The Chances of Holding Your Son Responsible for a Rape He Didn’t Commit Have Just Skyrocketed

by pierceharlan on April 13, 2011

You will excuse me if I dispense with the carefully laid out introduction and the painstakingly crafted prose, but I write about a matter of grave importance, and there isn’t time for either.  False Rape Society has written in excess of 2,000 posts, and this may be the single most important topic we’ve ever reported on.

In an age when young men are a distinct minority on our nation’s college campuses, the Obama administration has just declared open season on the dwindling relatively few who actually bother to attend college.  The United States Department of Education’s Office for Civil Rights issued a letter dated April 4, 2011 to colleges setting forth unequivocal guidelines for handling claims of sexual harassment, including claims of sexual assault, in disciplinary proceedings brought against students. Of course, the overwhelming majority of sex claims, especially serious claims such as sexual assault, are lodged against male students.  According to the letter, from now on, to be in compliance with Title IX, all disciplinary proceedings involving claims of sexual harassment (which includes claims of rape and sexual assault) ”must use a preponderance of the evidence standard,” as opposed to the “clear and convincing evidence” standard (evidence of a high probability that the offense occurred) currently used by many schools. Vice President Joe Biden, chief architect of VAWA, unveiled the new procedures earlier this month.

What this means is that a male accused of sexual assault may be expelled from college, and his freedom to go on to graduate school and obtain decent employment may be curtailed and even destroyed, even if there is only a very slight probability that he committed the assault.  The school can have a reasonable doubt about whether he did it, and the evidence need not even show that there is a strong likelihood of it.  If the disciplinary hearing board finds that the complainant’s story of the alleged incident is more credible than the accused’s, even by a 50.0001 to 49.9999 percent margin, he packs his bags and is banned from the school forever. Forget law school, forget medical school, forget graduate school of any kind. And good luck explaining that to prospective employers. His life has been effectively destroyed.

Former Education Department lawyer Hans Bader posits a well-reasoned argument why the Education Department is wrong as a matter of law: “The Education Department’s position is based on a misunderstanding of who is subject to Title IX, the federal law banning schools from committing sex discrimination. Title IX’s requirements apply to schools, not individual students.” Read the entire piece here.

While it is a terrible thing for a young woman to see her rapist escape without punishment, it is an even more terrible thing to hold a young man responsible for a rape he didn’t commit. The chances of the school making a mistake and doing exactly that — holding a young man responsible for a rape he didn’t commit — have just skyrocketed with the Education Department’s April 4 directive. 

A student’s interest in obtaining a college degree, with all it entails, is of such weight and gravity that colleges should justify any decision to deprive a student of that interest with proof more substantial than a mere preponderance of the evidence.  Even for legal actions seeking only money damages, some states impose the enhanced “clear and convincing evidence” standard to prove claims where fabrications are easiest to make (e.g.,claims of oral contracts, fraud, and promissory estoppel).  That standard is all the more appropriate in “he said/she said” claims of sexual assault, where lies are easy to tell, too frequently made, and incredibly destructive of the men about whom they are told.

Schools are already lowering their standards of proof in response to the April 4 directive. Yale announced Tuesday that it is lowering its standard to “preponderance of the evidence.” Stanford has also just done it. (Associated Students of Stanford University President Angelina Cardona applauded the move, noting: “Lowering of the standard of proof is absolutely crucial to the women’s community.”)  Brandeis, too, will shift its standard of proof for internal hearings on sexual assault to a lesser burden, a university official said, to comply with the directive. Harvard Law School and U.Va. are feeling the heat as well: both are under investigation because they require sexual assault victims to prove their allegations by “clear and convincing evidence.” One or more schools are lowering the standard in the middle of an ongoing hearing.

Stanford Dean of Student Life Christine Griffith doesn’t seem to have any concern about the school getting it wrong and punishing a young man undeservedly. “For people who might be concerned about the change in the burden, the standard of proof, then [it is] probably an opportunity for people to be saying to themselves, ‘I need to be really educated about these issues because I don’t want to find myself in this circumstance,’” she said.

Our sons have found themselves in the cross-hairs of another politically motivated effort to appease a vocal interest group that has declared them enemy number one.  The Education Department’s directive was premised on research finding that one in five college women are victims of sexual assault or attempted sexual assault.  The survey that concocted that outrageous number utilized self-selecting respondents, and the problems with such methodology are many and insurmountable.  See here.  Heather MacDonald summed it up succinctly: the one-in-five stat is ”bogus.”  This is not even to mention that the the one-in-five figure yields numbers wildly inconsistent with even the  inflated 90 percent under-reporting standard sometimes cited by the sexual grievance industry to justify its existence. See here.  The fact is, if that one-in-five figure were accurate, our college campuses would be more dangerous places than even the Tadmor Prison in Syria, where the bloodthirsty guards butcher inmates with axes for the fun of it. 

If you need further proof of the Department of Education’s blatant bias against presumptively innocent males, the April 4 letter also says that under Title IX, when there is an accusation of sexual assault, the school must take appropriate interim measures before the final outcome of the investigation. These measures include separating the alleged perpetrator and the complainant. All well and good — but that’s not all it says. It goes on to state the following: “When taking steps to separate the complainant and the alleged perpetrator, a school should minimize the burden on the complainant, and thus should not, as a matter of course, remove complainants from classes or housing while allowing alleged perpetrators to remain.”

The import is clear. In “he said/she said” disputes about sexual assault, he is presumed the guilty party from the moment of her accusation.  At least the Department of Education is up front with its misandry.

It is not hyperbole to assert that under this new Department of Education directive, an accuser and a school are free to destroy the life of a young man even if there is only a very slight probability that he did anything wrong.  And I ask, why is there not widespread outrage about this?

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