Why Does Due Process Go Out The Window With Rape Cases?

Matt Vespa
|
Posted: Dec 23, 2014 9:30 PM
Why Does Due Process Go Out The Window With Rape Cases?

Zerlina Maxwell wrote that we should "automatically" (see the URL for the original headline) believe rape victims.  That goes against everything our system of justice stands for, as we base cases on the presumption of innocence until proven guilty. I’m not going down that rabbit hole–and neither should any American who believes in law and order. Dates, names, and physical evidence, need to be analyzed, cross-examined, and pieced together to build a case against the alleged perpetrator.

Again, you probably already know this, but some liberals seem to think otherwise. Why is that? Why is it that for other crimes they believe in the process, but when it comes to rape, it’s an automatic guilty verdict for the accused.

Right now, there seems to be this hysteria over sexual assault on campus. I’m not saying rape isn’t a serious issue, but its frequency may be overblown. We’ll get to that a little bit later.

Currently, the reforms and statues aimed at keeping campuses safe from sexual predators seem to be infringing on the civil rights of men. Emily Yoffe at Slate wrote a great long-from piece about the sexual assault epidemic that’s allegedly running rampant in higher education. She used the 2012 story of Drew Sterrett, an engineering student who used to attend the University of Michigan, as her foundation to delve into how college campuses have devolved into a clown circus when it comes to investigating sexual assaults.

Sterrett was a victim of this process; he engaged in what he says was a consensual sexual encounter with a female colleague at school. His roommate noted in a sworn affidavit that it was consensual, even mentioning his frustration that they were being too loud during the act, which was keeping him from sleeping.

Yoffe had a concise description of the legal fiasco that’s unfolding in American higher education:

Unfortunately, under the worthy mandate of protecting victims of sexual assault, procedures are being put in place at colleges that presume the guilt of the accused. Colleges, encouraged by federal officials, are instituting solutions to sexual violence against women that abrogate the civil rights of men. Schools that hold hearings to adjudicate claims of sexual misconduct allow the accuser and the accused to be accompanied by legal counsel. But as Judith Shulevitz noted in the New Republic in October, many schools ban lawyers from speaking to their clients (only notes can be passed). During these proceedings, the two parties are not supposed to question or cross examine each other, a prohibition recommended by the federal government in order to protect the accuser. And by federal requirement, students can be found guilty under the lowest standard of proof: preponderance of the evidence, meaning just a 51 percent certainty is all that’s needed for a finding that can permanently alter the life of the accused.

More than two dozen Harvard Law School professors recently wrote a statement protesting the university’s new rules for handling sexual assault claims. “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process,” they wrote. The professors note that the new rules call for a Title IX compliance officer who will be in charge of “investigation, prosecution, fact-finding, and appellate review.” Under the new system, there will be no hearing for the accused, and thus no opportunity to question witnesses and mount a defense. Harvard University, the professors wrote, is “jettisoning balance and fairness in the rush to appease certain federal administrative officials.” But to push back against Department of Education edicts means potentially putting a school’s federal funding in jeopardy, and no college, not even Harvard, the country’s richest, is willing to do that.

As for Sterrett, the school found him guilty of sexual intercourse without the Complainant’s consent and was suspended until 2016; the year his alleged accuser graduates. All of this after Sterrett gave a thorough rebuttal, which didn’t suggest any sexual assault had occurred. His accuser’s roommate didn’t notice any behavioral shifts until her mother discovered her diary that “contained descriptions of romantic and sexual experiences, drug use, and drinking.” Obviously, this didn’t set well with the mother, who drove Sterrett’s accuser to campus to meet with the university’s conflict resolution official. Even Sterrett’s accuser’s roommate believes that a rape story could have been “manufactured” in response to the discovery of her diary and the alleged confrontation Sterrett’s accuser had with her mother over the summer of 2012. Oh, and the accuser’s roommate also mentioned in an affidavit that the mother called her repeatedly, told her not to talk to Sterrett, and take her daughter’s side in the proceedings.

Right now, Sterrett hopes to finish his education…someday. His lawsuit is pending.

Yoffe documents this tragic story in more detail, which also includes a lengthy deep-dive into the statistics as well. Spoiler alert: they’re not accurate.

Despite what feminists and liberal Democrats have been espousing for years regarding the rates of sexual assault, it’s a little dubious to say there’s a rape epidemic. The figures they give on rape and sexual assault rival that of the Congo in Africa, where it’s being used as a vehicle of war.

