In past months, FIRE has criticized The New York Times for failing to adequately consider the repercussions for students’ due process rights when covering the steps that institutions of higher education, lawmakers, and the White House are taking to address the problem of campus sexual assault. Yesterday, however, The New York Times published an op-ed by Yale University law professor Jed Rubenfeld which offered a more complete look at the ways in which colleges and universities are failing on this issue, writing that colleges “are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.”
In his op-ed, Rubenfeld echoes many of FIRE’s concerns:
Mistaken findings of guilt are a real possibility because the federal government is forcing schools to use a lowered evidentiary standard — the “more likely than not” standard, which is much less exacting than criminal law’s “proof beyond a reasonable doubt” requirement — at their rape trials. At Harvard, 28 law professors recently condemned the university’s new sexual assault procedures for lacking “the most basic elements of fairness and due process” and for being “overwhelmingly stacked against the accused.”
Exacerbating the problem, Rubenfeld argues, is “the illogical message many schools are sending their students about drinking and having sex: that intercourse with someone ‘under the influence’ of alcohol is always rape.” As he notes, students are incapable of consenting when they are incapacitated, a very different state than simply being “under the influence” or “intoxicated.” Rubenfeld also points to the troubling reality of how policies on intoxication and incapacitation are applied:
And what if both parties were under the influence? Asked this question, a Duke University dean answered, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent.” This answer shows more ideology than logic.
Overly broad policies regarding alcohol consumption and requirements that students receive affirmative, ongoing consent allow for students to be found guilty of sexual assault even if the sexual encounter in question was consensual. This, Rubenfeld writes, not only puts students in danger of being wrongfully punished, but also undermines the fight against actual sexual assault and trivializes the experiences of victims.
Rubenfeld says that if colleges and universities “are genuinely interested in preventing sexual assault, they need to overhaul how they think about assault and what they do about it. Prevention, rather than adjudication, should be a college’s priority.” To that end, they must involve law enforcement in sexual assault cases. He writes:
Even expulsion is radically deficient. It leaves serial rapists free to rape elsewhere, while their crimes are kept private under confidentiality rules. If college rape trials become a substitute for criminal prosecution, they will paradoxically help rapists avoid the punishment they deserve and require in order for rape to be deterred.
This is especially important because, as he notes, so many sex crimes are committed by repeat offenders.
FIRE is glad to see Rubenfeld make these important points. For more, read the full article in The New York Times.