Liberals are waking up. At least, some of them are. Even some feminists are appalled to see men being denied due process of law, losing the rights that would be theirs in the American criminal justice system.
After all, some feminists have sons. They refuse to allow their sons to be railroaded by a kangaroo court. They see that the new way that colleges and universities are dealing with accusations of sexual assault deprives the accused of the right to a trial.
One feminist public defender, Robin Steinberg declared, after examining the new Columbia University policy for dealing with the problem: “We are never sending our sons to college.”
Writing in the venerable liberal magazine, The New Republic, Judith Shulevitz explains how justice is being denied and perverted in America.
The victims of injustice are male college students accused of rape.
Who is responsible for this perversion of justice?
The government, who else. Through the Department of Education’s Office of Civil Rights it has told universities to draw up new ways to deal with charges of sexual assault. Since the criminal justice system does not always arrive at the conclusion that radical feminists want, these latter have happily used government regulation to force universities to create kangaroo courts that fulfill their radical wishes.
What’s happening at universities represents an often necessary effort to recategorize once-acceptable behaviors as unacceptable. But the government, via Title IX, is effectively acting on the notion popularized in the 1970s and ’80s by Andrea Dworkin and Catharine MacKinnon that male domination is so pervasive that women need special protection from the rigors of the law. Men, as a class, have more power than women, but American law rests on the principle that individuals have rights even when accused of doing bad things. And American liberalism has long rejected the notion that those rights may be curtailed even for a noble cause. “We need to take into account our obligations to due process not because we are soft on rapists and other exploiters of women,” says [Harvard professor Janet] Halley, but because “the danger of holding an innocent person responsible is real.”
Here is what happens when the accused loses his due process rights:
Most colleges that do allow lawyers into sexual-misconduct hearings or interrogations do not permit them to speak, though they may pass notes. Students on both sides must speak for themselves. This presents a serious problem for a young man charged with rape (and in the vast majority of campus cases, the accused are men). On one hand, if he doesn’t defend himself, he’ll be at a disadvantage. On the other, if he is also caught up in a criminal case, anything he says in a campus procedure can be used against him in court. Neither side may cross-examine witnesses to establish contradictions in their testimony. A school may withhold the identity of an accuser from the accused if she requests anonymity (though it may choose not to). Guilt or innocence hinges on a “preponderance” of evidence, a far lower standard than the “beyond a reasonable doubt” test that prevails in courtrooms. At Harvard, the Title IX enforcement office acts as cop, prosecutor, judge, and jury—and also hears the appeals. This conflation of possibly conflicting roles is “fundamentally not due process,” says Janet Halley, a Harvard Law School professor whose areas of expertise include feminist legal theory and procedural law.
How did the bureaucracy engineer this perversion of justice?
How did this shadow judicial system become the norm on college campuses? Don’t blame universities entirely. In 1997, the U.S. Department of Education’s Office for Civil Rights (OCR) started telling colleges how to handle sexual-misconduct cases, resting its authority on Title IX, the 1972 law prohibiting discrimination on the basis of gender. (Students have always been able to file police charges.) Since then, the government has issued many guidances and revisions; Congress has passed bills. The clarification that did most to change schools’ approach to misconduct was the “Dear Colleague” letter of 2011. Among other things, this document requested schools to lower their standard of proof and to conclude all proceedings swiftly, apparently without regard for the timing of any criminal investigation. If a school violates any of the many rules or recommendations, OCR may put it on the list of 84 colleges under investigation, a public-relations disaster. OCR could also disqualify it from receiving federal funding, which could mean shutting it down.
You might believe that universities are being nudged to do the right thing. In fact, they are being threatened by a government agency: do what we want or have your reputation destroyed.
And you were wondering why people are appalled by the excesses of big government.
One suspects that schools are ill-prepared to deal with accusations of felonious activity. Fair enough. That is not their business. That is not their skill set.
And yet, suspending due process because you do not like the way trials unfold is an abridgment of constitutional rights.
As a result, we have seen a proliferation of lawsuits filed by young men subjected to this extra-judicial harassment:
There is no question that many women who have made accusations of rape or assault have been shockingly mistreated by their schools. But since the “Dear Colleague” letter, more than 20 lawsuits have been filed against colleges by men punished for sexual misconduct, and lawyers believe there will be many more such lawsuits in the next few months. In some of these cases, the facts are too messy to be shoehorned into the master narrative of predators and victims that dominates discussions of campus sexual assault.
Like Camille Paglia before her, Judith Shulevitz sees that the reality of campus sex is far more complicated than the “master narrative.”
It is important to emphasize that feminism, like any ideology, is idea-driven, not fact-driven. It has chosen a narrative wherein men are predators and women are victims. It only acknowledges as fact information that affirms the truth of the narrative.
As you know, many conservatives have been protesting these extra-judiciary procedures for some time now. Perhaps now that liberals and feminists are noticing that their own sons are at risk of losing their constitutional rights, the subject might be taken more seriously.
Feminists are willing to go to the barricades to protect what they see as the constitutional right to abortion on demand but are perfectly willing to suspend the right of due process for a man who is accused of sexual assault.
Again, this is driven by a master narrative, not by facts or even truth.