A football player at Stanford University, one of the country’s most prestigious universities, was accused of rape by a female student earlier this year, but after an in-house “disciplinary board” determined that he wasn’t responsible for any wrongdoing, he’ll be allowed to play in tomorrow’s Sun Bowl game against North Carolina, the New York Times reports.
On the surface, these boards, made up of university personnel and even students on occasion, are touted as a way for victims of rape and sexual assault to avoid the trauma of a police investigation. Victims can remain anonymous (Stanford’s anonymous sexual assault reporting center) and avoid testifying in court and subjecting themselves to cross examination and possible impeachment as they rehash painful events.
The accused often has no right to secure legal counsel and is compelled to testify, which would not happen in a court of law. For sexual activity that doesn’t rise to the level of a crime, that will often suffice.
Looking deeper, though, a disciplinary board “investigating” a rape allegation has neither sufficient teeth to punish anyone who is responsible for a felony nor the protections normally given to defendants in criminal cases when tried under our Constitution.
For example, hardly ever is a unanimous “verdict” on the part of a jury required. Most colleges and universities allow a simple majority or a near-majority to find the accused responsible for his actions. In addition, the standard of proof is simply “a preponderance of the evidence,” not “beyond a reasonable doubt,” as would happen with a district attorney.
Neither the Times nor other news outlets named the accused or the accuser in this case, since no guilt has been determined and even adults deserve protection in a case where no grand jury has even considered evidence.
Many women on college campuses have been told that drunken sex is the same as rape, and while drunk people can’t give affirmative consent, juries in rape trials often have trouble sending someone to prison if all he did was have sex while drunk with a woman who was also drunk.
- The Washington Post reports that a man was acquitted by a jury who failed to make the leap from consensual drunk sex to incapacitated rape.
Women, given the likelihood that no district attorney will prosecute their case and no grand jury will hand down an indictment, turn to these campus tribunals, whose true mission, it turns out, is to protect the reputation of the university.
This is wrong on so many levels:
- In the Stanford case, both people were drunk and had attended a party at a fraternity house just before the alleged rape. Details are flimsy, and that description is being kind to both sides.
- Women—and men—can’t expect to be able to get drunk and have nothing bad happen to them, even though many college students say that to expect them not to get drunk is naïve. But it’s just as naïve, I think, to believe that you’ll be safe, even if you get drunk on campus.
- Even a few actual predators on campus can give the whole university a bad reputation, leading to calls for punishment that are truly unjust and would never hold up in front of a reasonable jury. It is simply impossible to prove what happened beyond a reasonable doubt, given drunken memories that probably differ significantly.
- Actual crimes should be investigated by the police. It’s the only way to protect student safety. If it’s not a crime, it shouldn’t be a Title IX investigation, either, because Title IX actually appears to discourage victims of sexual assault and rape from going to the police.
- Our legislatures and Congress make the laws, not the leaders of our universities, who are charged with educating students at the schools.
- The goal here is protecting people from rape and sexual assault on university campuses. These disciplinary boards do nothing to that end. Peer pressure, buddy systems, and probably tighter drinking enforcement would work a lot better.
Now, let’s be clear about one thing: The victim, even in the Stanford case after the accused has been found to be not responsible for any sexual misconduct by the disciplinary board, can still report the incident to the police or sue the accused in a civil trial, which would have a lower standard of proof.
Nothing about these proceedings prevents her from doing that, despite the apparent tendency to discourage reporting of any crime to the police. New laws, in fact, make it mandatory for university boards to report any evidence of an actual “crime” to the criminal justice system, even if the accuser decides not to.
Furthermore, university boards can kick students out for violations of school rules, such as cheating on a final exam. There’s the full spectrum: Cheating on a test would be laughed out of a courtroom; rape would send someone to prison for life. These Title IX cases are somewhere in between, so the use of these disciplinary boards is complicated, to say the least.
So what remains is determining where we draw the line. Kicking someone out of a university doesn’t take away any rights they have, but sending them to prison would. As a result, the standard of proof and the rights of defendants are naturally higher in a court of law. We can’t call the police to investigate cheating on a test any more than we can trust university boards to investigate raping a woman.