Saturday, October 25, 2014

Prof. Alan Dershowitz: "Harvard's policy was written by people who think sexual assault is so heinous a crime that even innocence is not a defense."

It's a great quote, and it appears in this week's Time Magazine in a story about the letter published last week in the Boston Globe signed by 28 Harvard law professors voicing strong objections to the school's one-sided, feminist-inspired sexual misconduct policies.

But when Dershowitz continued and said that people accused of rape should have a full and fair opportunity to defend themselves, Time pooh-poohed it: "It's a noble idea, but . . . ."

The "but" included Time's observation that "a student disciplinary hearing is a civil matter, not a criminal one." This a frequent refrain from people who are willing to tolerate the academy's hostility to due process as the price of battling the sexual assault "epidemic."  It doesn't hold up to scrutiny, and Time ought to know better.

What Time and others who chant that line don't seem to understand is that in civil cases, the defendant is afforded all manner of evidentiary protections that colleges routinely deny young men accused of sex offenses. In civil cases, defendants are allowed to be fully represented by counsel at every stage of the proceeding. They are permitted to vigorously depose prior to trial, and vigorously cross-examine during trial, the accuser and any other pertinent witnesses. Aside from depositions, they are also permitted to engage in all manner of discovery, including proffering requests for admissions, requests for production of documents, and interrogatories. And if the plaintiff fails to respond to proper discovery requests, she is sanctioned by the court, up to and including dismissal of her case and requiring her to pay the other side's attorney's fees. Hearsay evidence is excluded, as is evidence whose probative value is outweighed by its prejudicial effect to a party. Trial and appellate judges are lawyers bound by centuries of common law precedent. And the defendant has a hand in picking the jury in order to insure fairness in the adjudication.

None of that is present in kangaroo campus sex proceedings. If we're going to take solace in the fact that college disciplinary hearings are just "civil matters," lets insist that they start resembling civil proceedings -- as opposed to Kafkaesque Soviet show trials.

Time also trivialized the harm to young men expelled from school for sex offenses they didn't commit. Colleges can't jail men found responsible for sex offenses, Time noted, they can "only" banish them from campus. In fact, expulsion can be a life-altering punishment. Cornell's Prof. Cynthia Bowman said this: “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.” Brett Sokolow, probably the most prominent victim's advocate on American campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

Time also trots out the seriously disputed "one-in-five" as if it were a fact. Not even the Washington Post buys that one.

Time's conclusion? Any unfairness to our sons who happen to be accused of sex offenses is just a natural "growing pain" after so many years when schools neglected our daughters when they were raped. In 20 years, maybe the schools will get it right.

In other words, nothing to see here, nothing to be concerned about. Move along.