Expel 10 If One or Two Are Guilty of Rape?

At a House oversight hearing last week, Representative Jared Polis (D-Colorado) seemed deeply troubled by two arguments raised by FIRE’s Joseph Cohn: that trained police, rather than campus bureaucrats, are better equipped to investigate felony offenses; and that the current campus tribunals deny meaningful due process for students accused of sexual assault. In response, Polis asserted, “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”

The Colorado congressman has now retracted parts of that assertion, in an op-ed that raises more questions than it answers. Polis writes that he “misspoke” when he “went too far by implying that I support expelling innocent students from college campuses, which is something neither I nor other advocates of justice for survivors of sexual assault support.” (Polis doesn’t explain why, if that’s the case, campus rape activists in the audience applauded his remarks.) But his chief justification for his policy shift appears to be tactical: He states that his “remarks have detracted from the substance of this debate.” (In fact, the activists’ applause provided a remarkable, if chilling, clarifying moment.)  Moreover, his op-ed leaves the impression that he simply spoke hastily or emotionally in a “back and forth exchange” the hearing, even though he reiterated his position afterwards in an e-mail conversation with Reason’s Robby Soave. Did he misspeak (or, I suppose, “mis-write”) to Soave, as well?

It appears, nonetheless, that Polis no longer believes that colleges should expel ten students accused of sexual assault if only one or two of them is guilty. But what about his other hearing statements?

Polis’ retraction comes in a defiant op-ed in which he expresses strong opposition to the concept that police, rather than campus bureaucrats, should handle the investigations of campus sexual assault. This is, he writes, a “deeply dangerous idea that demonstrates a cursory and superficial understanding of the issue.” (The congressman doesn’t say if he believes that campus bureaucrats should handle other serious student-on-student felonies, such as attempted murder or felony assault.) He also defends the Obama administration’s insistence that these campus hearings use the preponderance-of-evidence threshold.

In the hearing, Polis mused that colleges could use an even lower burden of proof—“reasonable likelihood,” which he defined as 20 or 30 percent chance of guilt. Does he still believe this? His op-ed doesn’t say.

In the hearing, Polis minimized the stakes for students accused of sexual assault. “For crying out loud,” he chuckled sarcastically, the worst that could happen to a falsely accused student would be transferring to another institution. Does he still believe this? As Eugene Volokh pointed out, Polis’ statement seemed either supremely cynical or flat-out misleading—since it would envision universities simply passing around actual rapists, or would involve Polis deliberately minimizing the difficulty of a transfer (not to mention subsequent employment opportunities).

Finally, Polis offers a new argument in his op-ed. “For those of us also concerned with the rights of the accused,” he writes, “dragging their name through the newspaper as an accused rapist through a criminal justice process will haunt them forever, even if they are found not guilty.” It’s heartening to see that Polis has suddenly discovered a concern with the rights of the accused. He oozed contempt toward Cohn, the only witness at the hearing who focused on due process for accused students; indeed, he suggested at the hearing that due process was irrelevant, since the accused student couldn’t be jailed by his college. (In his op-ed, he equates Cohn’s position with that of “most people who don’t know much about this issue”—an odd position for this newfound champion of rights of the accused to take.) In the event, Polis reiterated his belief that due process wasn’t the appropriate framework to consider the issue in his post-hearing e-mail discussion with Soave. Does he now repudiate that, as well?

Yet Polis’ only defense of the accused students’ due process—that the rules of campus disciplinary matters will keep their names out of the newspaper—is nothing short of extraordinary. The secrecy of campus tribunals provides no protection for the accused student; indeed, the secretary undermines due process. The closed nature of campus tribunals means it’s almost impossible for the media to discover (or the campus community to understand) that universities are branding students rapists after processes in which the accused student lacks meaningful representation from a lawyer, can’t cross-examine his accuser, and often has no right (or ability) to exculpatory or impeaching evidence.

