October 28 2011
A Senate draft bill seeking to reauthorize Violence Against Women Act (VAWA) would have dire consequences for due process on university campuses. The draft, pushed by Sen. Leahy’s office, would require campuses to reduce their standard of proof when investigating cases of sexual harassment and rape to the “preponderance of the evidence” standard embraced by the Department of Education. This is the same level of evidence that wrongly expelled Caleb Warner, a North Dakota State student who was recently re-instated after it was learned that the student who accused him of sexual assault was determined by the police to have filed a false charge about the same incident. The proposals in this new draft of VAWA will leave a lot of bodies in its wake, and it remains unclear whether it will even help reduce the incidence of sexual assault and rape on campus.
Lowering the standard of proof to “Preponderance of the evidence” means that 50.01% of the evidence needs to suggest that the accused is guilty. It’s also legalese for “finding somebody guilty based on intuition, bias, and ad-hoc reckons.” I hesitate to mention the false-accusations argument, because it’s often pushed by misogynists as evidence that “feminazis” are ruining the world. We should all be skeptical of the claim that most women would gladly endure the personal and public scrutiny of their character and sexual history in order to gain revenge for some petty slight. However, the preponderance standard is legally baseless, and subject to the fallibility and prejudices of those charged with determining guilt and innocence. It’s easy to see how a boy who’s falsely (or even erroneously) accused of sexual assault could get expelled from college if he had the poor judgment to wear a “Female Body Inspector” t-shirt in his Facebook profile.
Moreover, for every government action, there is an equal and unintended reaction. Lowering the standard of proof is intended to reduce the incidence of rape and sexual assault committed towards women, but wouldn’t it also lower the standard of proof in accusations filed against women? I don’t necessarily mean female students, either (most college men who wake up next to a so-called “butterface” will usually just claim “beer goggles!” and high-five their friends). To throw the false-accusation argument back at its proponents, imagine how easily a male student could target a sexual harassment claim against a female professor he thought was treating him unfairly. Or a gay classmate, teammate, or teacher. In addition, a low standard of proof would make it much easier for an administrator or a professor with a grudge to mete out punishment against an innocent person. The lesson here is that it’s not uncommon for laws designed to protect a group of people to be used against those people (for example, a few years back there was a feminist-endorsed Canadian law against pornography that ended up being used to censor feminist and LGBT literature).
Finally, this legislation is not going to be relevant for most campus rape cases. The vast majority of rapes are perpetrated by an acquaintance of the victim. Many involve incapacitating drugs that affect the victim’s memory. The popular image of a stalker lurking in the bushes with a knife simply doesn’t match up with the reality of sexual assault. In cases of drug-assisted rapes, many victims don’t report because they can’t recall the incident - or the assailant, who is likely to avoid getting caught anyway. When the perpetrator is a current or former lover, victims often don’t realize they’re in a toxic relationship, and hence don’t recognize incidents as coerced or nonconsensual sex. In these cases, what social workers call “rape,” abused girlfriends might consider “giving in to avoid a fight.” If a victim is coerced or heavily pressured into sex by an acquaintance or romantic interest, the social stigma against “creating drama” can keep her from reporting. All of these situations are awful. All are evidence of a persistent mindset common among many men that women have “YES” stamped on their foreheads (or other body parts). But when the majority of rapes go unreported because they go unrecognized, rules that lower the standard of evidence don’t help anyone.
Don’t get me wrong: I like the intent behind this legislation. Misogynistic groupthink among post-adolescent frat boys pervades the entire college experience, and shouldn't be excused as just "boys being boys." Rampant binge-drinking means that a lot of girls experience poor judgment at the end of the night or end up being complicit in their own exploitation. But the provisions in VAWA are the wrong answer to the wrong problem. The sexism and misogyny from which rapists operate is a larger cultural problem that’s especially dangerous among a subset of particularly brutish men, not just the result of an oversight in the university's code of conduct. Campus women’s centers, sexual assault crisis centers and student health services play an important role in counseling victims, teaching students how to establish and communicate boundaries, arming students with knowledge about date-rape drugs, and empowering those in abusive relationships to get out.
Rather than conjuring up innefective rules for administrative procedures, the real work that needs to be done is for campus leaders to continue raising awareness of what constitutes sexual assault, what “consent” means, or what to do when you identify a creep at your house party. Both women and men need this kind of knowledge dropped on them. (Guys, if you have any friends who use date-rape drugs, or habitually set their eyes on the drunkest girl at the party, or exhibit other sleazy behavior, report them. Warn your friends about them. Don’t make excuses for them).
Predators and violent offenders have no place on campus, but the last thing an average, non-predatorial eighteen-year-old boy with unenlightened views about women (or a weak grasp on the concept of consent) needs is to be expelled from the higher education system. College is an ideal place for learning how to navigate social situations and relationships as an adult. Students learn how to deal with people who are different from them. For all the noise conservatives often make about the liberal slant of academia, part of that liberal slant includes 21st-century views on sexism and women’s equality. That’s a worthy lesson for all students.