By Caroline Kitchens at National Review Online
Eight well-intentioned senators, four Republicans and four Democrats, have come up with complicated and expensive legislation to address an alleged epidemic of sexual predation on campus. What could go wrong?
Citing widely used but shaky statistics on campus sexual assault, the coalition of senators explained that the Campus Accountability and Safety Act (CASA) will “better protect and empower students, and hold both perpetrators and institutions accountable.” The legislation is the culmination of a several-month-long investigation in which Senator Claire McCaskill (D., Mo.) and her colleagues examined federal, state, and local policies on campus sexual assault and collected feedback from “a diverse group of stakeholders.” But not all stakeholders were invited.
McCaskill’s roundtables included lots of victim advocates, rape crisis experts, and sundry others who represent victims and purported victims of sexual assault. The legislation was built on their collective wisdom. None of the students who have been falsely accused were included. Neither were any civil-liberties advocates. The result is a convoluted, one-sided bill that will do little to alleviate the problem of sexual assault. What it will do is burden universities with increased costs and regulations, exacerbate concerns about due process, and further erode the rights of students tried for sex crimes in campus kangaroo courts. Senators McCaskill, Dean Heller (R., Nev.), Richard Blumenthal (D., Conn.), Chuck Grassley (R., Iowa), Mark Warner (D., Va.), Kirsten Gillibrand (D., N.Y.), Kelly Ayotte (R., N.H.), and Marco Rubio (R., Fla.) have blithely thrown the presumption of innocence to the wind.
During the last few months, the senators met with numerous young women who have filed lawsuits against their universities, alleging they were silenced and mistreated by campus officials after reporting their assaults. Know Your IX, one of the victim-advocacy groups involved in crafting the legislation, issued a press release celebrating the CASA: “Many of these proposals grew from student experience and input, and we are pleased to be represented by Members of Congress who listen to and value survivors’ expertise on the ground.”
These women’s stories are important and deserve to be heard. By all means, they bring a crucial perspective to the debate on campus rape. But there’s another group of stakeholders who have much to lose through government intervention into campus responses to accusations of rape. In the past several years, at least 25 men have filed lawsuits against their universities, contending that they were denied due process and railroaded by campus rape courts operating under a “presumed guilty” mindset.
Civil-liberties groups like the Foundation for Individual Rights in Education (FIRE) have long decried the fact that campus courts lack the procedural safeguards necessary to protect falsely accused men. The Manhattan Institute’s Diana Furchtgott-Roth examined the appendices of McCaskill’s sexual-assault report and found that one-fourth of American universities surveyed do not allow the accused to bring a lawyer or an adviser to the hearing, and one-third do not allow the accused to call witnesses for their defense. Eighty-five percent do not use formal rules of evidence. This lack of safeguards — combined with low burdens of proof and a politically correct ethos that insists we must dogmatically “believe victims” en masse — means that campus courts have become unsafe places for the falsely accused.
The erosion of due process on campus has been well documented. Yet the Campus Accountability and Safety Act does nothing to alleviate or even acknowledge these concerns. McCaskill and her colleagues did not include a single defense attorney or civil-liberties advocate in any of their roundtables. When the Washington Examiner’s Ashe Schow astutely asked the bill’s sponsors about services and protections offered to the accused, a spokesman for Senator Rubio’s office replied, “This bill does not address that issue.”
Rubio’s spokesman further explained that “the victim will have the most authority” in directing sexual-assault investigations. But, as Brooklyn College Professor KC Johnson has pointed out, there is no such thing as a “victim” at this stage in the investigation. There is simply an accuser and an accused. The senators’ troubling language suggests they believe that a student who makes an accusation is always a “victim.” The new campus rape bill may be bipartisan, but it’s far from balanced.
Why weren’t any due-process advocates represented? Not because they weren’t willing to participate. According to FIRE’s website, its representatives explicitly asked Senator McCaskill’s office if they could take part in the roundtables. They were never included.
Last month, three mothers of falsely accused men — Sherry Warner-Seefeld, mother of Caleb Warner from the University of North Dakota; Judith Grossman, an attorney whose son was falsely accused at a small New England liberal-arts college; and Allison Strange, whose son’s trial at Auburn University waschronicled by James Taranto in the Wall Street Journal — announced the launch of a nonprofit organization called Families Advocating for Campus Equality (FACE). FACE members hope to reform the way universities respond to allegations of sexual misconduct so that other families will not have to suffer the nightmare of a false accusation and subsequent railroading by university courts. Sherry Warner-Seefeld told me that one of the reasons she co-founded FACE is that she is confident that “Americans place a high value on constitutional rights” and has faith that “if they knew about what is happening on campuses, they would demand that fair and equitable procedures in accord with the Constitution be implemented.”
When asked about McCaskill’s bill and the legislative process, Warner-Seefeld told me that she believes lawmakers are interested in listening to her perspective but struggle to achieve balance in a highly politicized and contentious debate. Policy discussions are often a “very one-sided effort.” According to the FACE co-founder, “We have repeatedly asked for a voice at these tables, and I am pleading with policy-makers to listen to all those who have contributions to make. . . . It is beyond my wildest imagination that any American would strive to implement policies or laws which, in an effort to protect one set of victims, create another group that is victimized by the process.”
If the senators had truly listened to a “diverse group of stakeholders,” mothers like Warner-Seefeld, Grossman, and Strange could have provided a much-needed perspective on the potential costs of victim advocacy run wild.
Much attention has been given to the survivors of sexual assault who have come forward to challenge the way we handle sexual assault on campus. McCaskill and her colleagues have admirably given these brave women a voice. But while doing so, they have silenced and marginalized men who have been unfairly branded for life as rapists by campus courts. Both parties — victims of sexual assault and the falsely accused — are victims of the same inadequate campus judiciary systems, and both deserve to be heard.
Our lawmakers have a duty to protect the presumption of innocence and commitment to due process that are the cornerstones of our justice system. They must also ensure that our college campuses are safe places for students of both genders. When it comes to the campus rape debate, they are failing on both accounts.