universities are now treating it – but noted that schools should play an important part in the process.
“Experiencing a sexual assault is [a] uniquely traumatizing ordeal, and universities are well-situated to provide counseling and services to victims to ease their suffering,” Kitchens told the Examiner. “Most importantly, universities should ensure that women know where to go in the immediate aftermath of an assault so that victims can get the medical attention they need. Without prompt attention, it will likely be very difficult to get the evidence necessary to hold perpetrators accountable.”
Those services are included in the California consent law, the proposed bill in the U.S. Senate and the administration’s guidelines, but Kitchens explained further.
“Unfortunately, it has become not only acceptable but commonplace for victims to look to university conduct boards as an appropriate avenue for seeking justice,” Kitchens said. “This system fails both victims and the falsely accused.”
Kitchens explained that the problem for this system is caused by campus investigators having an incentive to protect the college’s reputation at all costs – making them susceptible to political pressure and rewarding them for finding young men guilty rather than innocent. Still, Kitchens emphasized, young men who are not innocent should face criminal justice.
“Rapists are criminals who make the conscious decision to commit a violent crime, and most are repeat offenders,” She said. “Expulsion is not an adequate punishment. We need to focus on returning the criminal justice response system and holding offenders legally responsible if we want to stem rape.”