Campus rape tribunals have handed down numerous guilty verdicts that have been overturned in courts of law. Why have these tribunals reached so many guilty verdicts that do not hold up in court?
Stuart Taylor and KC Johnson argue in the Weekly Standard that the tribunals reach so many guilty verdicts because college officials are trained to reach guilty verdicts.Taylor and Johnson explain:
Since 2011, the federal government has required all universities that receive federal money to provide “training or experience in handling complaints of sexual harassment and sexual violence” to adjudicators and investigators.
Since nothing in the experience of most academics prepares them to competently investigate an offense that’s a felony in all 50 states, it makes sense to train those who are assigned to investigate campus sexual-assault allegations. But the ideological regimes used on many campuses are designed more to stack the deck against accused students than to ensure a fair inquiry.
The risk of injustice is enhanced by the fact that, to the best of our knowledge, no school discloses the contents of its training materials to accused students before commencing the disciplinary process. The contrast between this training regime and the instructions given by judges to jurors in criminal trials—most obviously, that they should presume defendants innocent until proven guilty—is stark.
The training college officials are given has been guided by the Obama administration's 2011 "Dear Colleagues" letter which set up rules for handling accusations of sexual misconduct on campus and which increased the chances of finding the accused guilty by eroding his (and it is generally a male student) right to due process. Johnson and Taylor explain:
In a criminal trial,” says former Baltimore state’s attorney Gregg L. Bernstein, “we ask jurors to use their common sense and apply their own life experiences to determining questions of credibility and guilt or innocence. We do not ‘train’ jurors at the expense of considering equally plausible factors as to why [an alleged] victim’s testimony might not be credible.”
Bernstein, who during his term in office created a special unit to handle sexual-assault cases, believes a balance “can be struck in which the victim’s account is given credence and she is respected, while at the same time, the alleged assailant has the right to test the story. We should ask for no less when a person’s reputation can be altered for life by these types of [campus] allegations.”
. . .
Middlebury College’s training, for instance, urges adjudicators to “start by believing” the accuser, while asking themselves whether the accused student is “who he said he is.” The training materials twice feature a hypothetical campus rapist announcing: “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.”
The college further orders that in order to be “objective,” investigation reports must not use the word “alleged” before “victim” or “sexual assault” and must avoid passages such as “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect” or the “victim has inconsistencies with her story.”
. . .
Eric Rosenberg, an Ohio lawyer who has represented accused students in both state and federal lawsuits, says that the “systemic bias” in training materials extends to essentially “mandating adjudicators shield accusers from exculpatory evidence” as it might “re-victimize the victim.” A state or federal judge, Rosenberg explains, “would undoubtedly find [that any] jury pool members who promise not to re-victimize a party who alleges an injury should be stricken for cause.”
Beyond putting a thumb on the scale towards guilt, campus-training materials are permeated by highly debatable psychological theories, spawned in part by the Obama administration’s requirement of training about “neurobiological change.”
Bringing a rapist to justice is of the utmost importance. We know that it can be traumatic for a victim to go through the process–but it is still important that colleges do not hang the rapist label on somebody who has been falsely accused. Johnson and Taylor provide some fascinating anecdotal material on what is happening on campuses.
Secretary of Education Betsy DeVos has rescinded the Obama era guidelines but this has not been a universally popular move and some campus officials have said they prefer to continue to do business as usual.