Over the past several months, Claire McCaskill (D-Missouri) has emerged as the Senate’s most ferocious opponent of campus due process. One of the upper chamber’s unequivocal defenders of the Office for Civil Rights, McCaskill also attempted to browbeat the American Council of Education for representing its members, and convened several town hall sessions on campus sexual assault to which she didn’t invite defense attorneys or civil libertarians.
So it should come as little surprise that McCaskill’s report on campus sexual assault not only backs the OCR’s efforts, but also contains recommendations that go beyond even the OCR’s due process-unfriendly approach. Given McCaskill’s status as a former prosecutor, her disdain for basic fairness has to raise questions about how she handled cases in her previous career.
McCaskill’s 12-page report (with 100-plus pages of survey results) rests on the curious premise that also plagued the White House Task Force document—uncritically accepting that the colleges face an unprecedented wave of violent crime (one in five women will be sexually assaulted) while simultaneously not recommending any increased law enforcement presence on the nation’s campuses. Instead, McCaskill recommends increased training for campus security officials. She offers no explanation for this approach, instead making her point implicitly: it seems that because “many sexual assault survivors prefer to avoid reporting to police at all,” the senator isn’t interested in changing federal law to ensure that crimes are investigated by the people who are actually trained to investigate them. Instead, she wants an expensive (paid for, it seems, by colleges) training effort to produce security forces that would duplicate the efforts of local police.
The report’s most troubling conclusions address the campus disciplinary process. Incredibly, McCaskill claims that too many colleges have “biased or harmful sexual assault adjudication procedures”—biased, that is, against the accuser. How could she possibly reach such a conclusion?
No Jury of a Student’s Peers
According to the Missouri senator, too many schools (less than half of the total) allow students to participate in the disciplinary process. McCaskill raised two objections to such a process. First: “student participation can present privacy concerns for survivors who can be forced to divulge intimate and painful details of their experiences to peers that they live and study among.” Second: the policy creates “conflicts of interest, as students may know the survivor and/or the alleged perpetrator.”
These are odd objections. Any university disciplinary policy should have a manner of dealing with conflicts of interest, which after all can occur with faculty or administrator panelists just as easily as with student panelists. And McCaskill provides no substantiation for her assertion that “privacy concerns” would be any greater when an accusers are “forced to divulge intimate and painful details of their experiences” to a resident advisor or other administrator with whom “they live” or a professor from a department where they study.
Given the absurdity of McCaskill’s rationalizations for excluding student disciplinary panelists, what could be her actual motivation for this recommendation? A clue can be seen in the language her report uses. Discussing the status of a disciplinary panel—which occurs, keep in mind, before any adjudication—McCaskill describes the two parties: “the survivor” and the “alleged perpetrator.” But at the stage when the sexual assault is “alleged,” before any adjudication, how is there a “survivor”? Could it be that the Missouri senator, a former prosecutor, believes that all those who file allegations are automatically survivors? What happens in the event of a false allegation?
McCaskill’s recommendation, alas, appears designed to guarantee that these “survivors” receive vindication, one way or the other. Administrators and professors are subject to pro-conviction pressures that student disciplinary panelists can avoid. Administrators, who serve at the will of the school, could easily believe (or be guided to believe) that presuming guilt would serve the interests of their school, lest it receive an OCR investigation for finding too many students not culpable. Faculty panelists are drawn from a faculty disproportionately one-sided on gender-related questions. Assistant professors from humanities and some social sciences departments are particularly vulnerable: could a not-guilty vote be used against them (surreptitiously, of course) in a subsequent tenure vote?
McCaskill’s second procedure-related objection regards the need to train members of the disciplinary panels. “Institutions,” she writes, “are also failing to provide adequate training for the individuals who adjudicate sexual assault claims. This is particularly problematic because of pervasive and culturally ingrained misunderstandings of what constitutes sexual assault, such as the prevalence of acquaintance rape versus stranger rape, what constitutes consent, the type of conduct that constitutes rape, and how trauma can impact the survivor’s demeanor and memory.”
This is a remarkable, and troubling, passage. At a practical level, we’ve seen how this type of “training” works, from the few institutions where training material has leaked out. (To the best of my knowledge, no college or university has voluntarily publicized its sexual assault training materials.) At Stanford, however, panelists are told that an accused student who is “acting persuasive and logical” is a sign of guilt. At Duke, as the McLeod lawsuit revealed, the training items likewise seemed designed to make the panelists inclined to find guilt.
At a theoretical level, in the criminal process jurors in sexual assault cases receive no “training”—since doing so would likely be deemed as unfair to the accused. McCaskill provides no explanation as to why special training is necessary for sexual assault in the college disciplinary process when it’s not used in the criminal process. And the subjects on which McCaskill demands “training” all seem to make it more likely that accused students would be found guilty.
Lest there be any doubt, McCaskill spends several paragraphs all but expressing contempt for the idea of fairness for accused students. As the ACE general counsel noted, McCaskill’s document “treats the rights of the accused as an afterthought, which colleges and universities clearly cannot do.”
In the real world, campus tribunals are wildly unfair to the accused, for reasons virtually anyone who follows the issue knows (most accused students can’t use lawyers; often they can’t cross-examine the accuser; almost always they have limited discovery rights; they can be branded a rapist on a preponderance-of-evidence threshold).
McCaskill fantastically dismisses this record; in her version of reality, and “contrary to these concerns, it appears that some institutions actually afford certain due process elements more frequently to alleged perpetrators than they do to survivors.” (Note that, again, her language implies that an accuser is automatically a “survivor.”) On what does she base this highly counterintuitive claim?
The senator cites three elements: that 15% of schools have resisted OCR’s reinterpretation of Title IX to retain a “clear and convincing” standard; that an insufficient number of schools utilize group punishment (“sanctions” against fraternities or athletic teams, apparently if an accused student is a member); and “82% of schools allow alleged perpetrators to challenge hearing members regarding impartiality or conflicts of interest, while only 78% provide the same right to survivors.” (Note that, for a third time, her language implies that an accuser is automatically a “survivor.”)
At what point will members of Congress start resisting the witch hunt?