Fighting Rape by Treating Due Process as an Alien Concept

I’ve written previously about Katie Baker, the new BuzzFeed reporter on the “rape culture” beat, a correspondent for whom due process appears to be an alien concept. But in an article about Brown, and in her determination to wage war on campus due process, Baker buries the lede. Her story actually shows how anti-due process activism can harm even accusers in sexual assault cases.

Baker’s article is ostensibly a criticism of “safe space” initiatives, programs normally pushed by politically correct bureaucrats and some campus activists as colleges taking a symbolic stand against rapists. Baker quotes a Brown student (identified in her article as the “co-organizer of Nudity in the Upspace”) complaining about the university’s “safe spaces” initiative. According to Baker (in her own words, in what appears to be a straight-news story), the Brown initiative simply “concedes that the rest of the world is a safe space for rapists.”

Much of Baker’s piece on the safe space initiatives is little more than uncritical acceptance of the rhetoric of anti-due process activisms. Here’s Baker on the threat of violent crime on campus: “Around 1 in 5 women are sexually assaulted while in college”–which would mean the typical college campus has a higher rate of violent crime than virtually any area identified by FBI statistics.

And here’s Baker’s take on the campus environment, in an article about Brown (whose past history, it’s worth recalling from the Dresdale case, is not exactly one inclined toward favoritism toward students accused of sexual assault): “Administrations are often warier of inconveniencing alleged rapists than they are quick to protect alleged survivors.”

But the article does have one reported element, dealing with the experience of a student named Lena Sclove, described by Baker as a transfer student who “immersed herself in theater and activism work.”

According to Baker, Sclove was raped violently–and strangled–in August. Then “administrators dissuaded Sclove, now 22, from pressing criminal charges against her assailant, a fellow student and former friend. Instead, they encouraged her to go through the university process, which requires a much lower standard of proof in sexual misconduct hearings.”

This approach is exactly what anti-due process activists have championed: discourage accusers from going to trained law enforcement officials, and instead go to campus tribunals, where it’s much easier to obtain convictions. And in the Sclove case, this is exactly what occurred. The tribunal came back on Sclove’s side, on a preponderance-of-evidence standard in which the accused student lacked the right to counsel. A victory for Baker’s worldview, correct?

Not exactly: Sclove (and through her, Baker) were outraged by the punishment–a one-year suspension. “While I believe someone found guilty of violent rape should not be able to graduate at all, the least Brown can do is keep me safe for the rest of my time as an undergraduate,” Sclove asserted. But, of course, the student accused by Sclove wasn’t “found guilty of violent rape”–that would have required her to have filed criminal charges, which she elected not to do. Nor is it clear from the Baker article exactly what Brown found that the accused student in this case did.

The line of argument here seems to be (as occurred in similar protests recently at Duke) that even though universities determine “guilt” through minimal due process and the lowest possible evidentiary standards, the punishment should be maximal. But isn’t the appropriate reading of the Sclove affair just the opposite–that universities should be encouraging crime victims to report their crimes to trained law enforcement officers, and work to get those who commit “violent rape” off the streets? That, however, doesn’t appear to be an option that Baker desires.

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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