Have Colleges Gone Too Far In Responding To Allegations Of Sexual Assault?
In the past several years, there has been a wave of attention to the problem of college sexual assaults, with colleges adjudicating more cases and the federal government threatening to withhold funding to schools that do not beef up their anti-violence efforts.
Even President Obama spoke out last September when the White House launched, “It’s On Us,” a campaign aimed at combating campus sexual assault.
“We are going to organize campus by campus, city by city, state by state; this entire country is going to make sure that we understand what this is about and that we’re going to put a stop to it,” Obama said.
To one prominent Boston attorney, going campus by campus and city by city sounds a lot like a witch hunt. In a recent op-ed in The Boston Globe, criminal defense attorney and civil liberties lawyer Harvey Silverglate calls the “campus sexual assault panic one of the many runaway social epidemics in our nation’s history.” Basically, in Silverglate’s view, it’s the new Red Scare.
It is a provocative assertion that has drawn powerful reaction from victims’ advocates.
Harvey Silverglate, defense attorney and author of “The Shadow University: The Betrayal of Liberty on America’s Campuses.” He tweets @HASilverglate.
On what about college sexual assault likens it to McCarthyism, in Silverglate’s view:
Harvey Silverglate: “I define a panic as a situation where there is an atmosphere that considers everybody accused to be guilty, and then to be worthy of draconian punishment. And that is where we are right now in the campus sexual assault arena. There is no distinction made between an accusation and a conviction. I know many cases where I am convinced — and the evidence really proves it — that a young man is not guilty of sexual assault. But the campuses — so worried about incurring the wrath of the federal government — they are finding them guilty and throwing them out of school. Where there is no distinction made between guilt and innocence, I say there’s something really wrong.”
On the statistic that one in in five female college students are sexually assaulted:
HS: “That number is highly controversial, in part because of how it is you define a sexual assault. And the statistics in this range way across the horizon. But I would say that there’s really a problem — if one out of 20 were raped on a campus, it’s a problem. The one out of five is just a result of the panic, but I’m prepared to concede that if any number of women on campus are raped, we’ve got a problem. However, the problem can only be cured by rational procedures and fair procedures where the guilty are punished and not the innocent.”
On the role of drugs and alcohol on college campuses:
HS: “As happens with alarming frequency, going from inadequate response and discussion to overcompensation is not the answer, and getting a large number of innocent men thrown out of college is not the solution to the campus sexual assault problem. I can tell you that one of the reasons this has happened is because, on colleges today, there is a toxic mixture of alcohol and drugs and the alcohol and drugs are responsible for a [large amount of these cases.] About a third of my law practices is involved with campus issues, and the combination of alcohol and drugs is responsible for a lot of the sex that goes on where, afterwards, there are regrets. And so the statistics are very hard to credit and they’re very inaccurate because of this intervening problem of drugs and alcohol.”
On Harvey Silverglate’s comparison to the House Un-American Activities Committee:
Colby Bruno: “I think that is outrageous in the worst sense of things. This is not McCarthyism, this is a serious epidemic on college campuses where women and men are being hurt by other students. This is not an overcompensation, this is not plucking innocent people out of oblivion, these are legitimate claims that someone has harmed someone else and these college tribunals do this type of adjudication all the time. Their job is not to adjudicate whether or not someone is ‘guilty or ‘innocent,’ we’re not in the criminal system. We’re in a college disciplinary process where the rules of equity and parity apply, and that’s Title IX.”
On the college tribunals:
CB: “You can’t have those standards in these college tribunals because we have equity and parity in these college tribunals. The criminal justice system is anything but equitable and anything but — [it] doesn’t have any parity for a victim. A victim isn’t permitted in her own trial, a victim is merely a witness to the Commonwealth’s case, a victim has privacy that gets obliterated…Plus, the perpetrator of the assault doesn’t even have to testify. How is that equality? There’s no parity there. So you go to these tribunals and you say, ‘Title IX requires us to be equitable.’ And we can be equitable because get training. The federal government has checks and balances, which we don’t have in the criminal system. There’s no checks and balances for our DAs.”
On the role of due process:
CK: “Due process has no place in these private schools. We’re talking about Title IX, we’re not talking about being a criminal defense attorney in a criminal context. We’re talking about a civil justice system that has checks and balances, that requires you to remain in compliance with Title IX and Title IX requires equity. This has nothing to do with due process.”
- “The latest national hysteria over campus sexual assault combines aspects of its predecessors: the salacious outrage that characterized the daycare sex panic and the dubious federal stamp of approval that made McCarthyism’s excesses so dangerous.”
- “There is no question that we have to confront sexual misconduct on campus and elsewhere as aggressively and comprehensively as we can. There is no question that we have to lift the protection offered the star athlete, confront the administrators more concerned with the man’s future than with a woman’s trauma, challenge the atmosphere of impunity at fraternity houses and social clubs. And we can do so without turning every disciplinary proceeding into a full-blown trial, without imposing the maximum due process protections, on the one hand, or an administrative Star Chamber, on the other.”
- “(A)nother reason many campuses say they have to be adjudicating these cases because they’re the only ones who can make those kinds of accommodations for an alleged victim to make those students feel safe.”
- “The woman at Hobart and William Smith is no exception. With no advocate to speak up for her at the disciplinary hearing, panelists interrupted her answers, at times misrepresented evidence and asked about a campus-police report she had not seen. The hearing proceeded before her rape-kit results were known, and the medical records indicating trauma were not shown to two of the three panel members.”
- “After years of criticism for being too lax on campus sexual assault, some colleges and universities are coming under fire from students who say the current crackdown on perpetrators has gone too far.”
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