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Tuesday, June 7, 2011

Dumbing Down the Charge of Rape


On April 4 the U.S. Department of Education’s Office for Civil Rights (OCR) instructed every college and university that accepts federal funds directly or through student loans – that is, virtually every institution of higher learning in the country –  to use the “preponderance of the evidence” standard when adjudicating on-campus accusations of sexual harassment and sexual assault rather than the “beyond a reasonable doubt” standard used in criminal courts.

College administrators have long been criticized for not respecting the due-process rights of accused students during such adjudications. Now the OCR wants administrators to go even further. The stakes are high for an accused, who is typically male. His academic career, reputation, and future job prospects can be shattered by a guilty verdict. But more than this, it is common for the police to become involved during or after an adjudication. Thus the accused risks criminal charges for which the college process can constitute supporting evidence.

Under OCR policy, students accused of serious crimes will be judged by the civil court standard of proof according to which a plaintiff’s evidence need only “tip the scales” rather than the higher criminal court standard according to which a defendant must be proved guilty beyond a reasonable doubt. In other words, a student accused of sexual assault will be judged by the same lawsuit yardstick used to assess whether he was responsible for a fender bender or back rent.

Protecting Hypothetical Victims

A common argument for lowering the standard of proof is that it’s necessary to encourage future victims to come forward. In other words, when the due-process rights of real persons are pitted against hypothetical future victims, the hypothetical victims win.

Mainstream feminism deserves much of the credit … or infamy for this change. In the 1990s mainstream feminist groups  began to actively promote use of civil courts in sexual assault cases. The Listening Ear — the oldest all-volunteer crisis center in America — distributes the pamphlet “Pressing Charges in Civil Court” (pdf), which advises, “The civil court is an alternative to criminal charges.” It is a way to impose penalties on an accused’s pocketbook and reputation even if the accusation is not supportable in criminal court.  This is now an accepted practice.

Moreover, because criminal and civil courts are based on distinct paradigms of law and address different matters, an accuser can pursue both approaches without tripping over double jeopardy.

Different Standards

Criminal law deals with offenses deemed to be committed against “the people” and justifying punishment by imprisonment, at least in more serious cases. Thus due process and high standards of evidence are required.

Civil law deals with wrong against individuals, including breaches of contract and torts. Civil penalties are generally financial and are intended as restitution. Thus a far lower standard of proof and due process exists.

“Pressing Charges in Civil Court” notes the lower standard as a particular advantage in rape cases, which often amount to “the defendant’s word against the plaintiff’s … with no other witnesses.” Another advantage: “[A] civil case does not require a unanimous [jury]  decision in favor of the plaintiff”; civil jury trials only require only nine of 12 jurors to agree. Moreover, “civil court allows you to sue any third party … for contributing to the rape.” For example, an employer who did take a prior complaint seriously could be liable. The purpose here is not merely to deepen the pockets of defendants but also to “force” third parties “to take sexual assault more seriously.”

The pamphlet cites “successful” civil court cases dating from the mid-1990s — the time when the practice of lowering standards and “believing the victim” began to gain traction, especially academia.

The trend will not change easily. For one thing, the accuser is not the only beneficiary. Another beneficiary is the adjudicating authority itself. College bodies that sit in judgment of students accused of sexual assault have been officially freed from the restraints of hard evidence. Authorities tend to jealously guard their own power.

College has just become more dangerous for males.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.