NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
New York Post
On campus today, if you hook up with your date (or even your wife) after she’s had a few drinks, you’re often automatically guilty of sexual assault.
In the real world, drinking doesn’t necessarily destroy your freedom of choice. Many US colleges and universities, however, believe it renders you unable to consent to sex.
At Stanford University, “intoxicated” students can’t consent to sexual contact. At Princeton, you need only be “under the influence” of alcohol to lose your ability to consent — which surely makes many a student both the victim and perpetrator of sexual assault.
The idea that an adult loses all agency upon the first effects of alcohol is bizarre enough. Stranger still, colleges are enforcing these strict regulations in part because they’re scared of losing millions in federal funding.
A new mandate from the federal Department of Education’s Office for Civil Rights forces all universities that get federal funding to judge claims of sexual assault using a “preponderance of the evidence” standard — the lowest standard of proof, at about 50.01 percent certainty.
In other words, students on virtually all American campuses will now be found guilty of sexual assault if a hearing panel finds their accuser’s story just barely more credible than their own.
In an April 4 letter to colleges nationwide, OCR Assistant Secretary Russlynn Ali decreed that using any “higher standard of proof” would violate Title IX, the law that prohibits sex discrimination on campus.
Until then, most of the nation’s top schools had required that hearing panels find “clear and convincing evidence” of guilt (roughly 80 percent certainty) before branding someone a sexual predator.
All of this has combined to create a perfect storm at Stanford, where the Foundation for Individual Rights in Education (where I work) has been aiding a student found guilty of sexual misconduct for having sex with a female student while they both were intoxicated.
At the time the student was charged, Stanford was using the “beyond a reasonable doubt” standard — the highest standard of proof, used by courts in criminal cases. But after OCR’s letter, Stanford shifted to the “preponderance” standard in the middle of his case.
Plus, the campus panel that heard the case had been “trained” using documents boldly proclaiming that “everyone should be very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence” and that one indication of an abuser is that he will “act persuasive and logical.”
Perhaps the Stanford student acted too logically: He was promptly found guilty and suspended for two years. But because the OCR’s letter forces colleges to permit the accuser to appeal the decision if the accused may do so, she has appealed and is seeking permanent expulsion of her alleged attacker.
In a real court of law, retrying someone for the same offense is called double jeopardy — something everyone recognizes as profoundly unjust.
Yet, thanks to OCR, this kind of injustice is sure to grow on campus.
While reducing sexual violence on campuses is critically important, trashing students’ due-process rights isn’t the way to do it. Such protections are a safeguard against human bias and error. The more those protections are shattered, the more we are being asked to simply trust college bureaucrats — many guided by radical “training” — to punish the guilty without destroying the lives of the falsely accused.
What’s more, these absurd definitions of consent and reduced due-process protections in sexual-assault cases reek of sexist assumptions — that women are so weak that a drop of alcohol negates our ability to make choices, that we’re incapable of living as equals in a free and fair society. OCR’s new mandate and colleges’ deeply flawed policies on sexual assault and harassment are an insult to women and a serious concern for anyone who cares about individual rights and fundamental fairness.