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Thoughts on Guilt, Innocence, and Due Process from ‘Unlearning Liberty’

By May 9, 2014

Since the White House Task Force to Protect Students from Sexual Assault released its first report (PDF) last week, numerous observers have warned that its recommendations, if implemented on university campuses, would endanger the due process rights of students accused of sexual misconduct. In his book Unlearning Liberty: Campus Censorship and the End of American Debate, FIRE President Greg Lukianoff previously explained the importance of applying due process standards to university disciplinary procedures in all cases, including accusations of sexual assault:

Rape is one of the most dehumanizing acts that one person can commit against another. It is a human rights violation of the first order, and attempts to draw greater attention to this once overlooked and underreported crime are a necessary step to a better and more just society. The idea of rape should and does fill us with rage and disgust. But crimes that produce such anger and outrage are precisely those where due process becomes most important. Our righteous hatred of a societal evil can cloud our judgment and lead to a mentality in which an accusation is as bad as a conviction and where innocence itself is no defense.

Greg went on to explain the relationship between our concept of due process and freedom of speech:

The premises underlying the need for due process are in many regards the same premises that undergird the principle of freedom of speech. The idea, again, is that no one is omniscient, so we need procedures that prevent us from throwing someone in jail just because our guts tell us we should. Due process is why we have concepts like “innocent until proven guilty” and standards of proof like “beyond a reasonable doubt” and “clear and convincing evidence.”

Over the decades, however, campus judiciaries have been pressured to lower due process standards for those accused of sexual assault and to broaden the definition of sexual misconduct. Given that occurrences like date rape can be difficult to prove, I do not blame advocates for their frustration. No one wants a rapist to go free. But the crucial problem with lowering due process protections to make it easier to find someone guilty of sexual assault is that it impairs the accuracy of the justice system. Due process exists not simply to protect the innocent, but also to accurately identify the guilty. Once too much subjectivity is allowed into the system, guilt or innocence determinations are unduly influenced by less rational factors, like whether or not the administrator in charge likes or dislikes the accused.

As Greg explained, weakening due process opens the door to increased subjectivity in adjudication, which can harm both victims and the accused.

In my years at FIRE, I have seen students who I am quite convinced committed sexual assault be let off by the campus judiciary precisely because due process at that university had been so badly eroded as to allow for favoritism. On the other hand, I have seen students I am quite confident did nothing wrong found guilty of rape because the school’s policies and practices gave too much discretion to the hunches of administrators. Due process is not a problem that must be done away with to make administrators’ work easier; it is a crucial prerequisite to justice.

Greg’s observations are all the more relevant now in light of the release of the White House Task Force’s report. For a fuller FIRE treatment of these issues, see our press release.

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process