University students who claim that they were wrongly punished for alleged sexual assaults are increasingly fighting back, both in courts of law and in the court of public opinion. Unfortunately, questionable (or even debunked) narratives have already been used to justify policy changes and legislation that threaten the due process rights of accused students, while failing to adequately punish those who are actually guilty. Those who truly wish to protect the rights of all students must pay close attention as more details about cases come out, as these details often demonstrate why a fair hearing, and a presumption of innocence, are essential.
Today in The Daily Beast, Cathy Young brings us a must-read account of the famed “mattress case” at Columbia University. After Emma Sulkowicz accused fellow student Paul Nungesser of raping her in August 2012, the university found him not responsible. The odds were stacked against Nungesser—university policy required that he be found guilty only by a “preponderance of the evidence,” and Nungesser claims that he was denied the opportunity to present potentially exculpatory evidence, like text messages between him and Sulkowicz. But he still prevailed. In her article, Young shares some of these messages and relays Nungesser’s experience as he was cleared by the university but nevertheless subjected to a wave of negative publicity. Meanwhile, Sulkowicz has garnered popular support and media attention, including an invitation to the State of the Union address, for carrying around a mattress with her as part-protest-part-art, which she promises to do until Nungesser is forced to leave campus or they both graduate.
Accused students are fighting an uphill battle, made harder by uncritical and often illogical responses to allegations of sexual assault. Megan McArdle wrote for Bloomberg View last week to urge readers to consider the perspective of Phi Kappa Psi members at the University of Virginia. Even though they knew they had hard evidence disproving the horrific allegations of gang rape set forth in Sabrina Rubin Erdely’s Rolling Stone article, McArdle writes, they kept silent until others started picking apart the story, afraid that speaking up in their own defense would only make matters worse for them. McArdle argues that this is the consequence of a “moral panic about campus rape,” in which anyone who questions allegations or the policy suggestions of anti-rape activists is labeled a rape denialist, or worse. In this environment, it’s no wonder Nungesser hesitated to defend himself publicly.
And the propensity to accept, without question, allegations of sexual assault is having serious ramifications for how colleges are handling these cases. University of Chicago Law School professor Geoffrey Stone took to The Huffington Post last week to object both to colleges establishing untenable and unclear standards for consent and to colleges’ use of the “preponderance” standard. He argues that the “affirmative consent” standard presents questions that have yet to be answered by its proponents:
In many instances, especially where alcohol is involved, as it often is, extremely difficult questions arise about the meaning of “consent” and “unwanted.” Is it measured by the subjective state of mind of the “complainant” or by the reasonable understanding of the “accused”? How are the participants, and the institutions, to know whether in any given interaction the accused crossed the line?
Stone also argues that requiring only that a student be found “more likely than not” responsible for an alleged assault is inappropriate given the serious consequences the accused student will suffer if found responsible:
For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the student for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects.
Yet, these concerns are often summarily dismissed by people who argue that things won’t be so bad for accused students, or that in any case, false allegations are rare enough that they shouldn’t be considered by policymakers. In other words, it doesn’t really matter if an accused student is required to prove that he or she obtained consent for every step within a sexual encounter (a nearly impossible task), or if he or she was punished based on three out of five fact-finders’ conclusion that he’s simply more likely than not guilty. The policies that deprive accused students of a fair hearing are not generally of great concern to the public, in part because the public has already decided—frequently based solely on the accuser’s story—that the accused probably did it.
Maybe as the public learns more about cases like Nungesser’s, or that of John Doe at Occidental College, the problem with this uncritical acceptance of an allegation’s veracity will become more apparent. People are, of course, free to judge accused students without evidence or serious thought—but they should not push institutions of higher education, who are making life-altering determinations, to do the same.