Saturday, December 1, 2012

College administrator's Twilight Zone moment: we aren't determining whether there was a rape when we expel a young man for rape

Noel English, equity office manager at the University of Missouri, has defended the Department of Education's April 2011 "Dear Colleague" mandate to lower the standard of proof in college sex cases to a mere preponderance of the evidence by uttering something so bizarre, so other-worldly, that it ranks among the most preposterous statements we've seen since we started speaking out on behalf of the wrongly accused, and that is saying a hell of a lot.

To appreciate the absurdity of English's statement, you need to understand that by lowering the standard of proof in these cases, it is much easier to punish not just the guilty but the innocent as well. According to Cornell law professor Cynthia Bowman: “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma. To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.”  Likewise:“The [new] standard is too low for something that can be so life-changing,” said Alwina Bennett, assistant provost for graduate student affairs and a public contact for the Rape Crisis Hotline at Brandeis University. Ms. Bennett, by the way, is someone who believes that rape is a serious and under-reported problem at the school.

The standard of proof that should be employed in cases where expulsion is possible should be set high, either "clear and convincing evidence" or "beyond a reasonable doubt," to insure that the innocent aren't punished with the guilty. That's the only reason that standards of proof are typically set high to begin with -- to protect the innocent.  Somehow, concern for the wrongly accused wasn't on the Department of Education's radar when it wrote the "Dear Colleague" letter.

Noel English, for one, is just fine with lowering the standard of proof, thank you very much, and here are her reasons (sit down before your read this):
"The appropriate burden of proof in the university is not as high as the criminal standards," said Noel English, who manages the university equity office at Missouri. "To me that makes sense. Because in reality, we aren't determining whether there was a rape. We are determining whether there was discrimination."  
Read it again. "We aren't determining whether there was a rape." 

Now cue Rod Serling: "You are about to enter another dimension. A dimension not only of sight and sound, but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone.

Excuse me, Ms. English, but that's exactly what you are determining when you expel a young accused of rape--whether he committed a rape. It's a question that has a life-altering answer, and if you expel him, it will stigmatize him to his grave--keep him from getting into other colleges, from attending graduate schools, from getting jobs.  Of course you are determining whether there was a rape.  And under the Dept. of Education's mandate, you are allowed to make the determination to expel even if you have significant doubts about whether he did it.

Let's make clear that we fully understand that a university's disciplinary process does not impose penal penalties that are reserved for the state. No one pretends that they do. My guess is that is what English was suggesting with her bizarre comment, that and the fact that the "Dear Colleague" letter is ostensibly designed to prevent discrimination (colleges were not properly addressing the sexual assault problem, etc. -- but it is based on a misapplication of the law, as former Department of Education attorney Hans Bader has demonstrated).

So we have a college administrator in charge of equity who suggests it is okay to expel someone for committing rape without bothering to determine whether he committed rape. This is the level of the public discourse on a critical issue that has grave implications for the wrongly accused?

We deserve better than this. We need to demand a more rational discourse.