How a Due Process Abuser Became a Rape Apologist
November 11, 2011
On Tuesday, I blogged about an anonymous letter printed in Inside Higher Ed from a college administrator who was struggling to reconcile the demands of the April letter from the federal Department of Education's Office for Civil Rights (OCR) with those of his or her job. My blog entry focused on how colleges and universities have set themselves up to fail to provide justice by using sexual assault hearing procedures that ignore traditional and in some cases literally ancient requirements of due process. (This problem was only made worse by OCR's letter, mandating that all colleges must use the lowest possible standard of evidence when adjudicating sexual harassment or sexual assault allegations, and must allow appeals for both sides if the schools allow appeals at all.)
The anonymous administrator's letter also has been criticized from the other direction by those who say that the administrator's concerns about OCR's new mandates shows that he or she is somehow a rape apologist—or "sticking up for penises everywhere," in the juvenile words used by National Center for Higher Education Risk Management (NCHERM) Managing Partner Brett Sokolow. This is a textbook political correctness-based ad hominem attack, and is exactly what led this administrator to take pains to remain anonymous. After all, the administrator wrote:
That should explain the fact that I am an anonymous author. For six months, my (real) colleagues, here and on other campuses, have been talking about the Dear Colleague Letter, about the problems it creates for us, about the apparent lack of understanding of student culture it demonstrates. But we never say these things too publicly. We worry about being branded "soft" on sexual assault by victims' rights groups and by the media, and we worry about attracting [OCR's] attention.
One of those groups is SCOPE, the School and College Organization of Prevention Edicators, an organization that "embraces an ecological, inclusive, holistic, feminist, public health, evidence-based and multi-disciplinary vision of prevention" to combat "hate, intolerance, apathy, gender bias, racism, homophobia, stigmatization of mental health, objectification of the human body, ignorance, predation and discrimination." (I know these laundry lists of buzzwords sound satirical, but they come right out of SCOPE's mission statement.) SCOPE is an organization, moreover, as I wrote in the Daily Caller, that just happens to be bankrolled by Brett Sokolow and the above-mentioned NCHERM.
SCOPE executive director Michelle Issadore and several others wasted no time in mau-mauing the anonymous administrator. They complain:
This article reinforces a number of rape myths ... The author attempts to pre-empt criticism from "victims' rights groups" and "vociferous colleagues" by saying we will think Anonymous is "soft" on these issues. We do not believe that Anonymous is "soft"; rather, we think Anonymous is dangerously misguided and borders on incompetent.
This is an absurd interpretation of thoughtful passages such as this one from the administrator's letter, based on his professional experience:
You do not know what I face every day in responding to a student culture of alcohol-infused hook-ups, where regrettable sex is a daily occurrence. The law has defined sexual misconduct as any activity that takes place with a person who is incapacitated by alcohol or other drugs. That makes sense, until you have to determine what "incapacitation" entails. I'm not much of a drinker myself, but I know that a couple of drinks loosen my tongue enough to say things I might never say without the alcohol. Am I incapacitated? No. But my judgment is impaired.
In some situations, the student who is the accuser is clearly incapacitated — practically (or actually) unconscious. In most cases, though, it's the impairment of her judgment — agreeing to have sex with someone who, the next morning, she will regret having had sex with — that causes her friends and supporters and other campus employees to tell her she's been sexually assaulted and needs to file a complaint. This process then begins the long journey down the rabbit hole of OCR-specified response that never ends well.
The first paragraph is probably a pretty accurate statement of the drinking culture present on many campuses, along with a good point about the effects of alcohol. The second paragraph reflects this administrator's personal experience and opinion. We have no way to confirm or disprove this experience without knowing all of the cases, but it is persuasive in that the administrator claims to have been discussing issues like this one with his or her colleagues for six months. Yet, when SCOPE & Co. assert that this administrator's experience "reinforces" what they call "rape myths," this doesn't make the experiences false or make the administrator some kind of incompetent rape apologist.
The administrator also says that "the [sexual assault cases] I had managed were enormously complex, full of truths, lies, reversals, angry parents, hungry lawyers and empowered supporters." How is this different from so many other criminal cases, on or off campus? It's not. Sexual assault is a serious crime, perhaps the most serious crime other than murder. Why, then, should those accused of that particular crime be denied the protections that any other accused criminal would get in a context where there is a huge amount of public pressure to be "tough on crime" and "support victims"?
Why is diminishing due process not just seen as a small price to pay but is actually seen as an improvement in justice? The answer is that in the minds of the authors of the SCOPE response (Donna Bickford of the University of North Carolina at Chapel Hill, Brenda Bethman and Michelle Kroner of the University of Missouri at Kansas City, and Michelle Issadore of SCOPE), once you're accused, you're already guilty. As they write:
Anonymous appears to be so focused on protecting accused perpetrators from being accountable for their actions, and on protecting student affairs officials and their institutions from any accusation of violations of Title IX, that Anonymous discounts the trauma and violation of sexual assault victims.
"Accused perpetrators" need to be held "accountable for their actions." Hmm. I thought that in America, you were innocent until proven guilty. Yet in SCOPE's assessment, accused and guilty appear to be the same thing, just as accuser and victim are the same. Indeed, the word "accuser" never appears in their essay, only "victim" and "victim-survivor." In a perfect world, every accuser would also be a victim. In the real world, that isn't so.
Nothing in the anonymous administrator's essay suggests that he or she doesn't want people who are guilty of sexual assault, or even sort of look like they might be guilty, to be punished. In fact, he or she actually acknowledges kicking a male student off campus before he even got a hearing because two students had accused him of date rape:
A week after she filed her report with us, beginning the process of charging him with sexual assault (she was, after all, drunk, and never verbally consented to any of his requests), a friend of hers came to us with a very similar report. Almost identical, in fact. He offered to share alcohol he had in his room. He quickly became intimate. She felt uncomfortable. He spoke, made requests, moved across the room for a condom from his dresser. She never verbally consented. She acquiesced to his requests without comment. He walked her back to her room. They had a friendly conversation the next day, and the day after that, just as they had before the incident.
Could I defend letting him remain on campus while we investigated this? My trusted (real) colleague said no ... "What if a third comes forward, and you have to explain that you knew about these first two and didn't immediately send him home?"
And so I did, and the case proceeded from there.
According to SCOPE, even this anonymous administrator's vigorous application of the "sentence first—verdict afterwards" principle (straight out of Alice in Wonderland) isn't enough; to them, the administrator is still an incompetent pusher of rape myths. One wonders: How little due process must remain for students before SCOPE and other advocates of the OCR letter's requirements will be satisfied?