It was the humorist H.L.Mencken who quipped that no-one ever went broke by under-estimating the intelligence of the American public. It seems that nowadays a number of American politicians are banking that no-one will suffer political harm by under-estimating the American public’s attachment to due process in accusations of rape and sexual assault.
Just when you thought that there were encouraging signs of common-sense reasserting itself, along comes Jared Polis who has plumbed new depths of casual indifference to innocent men being branded rapists.
In a higher education subcommittee he commented that colleges should use an even lower evidence threshold than the preponderance of the evidence currently mandated, and should expel students even if there was only a 20 to 30 percent chance that the accused actually committed the offence they were accused of. Furthermore, if ten students were accused of rape or sexual assault, and on the balance of probabilities one or two of them were likely to have been responsible, it would be better for the college to expel all ten students.
He justified this by asserting that expulsion was simply an administrative punishment and that the men would not suffer unduly because, since the evidence threshold was so low, the colleges would permit them to leave in good standing and they would have no difficulty in transferring to another college. Indeed, not only would this be no more than a mild inconvenience to them, it would be preferable to the emotional and psychological traumas of long drawn out hearings.
I will not dwell on how these sentiments are an affront to any notions of justice and due process since this should be obvious to any sentient being, but Sen. Polis’s belief that allowing men to leave in good standing so that they can easily transfer their studies to another college might be a satisfactory solution is, at best, naive and, at worst, disingenuous.
There has been much discussion of the effect of noting on a student’s transcript that they have been expelled under suspicion of sexual assault (the ‘scarlet letter,’ see here and here). But if all students accused of sexual assault are allowed to leave in good standing, this will mean that even those students against whom there is substantial evidence and who should be expelled will be able to transfer, which will leave female students at greater risk.
Alternatively, colleges will be forced to introduce a two-tier system of guilt, one being ‘we have evidence of your guilt’ and the other being ‘we don’t think you’re guilty, but we’re going to expel you anyway’, which would expose the complete charade which the investigation of campus sexual assault has become.
Notwithstanding this, Sen. Polis’s blithe assumption that students might be able to transfer if they are allowed to leave in good standing is misplaced. Whilst this might be possible in some cases, there are a number of barriers.
1. It assumes that a similar course is taught at another university, or at least at a university fairly nearby. Is it really reasonable to expect a student to transfer to a university 1,000 miles away or more in order to continue his studies?
2. As a university programme director who is responsible for approving the admission of students entering through unconventional routes, including transfers from other universities, I am well aware that even courses which seem to be superficially similar can be delivered in very different ways.
I therefore need to consider how the modules which a student has studied at their previous college map onto the modules studied at my university in order to judge whether they have the prerequisite knowledge for the modules which they will study. This is more likely to be a problem where students are forced to transfer at a late stage of their course.
3. Similarly, it is far less common for students to transfer in the latter stages of their studies than in the earlier stages. Students might wish to transfer after their first year of study for a whole variety of reasons, and such an application will not necessarily raise suspicion. However, if a student is expelled in the middle of his third year and is asked why he wishes to transfer by a new university, this will take some explaining.
4. Even ten years ago a university might have been able to get away with expelling a student in good standing, but Sen. Polis ignores the baleful influence of social media. If a student is expelled using this appallingly low standard of evidence, lurid details of the alleged assault might be widely disseminated on social media and, if the evidence of the Nungesser/Sulkowicz case at Columbia University is anything to go by, universities will simply react like rabbits caught in headlights. Any university to whom the student subsequently will be wary of the potential bad publicity from accepting them and will easily be able to search social media for such allegations.
5. We should not forget that Paul Nungesser was from Germany and therefore needed a visa to study in the US. I wonder whether if details of the expulsion of non-American students become public immigration authorities might not be put under pressure to revoke their visa and deport them back to their country of origin.As I have already pointed out, some of the expelled students will be guilty under any reasonable standard of evidence and we will not know who these are.
I cannot imagine that the authorities will want to allow these students to remain in the US and the only solution would be to revoke the visa of all students who leave in these circumstances. I also presume that female students also leave universities in good standing for superficially similar reasons and the authorities might feel that they must revoke their visas in order to not be accused of discrimination.
6. A number of students might gain a scholarship, without which they might not be able to study at university. If a scholarship is awarded by the university, it will not be transferable and a student may be unable to afford the fees.
A few days after making these statements Sen. Polis apologized, although whether he genuinely realized that he had overstepped the mark and regretted his statements or whether it was a damage limitation exercise is a matter of debate. Even if it was the latter we can be comforted by the fact the public reaction was such that he felt the need to make the apology. This means that public opinion is not as rabidly anti-men and anti-due process as Sen. Polis seemed to be – at least not yet.
However, the shift in what the public considers acceptable in this area over the last few years means that we should not be complacent. Despite Sen. Polis’s appalling remarks, we can still be happy that progress is being made in reversing the discourse on college rape. Such progress is never smooth, and we can but hope that this is no more than a bump in the road and that, as opponent’s pronouncements become more and more extreme, eventually they say something so awful that the world wakes up.
If his comments serve this purpose, we may in a perverse way end up by being thankful to Sen. Polis.