The Times, OCR and Student Rape Trials

Nearly two years after the Office of Civil Rights ordered
all universities to lower the procedural threshold through which accused
students can be found guilty of sexual assault, the New York Times turned its attention to the issue–via a five-person
“Room for Debate” item.

Superficially, the segment seemed balanced: two essays in
favor the policy, two opposed, and one neutral. And one of the opposition
essays was very strong indeed–FIRE’s Robert Shibley noted, “If you only read one non-FIRE article on campus due
process this year, this should be it.”
The Student Press Law Center’s
Adam Goldstein opened
with a jarring, but wholly appropriate, pop quiz: “What major felony should be
investigated and adjudicated by amateurs, in secret, without subpoena powers, a
right to representation, or any kind of due process controls?”

Of course, only in colleges and universities (or among
the figures that ran Obama’s first-term OCR) could answering “rape” to
Goldstein’s question be viewed as prudent. In addition to defending basic
principles of due process, the Goldstein essay noted the unintentional folly of
the OCR system: that the best-case scenario under the OCR standards is a rapist
walking free, sometimes (after a suspension) on campus, even though many on
campus might not even know that there’s a student found guilty of rape in their
midst.

For the second OCR “critic,” however, the Times incredibly chose TV commentator, Poynter
guest lecturer
, and adjunct law professor Wendy Murphy. Yes–the same Wendy
Murphy who said
that she never encountered a woman who made a false claim of rape; who mused on
national TV that one of the Duke lacrosse players might have been sexually
abused as a child; and who made nearly two dozen outright errors of fact in her
lacrosse case commentary. (That record, of course, didn’t prevent the Times from viewing her as sufficiently
credible to turn over editorial space to her.) Unsurprisingly, Murphy’s Times essay didn’t exactly mount a
ringing defense of due process: instead, she suggested
that the OCR-mandated changes won’t do enough to ensure that “perpetrators are held accountable by campus officials.”
Murphy instead called for all campus claims of rape to be reported to police.

As for the Times
other essayists: their pattern seems to be to view due process as not the best
way to pursue the truth but as an inconvenience or even obstacle on the road to
gender-based justice.

Amherst student Dana Bolger praises
the OCR approach on the grounds that “the
criminal justice process revictimizes rape survivors
,” while “the college disciplinary system offers survivors a
shorter process and quicker remedy.” (Bolger seems to presume, although she
doesn’t come out and say so, that anyone who reports a rape is a “survivor.”)
Self-described
“activist” Elischia Flood defends
OCR, and observes that “a good system can
preserve the dignity of the survivor and the rights of the accused by making
the reporting process clear, in writing.” In other words: a clear bureaucratic
chain-of-command somehow provides sufficient protection for the “rights of the
accused.” And Michelle Caiola of Legal
Momentum
, formerly the
NOW Legal Defense Fund, presents
herself
as neutral on the question of whether colleges or police should
handle on-campus rape allegations, but worries that college disciplinary panels
(the bodies, again, that can convict at a 50.1 percent certainty, often in
hearings where the accused lacks a right to counsel or the right to
cross-examine his accuser) too often are not “educated about the realities of
sexual assault,” because “they may believe common rape myths.” Like Murphy, the
NOW attorney appears to believe that campus disciplinary tribunals aren’t tough
enough on the accused.

The Times
has an editorial reputation for favoring civil liberties. Apart from the
Goldstein essay, even a minimal respect for civil liberties was absent in the
“Room for Debate.”

KC Johnson

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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