Ed and Christine wrote about Rolling Stone’s stunning failure on verifying key facts in their widely discredited–and now retracted–story about a gang rape at the University of Virginia on September 28, 2012. It was a story that captivated a nation, started another dialogue about rape on college campuses, and showed the dangers of rushing to judgement concerning these crimes. Why does due process go out the window when it comes to rape? In local and national news outlets, every other crime has at least a scintilla of doubt in the reporting. Murders, theft, credit card fraud, drugs, are some of the crimes where most of the public seems to exude the “wait and see/let’s see what the investigation turns up” aspect regarding justice.
Again, of course, it’s not every case, but the intensity is never felt as much than with a reported rape. When attempts are made to ascertain the truth, cross-examine witnesses, cite data, or present exculpatory evidence, there are forces that seek to end that process. One could argue that colleges have established ad hoc law through school tribunals, where the threshold of evidence for a conviction has been lowered, which is a tacit acknowledgement that college campuses either don’t have the resources for a full-investigation, or that they’re not good investigators. That makes sense; college administrators aren’t seasoned detectives. The new methods of combating sexual assault were mentioned in the CSJ’s report:
In late 2009, the Center for Public Integrity began to publish a series of articles that helped inspire even stricter federal guidelines. The articles bared problems with the first generation of campus response: botched investigations by untrained staff members; adjudication processes shrouded in secrecy; and sanctions so lacking that they sometimes allowed rapists, including repeat offenders, to remain on campus while their victims fled school.
The Obama administration took up the cause. It pressured colleges to adopt more rigorous systems, and it required a lower threshold of guilt to convict a student before school tribunals. The new pressure caused confusion, however, and, in some cases, charges of injustice. Last October, a group of Harvard Law School professors wrote that its university’s revised sexual misconduct policy was “jettisoning balance and fairness in the rush to appease certain federal administrative officials.”
Indeed. Judith Grossman, a mother, lawyer, and feminist, wrote a harrowing account of the school tribunal system in 2013 after her son was accused of sexual assault by an ex-girlfriend (via WSJ) [emphasis mine]:
On today’s college campuses, neither “beyond a reasonable doubt,” nor even the lesser “by clear and convincing evidence” standard of proof is required to establish guilt of sexual misconduct.
These safeguards of due process have, by order of the federal government, been replaced by what is known as “a preponderance of the evidence.” What this means, in plain English, is that all my son’s accuser needed to establish before a campus tribunal is that the allegations were “more likely than not” to have occurred by a margin of proof that can be as slim as 50.1% to 49.9%.
How does this campus tribunal proceed to evaluate the accusations? Upon what evidence is it able to make a judgment?
The frightening answer is that like the proverbial 800-pound gorilla, the tribunal does pretty much whatever it wants, showing scant regard for fundamental fairness, due process of law, and the well-established rules and procedures that have evolved under the Constitution for citizens’ protection. Who knew that American college students are required to surrender the Bill of Rights at the campus gates?
My son was given written notice of the charges against him, in the form of a letter from the campus Title IX officer. But instead of affording him the right to be fully informed, the separately listed allegations were a barrage of vague statements, rendering any defense virtually impossible. The letter lacked even the most basic information about the acts alleged to have happened years before. Nor were the allegations supported by any evidence other than the word of the ex-girlfriend.
The hearing itself was a two-hour ordeal of unabated grilling by the school’s committee, during which, my son later reported, he was expressly denied his request to be represented by counsel or even to have an attorney outside the door of the room. The questioning, he said, ran far afield even from the vaguely stated allegations contained in the so-called notice. Questions from the distant past, even about unrelated matters, were flung at him with no opportunity for him to give thoughtful answers.
Grossman, a self-described Ms. Magazine subscriber back in the day, wrote that she had the resources to provide legal assistance to her son. In the end, the charge was dropped, but not after this family was put through hell.
“While my son was instructed by the committee not to ‘discuss this matter’ with any potential witnesses, these witnesses against him were not identified to him, nor was he allowed to confront or question either them or his accuser,” wrote Grossman.
