In recent columns, I've mentioned a disturbing trend involving the lack of due process in the adjudication of campus rape cases. The fact of the matter is that rape cases are rarely handled properly on university campuses. They are usually either a) taken too seriously or, b) not taken seriously enough. That is unsurprising, given that rape is both the most over reported and under reported crime in America.
To say that rape is the most over reported crime in American is to say that there are more false allegations of rape than of other serious crimes like robbery, burglary, and larceny. To say that rape is also the nation's most under reported crime is not a contradiction. It simply means that when rape really happens, victims are, for obvious reasons, less likely to report it.
Because of the tension between over and under reporting of rape, campus adjudications must strike a delicate balance between the rights of the accused and the accuser. If the process results in too many wrongful acquittals, a backlash can undercut the rights of the accused in future cases. If the process results in too many wrongful convictions, a backlash can undercut the rights of victims in future cases.
The Obama administration recently illustrated this backlash principle in a joint letter written by the Education Department and Justice Department. The letter was sent to the University of Montana (UM) on May 9 following an investigation into a number of mishandled rape cases. The letter concluded that the university's policies addressing sexual assault failed to comply with Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.
Although the letter announced a resolution agreement with the university, it went much further than simply dealing with past difficulties at UM. The letter, which emanated from the executive branch, claimed authority to rewrite the federal government's rules about sexual harassment and free speech on all university campuses.
The idea is simple: if the feds just expand the definition of sexual harassment, and police it diligently, then we'll never have to worry about sexual assault.
This stunning overreach by the Obama administration began with the claim that the UM findings should serve as a "blueprint for colleges and universities throughout the country." The letter continued by stating that only "unwelcome conduct of a sexual nature" will satisfy federal statutory requirements for defining sexual harassment. Shockingly, this definition explicitly includes "verbal conduct."