Rape on campus is a significant problem, and so are false accusations of rape. Despite much sensationalism, however, neither is an epidemic – a fact for which we may all be thankful.
What is an epidemic, however, is the hysteria and misandry that have been fomented regarding sexual assault on campus, as well as the sweeping reforms that have been hostile to due process and the dignity of the wrongly accused.
The most prominent of education reforms premised upon this hostility to the wrongly accused is the April 4, 2011 “Dear Colleague” letter, issued by the Department of Education. Despite the lack of investigatory and prosecutorial competence among education administrators regarding felony accusations, this “guidance letter” compels schools to adjudicate every sexual assault accusation among students, and come to conclusions that may be radically different from what the police and courts decide.
Worse, it requires schools to use an egregiously low standard of evidence, and stacks the penalties for when schools get it wrong (fines and so forth) in favor of the accuser. A wave of lawsuits are already underway by young men who allege they have been victims of discrimination and denied any semblance of due process. Hundreds of articles have been written criticizing the current system. More will undoubtedly come.
The Campus Accountability and Safety Act (CASA), spearheaded by Senator Claire McCaskill and sponsored by numerous others, is the next well-intended but ultimately misguided piece of legislation purporting to address sexual assault on campus. Prior to the formulation of this bill, Senator McCaskill hosted three “roundtable” discussions on how to proceed, but only Feminists, and advocates and education administrators of similar mind (Title IX Coordinators, Deans of Students, and so forth) were allowed to take part.
Absolutely no one who had demonstrated a concern for due process and the wrongly accused was allowed to sit on this “round table” discussion.
The advocacy group Stop Abusive and Violent Environments (SAVE) has produced an excellent summary of CASA, and many others have weighed in as well. Below is a summary of my objections to several CASA provisions, followed by what CASA gets right.
The language of CASA is consistently hostile to due process
The language of the bill itself consistently conflates words like “victim” and “survivor” with the word “accuser.” It is read as though the authors of the bill believe that no one has ever been wrongly accused, a notion which is objectively false.
Language matters, especially the language of law. Law is more than just the letter of procedure; it is an institutionalization of social attitudes, and a cavalier attitude toward the wrongly accused has no place in law.
CASA establishes “confidential advisors” with clear conflicts of interest, and whose existence is in itself discriminatory since no such assistance is provided to the accused
CASA requires each school to designate a “confidential advisor” to assist each accuser. These advisors take on investigation, advocacy, and advisory roles, creating a clear conflict of interest.
Again, language matters. Let’s go ahead and replace “confidential” with “secretive” since it is more representative of that role, which is overwhelmingly performed behind closed doors and very little public accountability.
Per CASA, these secretive advisors will be trained in “victim-centered” material. Of course, by “victim” the bill in no way ever means victims of wrongful accusations, and these secretive advisors will not be trained in any of their experiences or needs, or how they may inadvertently act against them in a discriminatory or unjust fashion. These materials will likely come from those who dominate the discussion on sexual assault; in other words, they will likely be Feminist or Feminist-inspired in nature.
Although they are required to read literature on sexual assault, there is no official standard of qualifications or benchmark of competence that these secretive advisors must attain or hold themselves to that can be objectively verified by the wider public. They are not required to have any particular background in crime at all. They can simply be hired by nepotism, or the careerist or political interests of administrators. This is not good for either rape victims or the wrongly accused.
The secretive advisor will also be required to inform (encourage?) the accuser that she may opt for restraining orders (which themselves are highly unconstitutional and issued virtually on the say-so of accusers). In this manner a falsely accused male student can be excluded from the classroom and cut off from an education before he is even “found guilty” by either the court or the school.
The secretive advisor, however, will not be required to report crimes to law enforcement.
No such assistance is provided to the wrongly accused, which is an imbalance of power that is tantamount to discrimination. No one on campus is obligated to inform him of his rights (or lack thereof), the best methods of proceeding in order to protect himself, and so forth. In most cases he is totally isolated, alone, and cut off from support – which is arguably exactly what these people want.
CASA mandates sex assault surveys which have little to no academic value and are highly susceptible to political hijacking
Under CASA, schools will require students to take online surveys about their experiences or perspectives on sexual assault every year. These surveys are worthless academically because anyone can say anything when responding to them. There is no cross-examination of any of the respondents’ statements, so these surveys amount to little more than a collection of anecdotes which are taken on faith.
These surveys are intended to help gauge the “academic climate,” but because of their incredible limitations they can only do so in a very superficial manner. Doubtlessly, however, they will be hung on high as some kind of authoritative assessment by ideologues.
As has been demonstrated, schools are famous for arbitrarily adopting radically broad definitions of sexual assault, definitions that are not found anywhere in the legal system. There is no requirement in CASA that these surveys restrict themselves to the legal definitions of these crimes, so there is no safeguard against them being hijacked by ideologues who would use broader definitions to inflate the rape figures.
Given that academia is ground zero for hate crime hoaxes (including false rape accusations, many of which are made by Feminists themselves as “rape awareness exercises”), these surveys can also be disingenuously influenced by respondents as well. I highly doubt that a class of Gender Studies students will answer these surveys in accordance with how the law defines sexual assault.
A perverse incentive to fine schools in a way that compels them to railroad the accused
Former Department of Education attorney Hans Bader wrote an excellent article about a troubling provision in CASA. This provision lets the very office in the Department of Education (the Office of Civil Rights, or the OCR) that imposes fines on schools for failing to support accusers to the nth degree keep the money in its own hands, rather than passing it off to another office or the general departmental treasury (as is the custom in many similar government offices).
This creates a perverse incentive for the OCR to fine schools simply as a means of enriching their own office lining their own pockets.
What does CASA get right?
There are some things CASA does right. For example, under the Clery Act schools were previously fined a flat $35,000 for omitting crimes in their campus crime statistics (which they are required to publish publicly). This put very little teeth in these fines when they are levied on large schools. CASA requires a sliding scale depending on the school, giving them more teeth against richer schools.
My objection to the nature of these fines (which is more of a problem with the Clery Act than CASA) is that they have always come out of support and services from the students, rather than out of the pockets of/services for administrators who mess up (I suggest taking it out of their retirement fund). The students are essentially punished for administrators messing up – business as usual, in other words.
There are some other things CASA is good for: requiring schools tabulating data each year on how many cases were investigated, how many were referred to law enforcement, how many accused students were “found guilty,” and so forth. This actually makes the process less secretive, and it will provoke more discussion into why there are certain disparities between certain sets of data
Of course, we can be sure that Feminists & Friends will dogmatically assume every statistic where a male student isn’t railroaded is evidence of a “rapist who got away,” and hence grounds for school adjudications to become even more draconian than they already are. But thankfully many voices are starting to stand up to advocate fair treatment for both accusers and the accused.
I encourage you to support SAVE’s Safety of Our Students act (SOS). This bill places sex-assault investigations where they rightly belong: professionals in the criminal justice system. In this common-sense bill the school assumes a support role for the police and courts, rather than the other way around.
While websites like mine have a broader, generic focus on educational equity for men and boys, I would like to recommend these organizations, which specialize in wrongful accusations on campus:
- The Foundation for Individual Rights in Education (FIRE)
- Stop Abusive and Violent Environments (SAVE)
- National Coalition for Men – Carolinas
- Families Advocating Campus Equality (FACE)