“Across the country and with increasing frequency, innocent victims of impossible-to-substantiate charges are afforded scant rights to fundamental fairness and find themselves entrapped in a widening web of this latest surge in political correctness.”
Now, she noted that instances of rape on campus should be investigated and the perpetrators brought to justice, but you cannot do that without a basic system of fairness and due process. She ends her scathing piece on the whole process as a warning–that a college campus could become a “snake pit of injustice,” and that “unbridled feminist orthodoxy is no more the answer than are attitudes and policies that victimize the victim.”
Nevertheless, the orthodoxy within the feminist left seems to automatically believe alleged rape claims, as Charles Cooke of National Review wrote [emphasis mine]:
In the Washington Post, Zerlina Maxwell argued that “we should believe, as a matter of default, what an accuser [of rape] says,” for “the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.” This view was seconded by the lawyer and journalist Rachel Sklar, who confirmed for posterity that she considers “women who speak of their own experiences” to be automatically “credible,” and anybody who asks questions to be a rape apologist. On Twitter, meanwhile, Slate’s Amanda Marcotte concluded that anybody who has questions about a given account must by definition be engaged in a dastardly attempt to demonstrate that no rape stories are ever true, while CNN’s Sally Kohn grew angry at Jonah Goldberg when he asked for more evidence. Perhaps the best example of the all-zetetics-are-heretics presumption came from the remarkably ungracious Anna Merlan, who rewarded Reason’s Robby Soave for his investigative work by throwing an epithet at him: “idiot.”
Now, none of this is to say that Sabrina Erdely is not responsible for her own mistakes. Clearly, had she and her colleagues followed the established rules of journalism, they would not be in this position. But it is worth noting that, by so steadfastly refusing to do her due diligence, Erdely was in fact behaving exactly as a good portion of the “social justice” Left believes is proper. Her initial instinct — to find and to trump up a story in order to illustrate a supposedly broad problem — was that of the frustrated activist who, irked that his favorite injustice is not getting the attention that he just knows that it deserves, takes it upon himself to invent or to overstate or to falsely peddle a dramatic tale that will garner the requisite amount of attention and change the world for the better. Her methodology — more specifically, her failure to properly investigate her primary source for fear of vexing her or of “discouraging” other victims — has been widely endorsed by a good number of feminist commentators. Even her apology — such as it was — followed a classic path: To wit, “I’m sorry for getting the details wrong, but I hope you won’t think this means it wasn’t true.”
This might the dumbest thing ever published in a mainstream newspaper http://t.co/jORAcDlRqU— Michael C Moynihan (@mcmoynihan) December 6, 2014
Chloe Angyal of Feministing thanked Erdely on MSNBC last December for her article in Rolling Stone; this was also the time when the narrative was beginning to fall apart.
I have to thank you, Sabrina, for writing this. I think you’ve done a tremendous act of public service, and I’m genuinely very, very grateful. It is hard to read an article like this and avoid the conclusion that we live in a culture that hates women, just hates us. It’s hard to read an article like this and conclude that the men in this culture, the boys and men in this culture, are raised to see women as not just less than them but in some cases as less than human. But one thing really stood out to me, which is the statistic about how boys and men in frats are three times more likely to commit sexual violence. But I think as Raul says — you know what, I just used a euphemism there, and I shouldn’t do that. They are three times more likely to commit rape. And I think Raul makes a really interesting point. This is not just about party schools. And it would be at our peril to pretend that this is just a frat problem. Yes, it at frats and football teams, but it also happens on the chess team and in dance companies. This is not just a frat problem. This is an American problem.
Nevertheless, this isn’t about society not trusting women. CSJ makes it clear that the number of false rape allegations is very small, maybe 2-8 percent of all cases. But it certainly is a case about the rush to believe one side of the story–no matter what–before all the facts come to light at the conclusion of a proper investigation. As such, we should view any crime reported with healthy skepticism that’s grounded in due process of law. Let the evidence come out, let’s analyze, and then make our decision, which is usually carried out in a court of law. After all, isn’t being factual a cornerstone of justice.