As the problem of sexual assault on college campuses gains increasing attention nationwide, members of Congress are exploring ways to prod universities into better handling sexual assault accusations. Unfortunately, some lawmakers are glossing over the question of due process for accused students, seeking to compel universities to use a “preponderance of the evidence” standard in sexual assault cases—a weak evidentiary standard that can brand a student a rapist based on a mere 50.01% likelihood of their guilt, as determined by a tribunal in which due process and fair procedures are often the exception rather than the rule.
Advocates of this approach should remember the rush to judgment that occurred in the Duke lacrosse incident of 2006, as outlined in FIRE’s latest video, part of which will be broadcast as part of FIRE President Greg Lukianoff’s appearance on the Fox Business Network’s The Independents tonight at 9 p.m. Narrated by Brooklyn College history professor Dr. KC Johnson—co-author of the authoritative account of the controversy, Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Case—the video tells a cautionary tale about the dangers of ignoring due process protections for accusations of crime in higher education.
To make a long and disgraceful story short, in March 2006, an exotic dancer named Crystal Mangum accused three members of the Duke University lacrosse team of having racially slurred, beaten, and gang-raped her at a team party. Despite the lack of credible evidence of the players’ guilt, then-Durham District Attorney Mike Nifong charged the players with rape and publicly smeared their characters using a number of sordid and unethical tactics. Many members of the Duke student body and the media pilloried the defendants without ever personally laying eyes on a shred of evidence.
Perhaps most shamefully, a number of Duke professors known as the “Group of 88” published a statement in the campus newspaper implying that Mangum’s accusations were true and expressing approval of student protesters who had rushed to judgment (some protestors had even hoisted a sign calling for the lacrosse players’ castration). Through it all, Duke President Richard Brodhead failed to urge the campus community to respect the presumption of the accused students’ innocence. In the end, Mangum’s accusations were shown to be false, Mike Nifong was disbarred, and President Brodhead had to apologize for abandoning his own students to the mob. As shown in the video above, North Carolina Attorney General Roy Cooper mournfully called the case “the result of a tragic rush to accuse.”
As Duke once again finds itself in the news on this front, facing a lawsuit from a student expelled for sexual assault, the lessons of the lacrosse fiasco are as relevant as ever. This disturbing episode should serve as a warning to anyone who would let due process fall by the wayside while pursuing sexual assailants in the academy. All people accused of wrongdoing—especially those accused of acts as despicable as sexual assault—deserve to be presumed innocent until they are proven guilty, and they deserve to have their cases adjudicated with due process and according to fair procedures. That is the only way to protect not only the accused but also the integrity of the entire process.