We've seen story after story about the pitfalls of allowing universities to handle sex crimes. Most of the focus has been on the harm to victims: Campus police bumble investigations; image-conscious administrators discourage women from pressing charges; kangaroo courts with inadequate training dole out mere slaps on the wrist.
No doubt about it, sexual assaults are still not taken seriously -- look no further than the president of Lincoln University in Pennsylvania, who apologized last week for saying women on campus reported being raped because they had sex with someone and “it didn’t turn out the way they wanted it to turn out.”
But it's not just the rights of victims that are violated when we allow universities to prosecute these crimes. It's also the rights of the accused -- who are increasingly claiming discrimination under Title IX, the federal gender-equality statute, the New York Times reported yesterday.
This is an entirely valid complaint. Sex assaults, like any other serious felony, should be handled by our criminal justice system. Colleges should not be permitted to use their own separate tribunals. Defense lawyers who argue that their male clients have been discriminated against should be on the same side as advocates for female victims who say universities don’t treat sex crimes seriously enough.
Their grievance is the same: This is amateur hour, which is dangerous for everyone involved.
There are chilling examples not only of mishandled victims, but of men who get railroaded by the system. As lawyer Judith Grossman described of her own son’s case – in which he was accused by an ex-girlfriend of “nonconsensual sex” during their relationship years prior, allegations that were ultimately dismissed – the tribunal does what it wants, Bill of Rights be damned.
Grossman said her son was not allowed to face his accuser, have a lawyer in the room, present his own witnesses or evidence. There was no cross-examination. He was given only the vaguest description of the accusations against him.
And colleges have a much lower bar than prosecutors for finding that a sexual assault has occurred. They need only to determine that it was more likely than not to have happened, instead of making the accuser prove it "beyond a reasonable doubt." Schools can even put the burden on the accused to prove the "victim" actually gave consent.
All of which begs the question: Why are we treating college rape differently than rape everywhere else? Isn't this how universities got themselves into trouble in the first place?
It’s true that our judicial system moves slowly, and you wouldn’t want your daughter stuck on campus with her accused rapist while her case winds its way through court. Perhaps colleges could use a form of protective order to keep a male student away from the alleged victim – or suspend him outright, pending the resolution of criminal charges.
Yes, a male student could be wrongfully accused and suspended while the case is played out. But that’s still better than being suspended and found guilty of rape without due process. In a university ruling, that doesn't mean jail -- but it still stigmatizes a student for the rest of his life, and could kill his chances of being accepted to graduate school.
For the sake of everyone involved, let's remember why we have Constitutional safeguards in the first place. Both sides deserve justice -- the victim and the accused.
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