A Nightmare Proposal

Sunday’s Washington Post featured a lengthy op-ed by Jaclyn Friedman, a self-described “writer, performer and activist” who is “a dynamic and powerful performer who performs and agitates with Big Moves, a national size-diverse performance troupe.” The column advanced a startling thesis: that “University campuses could easily become labs that innovate effective ways to prevent and prosecute [emphasis added] rape.”
Campus judicial proceedings almost always deny to students accused of sexual assault what most people would consider basic procedural protections: legal representation; access to a university equivalent of open-file discovery; or the opportunity to confront his or her accuser. And that’s just at a typical university. Consider more extreme versions: Duke opened the 2009-2010 academic year by revising its internal procedures to give all sexual misconduct accusers rights denied to the accused student. Each of these special rights tilts the process in the accuser’s favor: to be treated with “sensitivity,” to make opening and closing statements before a hearing panel, and to receive all written information, other than material protected by FERPA, regarding their case.
Given this procedural background, only someone eager to create a system transparently tilted toward convictions would envision universities as laboratories to “prosecute rape.” It seems, alas, that Friedman falls into this category. She claims that, as a Wesleyan undergraduate, she was sexually assaulted, but that she “never considered going to the police,” since no evidence existed to back up her charge. So instead she filed charges “through the on-campus judicial system,” after which, she writes, her alleged assailant “agreed to plead no contest” and was suspended from school for a year. This outcome proved insufficient when her alleged assailant’s suspension was reduced to one semester; Friedman informed Post readers that her final months on campus were “a haze of fear, hiding and post-traumatic stress.”


Drawing on her own experience, what “advocates on these issues tell me,” and claims by the Center for Public Integrity that the average college campus has a higher rate of violent crime than the city of Detroit, Friedman complains that university judicial procedures are insufficiently geared toward ensuring justice for the accuser in sexual assault cases. She wildly maintains that the typical college campus isn’t a paragon of political correctness but instead an “environment of silence, rape apology and victim-blame.” Naturally, she doesn’t identify even one specific university for which such a description could apply.
The obvious retort here is that the police, not student life officials, are the appropriate people to investigate violent crime. Not to Friedman, who asserts that involving the criminal justice system is “hardly ever a better option” for sexual assault accusers in college. Police, or prosecutors other than Mike Nifong, too often look for “other witnesses” or the accuser having “physical injuries” before proceeding with a case, even though the law often holds that “no corroborating evidence is needed to convict an accused rapist if the accuser is found to be credible.” And, of course, in a criminal proceeding the accused has a right to legal representation and to confront his accuser.
So Friedman urges “advocates” to champion reconfiguring policies at college campuses. Citing a 1992 Supreme Court decision, she suggests that colleges and universities are legally obligated to set up parallel criminal justice processes to handle sexual assault cases could obtain the backing of federal courts. The case, which Friedman doesn’t identify, is apparently Franklin v. Gwinnett County Public Schools, which involved a female student who had been subjected to continual sexual harassment and abuse by a public high school teacher, and who then subsequently sued under Title IX. Why such a ruling would mandate colleges to investigate allegations of crimes that the school’s female students don’t want to bring to police is unclear.
Friedman maintains that her dual-track sexual assault system wouldn’t be “even that complicated to implement.” Colleges and universities could start by requiring “any party to a sexual interaction to make sure their partner is actively enthusiastic [emphasis added] about what’s happening—not just not objecting.” Friedman doesn’t explain what “actively enthusiastic” consent entails, or how it would be recorded (through videotape? a signed, notarized agreement?). I’m not aware of any jurisdiction in the country that employs an “actively enthusiastic” consent standard in sexual assault cases.
Having demanded such a standard, Friedman urges universities to “create judicial boards equipped to seriously investigate [emphasis added] rape accusations.” To undertake a serious investigation of such a crime, wouldn’t universities need their own police forces, forensic labs, and subpoena power? Or, as Friedman strongly implies but never says outright, could universities merely create tribunals staffed by campus ideologues inclined to find “credible” all sexual assault accusers?
It’s not hard to determine which option Friedman prefers. I e-mailed her to ask what rights she would deem acceptable for an accused student in her campus tribunal scheme, but she did not reply.

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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