Indeed, if I could recommend only one reform of the campus disciplinary process, it would be making hearings open to the public, to expose the kangaroo courts for what they are. As Louis Brandeis maintained, sunlight is the best disinfectant. It appears as if Congressman Polis, on the other hand, prefers the darkness.

6 thoughts on “Expel 10 If One or Two Are Guilty of Rape?”

  1. I watched the YouTube video of Congressman Polis at this hearing. It’s appalling that this human being is in the US legislature: proposing evidence below preponderance; trivializing the difficulty in transferring to another school; and willing to expel innocent students in a non-precision sweep to expel a guilty one. And the audience applauded this?

    Transferring schools isn’t easy. What if the next closest school that has your major (i.e. engineering) is hundreds of miles away or out-of-state? Will you have to pay out-of-state tuition to finish your degree? What if you’re currently living with your parents because you can’t afford to live on your own? Will you fall behind in finishing your degree because the new school won’t transfer credits from your previous school?

    Perhaps Jared Polis should’ve considered these points before he spoke.

    Jared Polis only issued that op-ed because he uttered words extreme enough to warrant media backlash. I seriously doubt that the op-ed resulted from genuine regret over his outrageous position. Like Senator Gillibrand and Senator McCaskill, he’s exploiting radical feminist fervor in order to sustain his political position.

  2. “Lawmakers in Maryland and California are debating similar legislation. According to California assembly member Das Williams (D), noting expulsions and suspensions on transcripts is a common-sense proposal. “On some campuses, you can rape a woman and that will not go on your permanent record and that’s unacceptable,” he told the Huffington Post’s Tyler Kingkade.”
    https://www.eab.com/daily-briefing/2015/04/22/should-sexual-assault-sanctions-go-on-transcripts

    I am not certain what the present status of the bills mentioned in this article are. IMO the idea that one could be denied a college education (assuming that no other college or university would accept a student who was found guilty) on the basis of preponderance of evidence is very dubious. However, when one factors in the lack of due process or ability to gather evidence, then it is unpalatable.

  3. All Congressman Polis did was to clearly articulate the current OCR position on rape accusations. I’m not sure why you are so upset about it. Lynching men on accusation of rape has a long and honorable tradition in the United States. It’s just becoming more equal opportunity so as to not deprive men of other races/ ethnicities of the pleasure.

    1. “It represents the cool, calculating deliberation of an intelligent people who openly avow that there is an unwritten law that justifies them in putting to ………without complaint under oath, without trial by jury, without opportunity to make defense, without right of appeal…..

      This statute proclaims that for certain crimes or alleged crimes no …. shall be allowed a trial; that no …woman shall be compelled to charge an assault under oath or to submit any such charge to the investigation of a court of law. The result is that many men have been put to ….. whose innocence was afterward established; and today, under the reign of the unwritten law, no …. man, no matter what his reputation, is safe from ……. if a ….woman, no matter what her standing or motive, cares to charge him with an insult or assault.
      It is considered a sufficient excuse and reasonable justification to put a ……under this unwritten law for the frequently repeated charge that these …..horrors are necessary to prevent crimes against women. The sentiment of the country has been appealed to….. and the charge has been made that these …..are in as great danger as if they were surrounded by wild beasts. And the world has accepted this theory without let or hindrance. In many cases there has been open expression that the fate meted out to the victim was only what he deserved. In many other instances there has been a silence that says more forcibly than words can proclaim it that it is right and proper that a human being should be seized by a mob …… upon the unsworn and uncorroborated charge of his accuser. No matter that our laws presume every man innocent until he is proven guilty; ….. no matter that mobs make a farce of the law and mockery of justice. If a ….woman declares herself insulted or assaulted, some ….must pay the penalty. The world looks on and says it is well.

      Quite a number of the one-third alleged cases of assault that have been personally investigated by the writer have shown that there was no foundation in fact for the charges…..”

      From “Lynch Law in America (1900)” by Ida B. Wells.

      plus ça change, plus c’est la même chose

  4. What about the situation where a faculty member is accused of rape? Is he (or she) subject to the same procedure? I never read about such a situation although I’m certain they must occur.

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