Honestly, even for a person who’s been hardened by decades of campus ideological and legal battles, it’s hard to believe how thoroughly unhinged, how intellectually bankrupt is the argument against protecting due process on campus. Yesterday, Education Secretary Betsy DeVos announced that the Trump administration would shortly begin a regulatory rulemaking process designed to protect college students from sexual assault while also protecting the fundamental constitutional rights of the accused.
More precisely, DeVos signaled her intention to withdraw the Obama administration’s 2011 “Dear Colleague” letter that unilaterally and lawlessly required universities to adjudicate sexual-assault claims under a preponderance-of-the-evidence standard (the accused is responsible if there’s a 50.1 percent probability he committed the crime) but without protecting due process. Obama’s policy resulted in a kangaroo-court system where accused students often don’t have access to counsel, the ability to effectively cross-examine their accuser (indeed, the Obama admin specifically urged that accused students not be permitted to cross-examine accusers), or even access to all the evidence in the case.
But what is this terrible proposal? While the details are yet to be revealed, from her remarks it’s clear that she wants to protect students from sexual assault and to protect students from kangaroo courts. In other words, she may well require schools to protect students’ ability to employ counsel, cross-examine witnesses, see the evidence against them, and try their cases before a truly impartial tribunal. This is basic stuff. It’s the essence of due process, and it’s unthinkable for any person facing such serious, state-mandated charges to face justice without these basic protections.
So, what’s the objection? Why do some activists seemingly come unglued at the mere mention of “due process”?
But that story is wrong — terribly wrong — and it’s facilitating injustice on a national scale.
First, the one-in-five statistic is based on seriously flawed studies that, among other things, improperly define sexual assault or base their findings on a low-response survey of two colleges. In fact, the authors of arguably the most influential source for the one-in-five statistic have explicitly said that it was “inappropriate” to use their survey as a “baseline” for campus rape.
Their story is wrong — terribly wrong — and it’s facilitating injustice on a national scale.
In 2014, the Department of Justice’s Bureau of Justice Statistics released its own, more rigorous survey, and its results were far, far different. It found that the rate of rape and sexual assault was “higher for nonstudents than for students.” The annual rate of sexual assault for young women enrolled in college was 6.1 per 1,000, or less than 1 percent. Too high, but far from the extraordinary and shocking crisis of one-in-five, even when tallied over multiple years.
But what about the notion that “women don’t lie about rape,” often memorialized in the #BelieveAllWomen hashtag — popularized by none other than Hillary Clinton herself? That’s based on flawed research as well. Here’s Emily Yoffe, writing yesterday in The Atlantic:
As Michelle J. Anderson, the president of Brooklyn College and a scholar of rape law, acknowledged in a 2004 paper in the Boston University Law Review, “There is no good empirical data on false rape complaints either historically or currently.” The data have not improved since that time. In a 2015 working paper, Lieutenant Colonel Reggie Yager, a U.S. Air Force judge advocate who has defended men accused of sexual assault, took a comprehensive look at the research on the incidence of false rape reports, and concluded that the studies confirming the overwhelming veracity of accusers are methodologically unsound.
For example, in one widely cited study, the author claimed that “over 90 percent” of rape claims weren’t fabrications. Yet in that author’s own research, “about 45 percent of the cases [he] reviewed did not proceed because there was insufficient evidence, or the complainant withdrew from the process or couldn’t identify the perpetrator, or the allegation did not rise to the level of a sexual assault.” As Yoffe says, “we simply don’t know” how rare false claims are.
Finally, the junk research doesn’t stop with surveys. Consider the wide popularity of a theory called “tonic immobility” that informs how colleges weigh evidence in sexual-assault tribunals. Yoffe describes the theory as follows:
People facing sexual assault become terrified, triggering a potent cascade of neurotransmitters and stress hormones. This chemical flood impairs the prefrontal cortex of the brain, impeding victims’ capacity for rational thought, and interferes with their memory. They may have significant trouble recalling their assault or describing it coherently or chronologically. The fear of imminent death may further elicit an extended catatonic state known as “tonic immobility,” rendering them powerless to speak or move — they feel “frozen.”
As a result, those adjudicating sexual-assault allegations are told, the absence of verbal or physical resistance, the inability to recall crucial parts of an alleged assault, a changing story — none of these factors should raise questions or doubt about a claim. Indeed, all of these behaviors can be considered evidence that an assault occurred.
Catch that? It means that the absence of evidence is itself evidence of a crime. In normal cases, if an alleged victim is “unreliable and incoherent,” that indicates problems with their claims. Not so in sexual-assault cases, say some advocates. When it comes to sex, unreliability actually bolsters the case.
If you think that makes no sense, then you’re not alone. As Yoffe lays out in detail, the evidence of how trauma impacts human memory actually contradicts the “tonic immobility” theory. She quotes Harvard psychology professor Richard McNally, who says, “Extreme stress enhances memory for the central aspects of an overwhelming emotional experience.”
There is no excuse for government-mandated kangaroo courts in any part of American life.
All of these facts — combined with an extraordinary number of egregious stories of campus injustice — have led civil libertarians on the left and the right to raise the alarm. Indeed, so many progressives have issued their own statements or expressed their own concerns about an overhyped campus-rape crisis that it’s simply wrong to say that criticism of Obama-era Title IX jurisprudence is simply “Republican,” “conservative,” or — even worse — “Trumpist.”
Sadly, however, for the true campus ideologue none of these critiques matter, especially if they come from the dreaded (and hated) white male. The battle over due process and sexual assault on campus has passed into the realm of identity politics — where narrative trumps all, and your only role in life is to be the right kind of “ally” to the allegedly oppressed.
Yet due process is a cornerstone civilizational value. Justice demands that agents of the state actually prove their case through a fair and impartial proceeding before punishing any person. We apply this standard when police catch a murderer in the act of taking a life. We apply it when the evidence is overwhelming and an entire community thirsts for vengeance. We apply it no matter the odds of a conviction, and — critically — we apply it no matter the ideology or identity of the parties.
Our campuses are not exempt from the Constitution. There is no excuse for government-mandated kangaroo courts in any part of American life, especially in America’s institutions of higher learning. It’s time to end a false frenzy, restore constitutional sanity, and remember a key truth: The defense of due process is the defense of liberty. No man or woman is at the mercy of the state.
— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.