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October 6 2014

20 Lawyers: Campus Sexual Assault Legislation Denies Due Process

Charlotte Hays

Quote of the Day:

Feminists have been lying to women for decades, thereby contributing to the “rape culture” they now decry.

--Mona Charen

Senator Claire McCaskill’s Campus Accountability and Safety Act (CASA) is an attempt to deal with an alleged rape crisis on campus.

But twenty lawyers who have experience handling sexual assault accusations have sent a letter to McCaskill and her co-sponsors stating their opposition to the bill.

The lawyers are worried that the complexity of the problem of sexual assault accusations and the momentum of the drive to find solutions will “overwhelm any effort to ensure fair treatment to and protect the rights of the accused — particularly with respect to due process, impartiality and the collection of evidence.”

The lawyers are concerned that the piece of legislation in question employs the word “victim” or “victims” 34 times, while it uses the “accused” only once. This, they argue, gives the accuser the status of victim before it is determined that the accusations are, in fact, accurate.

It presumes that the accused is guilty before any review has taken place. A story in the Examiner summarizes the concerns of the lawyers:

The attorneys lay out their proposal for improving CASA, including referring alleged sexual assault cases to law enforcement, rather than simply establishing a relationship with law enforcement, as the current legislation does.

To keep colleges unbiased, the attorneys requested the senators scrap the plan to have one confidential adviser serve as the initial investigator and victim’s advocate, since that presents a conflict of interest. The attorneys also suggested having an advocate for the accused, both of which would be independent from the investigation.

Also requested was for investigators to be either professional investigators or to have law enforcement experience. These investigators would conduct an impartial inquiry “to determine whether a criminal referral is warranted” or whether the investigation should be handled by the university.

As for adjudication, the attorneys again emphasized the importance of due process rights for the accused, including the right to counsel and to cross-examine accusers. The attorneys also requested eliminating “blatantly unreliable hearsay evidence” and the ability for accusers to appeal “not guilty” decisions, as that amounts double jeopardy.

We are seeing a number of attempts to deal with what is frequently described as a “rape culture” on campus. California has a newly-signed law that sexual consent must be given repeatedly at every step of the way for a campus sexual encounter.

The most recent move from the Obama administration is a campaign called “It’s on Us,” which features celebrities talking about sexual assault. Mona Charen characterizes the campaign:

The Obama administration, which believes that there is no problem so intractable that it cannot be solved with a hashtag or a celebrity spot, has produced a glitzy, star-studded PSA called “It’s on Us” aimed, Newsweek explains, at “eradicating sexual assault on college campuses.” That should do it.

Charen, as might be expected, takes a deeper look at the cultural causes behind the so-called rape culture on campus. Perhaps the proliferation of laws and public service announcements is the result of a cultural phenomenon: feminists have been lying to women about sexuality and now we are seeing the results. Charen writes:

For centuries, men have lied to women to lure them into bed. Parents warned their daughters about such men. In recent decades, it’s women who’ve been lying to other women. Feminists peddled the notion that women wanted exactly the same things from sex that men did. They rejected modesty and its cousin chivalry with contempt and welcomed the sexual free for all.

They were wrong about human nature — in this case immutable sex differences — but cannot admit it.

It goes without saying that rapists should be severely punished. Most men are not rapists, but more than a few are sexually aggressive and inclined to interpret almost anything as encouragement. Is there a better possible environment than the modern college campus for serving up vulnerable young women to predatory men?

The binge-drinking culture that facilitates these rapes and assaults is tamely accepted and even encouraged at many colleges. As Pepper Schwartz writes at CNN.com, the American Sociological Association reports that men have a mean of six drinks before a hook-up and women a mean of four. Why aren’t colleges reminding young women to keep their wits about them when dealing with hormone-charged young men?

Women who lie to other women conceal the facts. For example: The National Institute of Justice reports that among the risk factors for sexual assault on campus is “having numerous sexual partners,” getting “drunk or high” on a regular basis, and attending fraternity parties.

Pointing out these realities is rejected as “slut shaming” or “victim blaming” by feminists.

We conservatives must join in the discussion about sexual assault on campus, ever how confused it may be by liberals who see political advantage in portraying women as victims or are just plain unable to admit that feminist lies are at least partly responsible for the current climate on campus. But we should stipulate: the hook-up culture has to be part of the conversation. Some feminists believe the hook-up culture promotes female empowerment. What it really engenders are the kinds of sexual encounters that harm and confuse young women (and men).

We also need to point out that rape is such a serious crime that accusations must be put in the hands of law-enforcement, not campus disciplinary tribunals.

We know that it is difficult for an accuser to pursue justice in court, but eliminating the legal rights of the accused is not the way to deliver justice.



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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