Blue State Justice Rarer than Red

In a polarized country, it probably should come as little surprise that campus due process also is becoming polarized over alleged sexual violations. While the Office for Civil Rights seeks to eviscerate the rights of accused students nationwide, accused students increasingly have more rights in red states than in blue states—largely because blue state governments are eagerly taking those rights away.

California was first, with its notorious “affirmative consent” law. When asked how an innocent male student could defend himself under the standard of the law that she co-sponsored, Assemblywoman Bonnie Lowenthal replied, “Your guess is as good as mine.” New York and Connecticut appear poised to enact affirmative consent by statute this year; the sponsor of the bill in Connecticut’s state Senate was clear her goal would be to change the burden of proof to the accused student. “[T]he burden will be on the assailant,” Mae Flexer observed, “to explain why he or she thinks they got a yes.”

On Thursday, Virginia Governor and Democratic candidate for president Terry McAuliffe issued a Task Force report on campus sexual assault organized by the state’s Democratic attorney general, Mark Herring. This 107-page report was perhaps most notable for what it did not include. It did not once mention the phrase “false accusations.” It appears being framed does not concern Virginia policymakers. Perhaps for that reason, this report, which discussed how Virginia colleges need to respond to sexual assault allegations didn’t mention the highest-profile rape allegation on a Virginia campus in recent years. Rolling Stone, Sabrina Rubin Erdely, or the false accuser “Jackie” were, it seems, not relevant to a discussion about campus rape claims in Virginia.

Most of the report addresses issues before a final adjudication occurs—that is, before the college or university can know whether or not a rape occurred. The report uses the word “accuser” twice and “alleged” twice. “Victim,” on the other hand, is mentioned 178 times. It certainly appears as if the Task Force members presume that an accuser is automatically a “victim.”

Who were these Task Force members? The governor and attorney general didn’t ask a single defense attorney or representative of a civil liberties group, such as FIRE. The list includes a number of law enforcement figures, along with gender-related administrators and a single student, Chelsea Godfrey, a self-described sexual assault “survivor.” A second recent graduate, UVA’s Emily Renda, was also involved in subcommittee deliberations of the Task Force, but she wasn’t mentioned in the final product. Perhaps someone thought better of highlighting the role played by the person who provided “Jackie” to Rolling Stone, and vouched for the false accuser’s credibility.

The Task Force enthusiastically supported more campus bureaucracy to deal with sexual assault allegations. Virginia colleges now will be required to create a “sexual assault response team,” or SART. This group will include the Title IX coordinator, various campus law enforcement officials, “on and off-campus victim advocates,” a SANE nurse, and student affairs administrators. SART will be part of only a more complicated bureaucratic flow chart. As funds decrease for new faculty hires, at least Virginia professors will know where the money is going. These new bureaucrats, moreover, will be trained by “victims” and “victim advocates.”

Finally, the document does contain a token mention of protecting the due process rights of the accused. But none of the Task Force’s 21 recommendations explains what a baseline due process situation would entail. Instead, the Task Force seems most interested in noting that schools aren’t required to provide the sort of protections available in the criminal justice process.

I suspect that Virginia will provide a template for other blue states.

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.

4 thoughts on “Blue State Justice Rarer than Red

  1. Bonnie Lowenthal: “Your guess is as good as mine.”

    This flippant reply is disturbing, as it suggests indifference towards accused students.

    If she doesn’t understand the bill that she co-authored, then how is an attorney or a student supposed to understand it?

  2. Great coverage of the growing trend in state legislation. At some point I hope that more lawyers wake up to the contradiction these laws represent: that a discrete class of the state’s citizens –students, and usually male students– are being denied the equal protection of the laws, indeed of the entire apparatus of criminal justice. As a matter of Constitutional law it cannot stand, and as a political and economic matter –driving students and their tuition out of the state– it will be disastrous.

  3. Just say, “No, I didn’t rape her (him), she (he) raped me, I was just too broken up to talk about it, but now I must.”

    What happens when a boy and a girl both say the other raped them?

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