Letter to Rep. Polis From Father of Son Falsely Accused of Sexual Assault
Dear Representative Polis: I am writing to address and protest unfortunate opinions you offered recently at a subcommittee hearing on campus sexual assaults, where you said:
"It seems like we ought to provide more of a legal framework, then, that allows a reasonable likelihood standard or a preponderance of evidence standard. If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We're not talking about depriving them of life or liberty, we're talking about them being transferred to another university, for crying out loud." Your opinion unfortunately is based upon ignorance of key facts about the processes and potential consequences of such charges, of which I am aware as being the father of a student who was falsely (though later unanimously vindicated after the accuser at the hearing conceded that she'd given consent) charged with sexual misconduct by an ex-girlfriend at a major university. Forgive the length of this letter, but your stated interest on your website "to advance the cause of civil rights" and your extraordinary background tells me that you are uniquely capable of comprehending the considerations I raise. First, understand that many schools' processes in handling sexual misconduct cases have been accurately likened to McCarthy-era witch hunts, with the accuseds given little or no opportunity to present evidence to defend themselves, as we lived through. If you examine that era, you'll find virtually the same unfortunate rationale was offered - "better we ruin the lives of a number of innocent people than keep one communist on the payroll". Your comment smacks exactly of that. The concern is exacerbated where charges are made about circumstances that almost always are in private and by a student who may have a number of reasons (e.g., guilt, vindictiveness over a relationship that has gone wrong, emotional troubles, alcohol use, pressure from 'victim rights' groups, therapists and advisors, etc.) for making accusations that are not well-founded; it is interesting that many who find it easy to charge an experienced, decorated police officer with lying about the circumstances of an arrest will discount the possibility that an 18-year old student away from home for the first time might mis-state the circumstances of an emotionally charged event that may have occurred in the blink of an eye. I fear that you are unaware of the ridiculous shortcomings of college investigatory processes that may lead to a finding of 'responsibility' resulting in expulsion or lengthy suspension. I've reviewed the procedures of your alma mater, Princeton, and find it slightly better than many, as it at least requires that the accused be given some notice of the charges but still troubling in that it (as with most colleges) gives him (and it's almost always a him) virtually no role in uncovering and presenting evidence to exonerate himself. The many court cases challenging (and, often overturning) expulsions are replete with instances where factfinders were not permitted to even hear statements by the accuser or witnesses or other exonerating evidence that made it virtually impossible for the act to have occurred as charged. (And understand that the hearing panels are often composed of self-selected faculty and student activists who've volunteered for the jobs out of a desire to 'do something' about campus assaults and can hardly be considered to be objective in their roles; their 'training' often comes from organizations that are themselves advocates for 'victims' and present pro-accuser biases.) And even where students are exonerated, in many cases 'appeals' to higher school authorities result in expulsion or other disciplinary action even where the underlying factual findings are not reviewed or changed but the outcome is changed, out of fear of - or direct pressure from - the Department of Education's Office of Civil Rights. Second, and even more troubling, your suggestion that students can simply move on to another school is woefully ignorant. A student - often one our best and brightest - who is accused and found "responsible" by a college based on its (often) miserable adjudicatory procedures will find his life over. Period. No college of merit will accept him. Do you not understand this? In our state (California), policy decrees that a student expelled from one University of California is expelled from all. End of story. And recently the University of Oregon paid out an $800,000 settlement to an alleged rape victim because that school had admitted one of the alleged attackers in the face of charges (never substantiated) that he had committed an assault at his previous school; what college now would want to risk such liability? To suggest that a student who will forever have to tell college admission committees (and probably prospective employers) that he was expelled due to sexual assault charges that he can (a) just leave school and move on (as my son's school does not allow withdrawal in the face of such charges, so at the very least he would have forfeited $30,000 in tuition and still faced an adjudication of the charges), or (b) "take online courses" at Fly-by-night University in lieu of attending a college to which he'd achieved admission as a result of working his butt off for four high school years of straight A's - is flat out insulting and, you'll excuse me, devoid of any semblance of considered thought. In your follow-up response to REASON, you made an accurate point - but I think then lost the track. You wrote, "It can be a living hell to go through endless campus investigations. I've seen this go down, and there really is no winning once the accusation is made even if the process provides formal vindication." You then suggested that the student "move on" and go elsewhere. First, of course, why should one troubled student's unsupported accusation force a student to pick up and go to another university? (In my son's situation, the accuser admitted to friends that - after my son moved on to another girlfriend - his mere presence now upset her so much that she either wanted a 'stay-away' order or to get him to drop out so she wouldn't have to see him, but she felt that only by bringing a formal charge would she be able to achieve this.) Second, as I note above, he couldn't 'move on' while the charges were pending and, because at the time he was vindicated he'd just finished the first semester of his junior year, it was too late to try to transfer to and get a diploma from other major universities of choice. Your response also raises an interesting point: "If a university were to implement a 'reasonable likelihood' standard, it is important that they give the student the ability to withdraw so that their record isn't tainted, nor should a mere reasonable likelihood standard hurt their prospects elsewhere." Alas, this is naive. Colleges will insist that transfer applicants report EVERY disciplinary finding of every sort and, as a result of the University of Oregon situation described above, not quibble about the extent and nature of any findings that even hint at sexual misconduct, but will simply reject any such applicant out-of-hand. And, of course, such procedures are not simply a matter of a college's own choices, but mandated by an overreaching DOE, making these procedures an important issue for Congress to address. In short, it is confounding that our colleges are permitted - and even mandated by the DOE - to adopt from-the-hip investigatory and adjudicatory procedures (that in every particular hamstring the right of an accused to defend himself) that bear virtually no relation to the truth-finding system that the courts have spent hundreds of years trying to perfect, while making decisions that will stigmatize a young person for the rest of his life and effectively end his professional career. It is significant that in the case of my son's college he would have been entitled to a number of procedural protections if he simply had been charged with stealing another student's pencil, but that he lost all such rights when facing the most heinous of charges and consequences. Equally troubling is the DOE's insistence that in absolutely NO cases regardless of circumstances can the students' disagreement (and often it is simply that) be resolved by mediation, but such mediation is permitted and encouraged in the college's policies when the party charged with misconduct is a faculty member! It unfortunately is necessary for me and all defenders of accuseds' rights to say that I (as are my wife and son) as horrified as anyone else at sexual misconduct and have no tolerance for it. This was just the sort of thing that civil rights activists had to say in the Fifties - i.e., "I hate Communism butÂ…" Just like then, however, we do nothing to fight actual sexual misconduct by sweeping out everyone on the basis of mere suspicions and do a great harm to that effort by undermining the credibility of the processes by which determinations of guilt or innocence are made. I hope you bear these considerations in mind as you go forward and examine the issues raised in your (hopefully) many future years in Congress.