Additionally, there is a very wide range for actions that are considered sexual assault. In a study of over 5,000 female college students, they defined sexual assault as anything from non-consensual intercourse to “rubbing up against you in a sexual way, even if it is over your clothes.” Most importantly, Yoffe notes that we’re experiencing a great trend in this country: violent crime is down, including sexual assaults; they’re down by more than 60 percent since the mid-1990s:

The Sexual Victimization of College Women, a 2000 study commissioned by the U.S. Department of Justice, is the basis for another widely cited statistic, even grimmer than the finding of CSA: that one in four college women will be raped. (An activist organization, One in Four, takes its name from the finding.) The study itself, however, found a completed rape rate among its respondents of 1.7 percent. How does a study that finds less than 2 percent of college women in a given year are raped become a 25 percent likelihood? In addition to the 1.7 percent of victims of completed rape, the survey found that another 1.1 percent experienced attempted rape. As the authors wrote, “[O]ne might conclude that the risk of rape victimization for college women is not high; ‘only’ about 1 in 36 college women (2.8 percent) experience a completed rape or attempted rape in an academic year.”

In a footnote, the authors acknowledge that asserting that one-quarter of college students “might” be raped is not based on actual evidence: “These projections are suggestive. To assess accurately the victimization risk for women throughout a college career, longitudinal research following a cohort of female students across time is needed.” The one-fifth to one-quarter assertion would mean that young American college women are raped at a rate similar to women in Congo, where rape has been used as a weapon of war.

No one disputes that only a percentage of sexual assaults get reported, but the studies that have tried to capture the incidence of unreported rape are miles apart.

Yoffe also mentions David Lisak, who’s acted as a consultant in the military, colleges, and other institutions regarding sexual assault, and his 2002 study that’s become the foundation for curbing the frequency of such brutal attacks in our society. In essence, those who commit rapes on campuses fit the profile of a sexual predator. They’re a small group–and they’re repeat offenders. He noted in an article for Sexual Assault Report that “decent” young men do not (although he admits sometimes they do) engage in this barbarism against women since serial offenders are responsible for 90 percent of attacks of attacks. They’re “multi-faceted,” and their attacks are pre-planned and premeditated.

It’s pretty sick stuff. Lisak found in his 2002 that 6.4 percent of men “met criteria for rape or attempted rape;” Yoffe mentioned that 80 percent admitted to taking advantaged of an intoxicated partner.

Yet, while Yoffe credits Lisak for profiling these predators who are adept at evading capture, she’s quick to note that it isn’t representative of all college men. She also mentioned that his sample included more than just this demographic:

To start, though the study was of college men, it was not of college-age men (who are traditionally ages 18 to 24). Lisak’s participants ranged in age from 18 to 71. The average age of his respondents was 26.5, and more than 20 percent were older than 30. How does a study of men in college include so many older men? Lisak recruited people from where he taught, the University of Massachusetts Boston, an urban commuter school with no campus housing. Many students are older working people returning to or just starting college. Currently, 30 percent of its students attend part time and the school’s four-year graduation rate is 15 percent. By comparison, at the state’s flagship university in Amherst, seven percent of students are enrolled part time and its four-year graduation rate is 60 percent.

I spoke with James J. Cochran, professor of applied statistics at the University of Alabama. He said that because the population of male students at UMass Boston may differ in important ways from the population of male college students across all universities, we must be careful in generalizing results from the UMass Boston sample to the population of male college students across all universities.* People tend to think that a single study is definitive, Cochran told me. But generally what a single study tells you, he said, is that we have “evidence of something interesting, let’s study it more.”

Lisak conducted the study between 1991 to 1998, at several year intervals, setting up tables on campus, where he offered men $3 or $4 to complete a study on “childhood experiences and adult functioning.” In all, Lisak and his co-author recruited 1,882 participants (the school had a total of about 5,800 male students during this period). Lisak and his co-author wrote: “Because of the non-random nature of the sampling procedures, the reported data cannot be interpreted as estimates of the prevalence of sexual and other acts of violence.” I asked Lisak about this caveat in an interview and he said, “That’s a standard disclaimer for any study.”

Hence, we come back to the issue of having healthy criticism when rape claims come forward. The mantra of the feminist left is to believe alleged rape victims because women don’t lie, or something.

After the Duke lacrosse fiasco, where the three young men were allegedly involved in sexually assaulting a stripper, they were declared more than just not guilty, but innocent by North Carolina’s Attorney General Roy Cooper. 

To automatically believe one person’s account and disregard others when a serious crime is committed goes against everything codified in our system of justice. At the same time, it’s doubly irresponsible to suggest college is a dystopia for women when the facts and figures on sexual assault are questionable at best. In fact, DOJ reports show that college students are less likely to be victims of sexual assault. 

It does appear that institutions in higher learning are not equipped for the arduous, tedious process that our system of justice takes to make sure nothing falls through the cracks, to prevent innocent people’s lives from being ruined by frivolous allegations, to get the facts straight, and allow due process.

It’s hard to do that when raw emotion and a disregard for our system of justice sets in when it comes to investigating such heinous allegations. Feminists trust women. So do I, but investigations into allegations of sexual assault need to include–and respect– due process of law, especially at the college level.