Monday, January 16, 2017

Betsy DeVos's support for due process is a "red flag" that she's a rape apologist

The feminist hostility to due process for college men accused of sexual assault is on full display. Betsy DeVos, Trump’s nominee for secretary of education, and her husband, donated $10,000 to the Foundation for Individual Rights in Education (FIRE), the nonpartisan organization that defends free speech and due process on college campuses. That isn't sitting well with with the usual suspects, who say it's a "red flag" suggesting she doesn't care about college rape victims. See here and here and here.

And this is how far we've come. Supporting fair processes that insure the accused receives notice of the claims against him and a fair opportunity to defend against them is now a "red flag." Concern for fairness for the accused means having no concern for rape victims. It's all-or-nothing. A nominee for a cabinet position can't possibly be concerned about fairness for both accusers and the men accused. If she cares about the latter, she must be a misogynist and a rape apologist even if she also happens to care about the former. This perfectly mirrors the climate on American college campuses, where the only people who bother to speak out about sexual assault think that due process for men accused of sexual assault is "bullshit." Even mentioning the need for due process in this context sends the far left into a state of apoplexy. If you need more proof, just scroll through some of our posts from the past several years, here.

They bemoan that our politics has become polarized, and they long for the day when a Republican would "reach across the aisle" and find common ground with Democrats. Yet they are happy to imply that donating to FIRE is an act of evil. It is difficult to imagine how serious and constructive dialogue is even possible with these people.

Let's dispel some "fake news" circulated by the purveyors of the belief that concern for due process is tantamount to rape apology. Their principal defense of the current chaos on campus, including the Department of Education's mandate that schools use a "preponderance of the evidence" standard (the lowest of all possible standards), is that this is the standard used in civil cases alleging discrimination under other civil rights laws.

This argument is laughable to anyone who practices civil law, and it is astounding to me that news outlets parrot their argument as if it has legitimacy. In civil cases, the defendant is afforded all manner of evidentiary protections that colleges routinely deny young men accused of sex offenses. If the Dept. of Education would mandate that colleges adopt the evidentiary protections mandated for defendants in civil trials, most of us would be fine with it--it would, in fact, be an improvement over anything most colleges have ever done. But the procedures utilized in college kangaroo sex tribunals cannot be compared to the procedures used civil courts where, generally, only money damages are sought and the preponderance of the evidence standard is employed.

In civil cases, defendants are allowed to be fully represented by counsel at every stage of the proceeding.

Their counsel are permitted to make arguments for them and to vigorously depose prior to trial, and to vigorously cross-examine during trial, the accuser and any other pertinent witnesses. In college sex tribunals, counsel for the accused can rarely do more than sit there--if that.

Aside from depositions, defendants in civil litigation 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, s/he is sanctioned by the court, up to and including dismissal of his or her case and requiring him or her to pay the other side's attorney's fees. Nothing remotely similar is allowed in most college sex proceedings.

Hearsay evidence generally is excluded, as is evidence whose probative value is outweighed by its prejudicial effect on the other party. In college sex proceedings, the adjudicators do not have a clue what constitutes hearsay, much less how to assess whether evidence is too prejudicial for admission.

Trial and appellate judges are lawyers bound by centuries of common law precedent. In college sex proceedings, there are no constraints in the decision-making process, and we've seen many examples of decision-making unmoored from any semblance of rationality or fairness.

The college kangaroo sex proceeding has no relation to the orderly administration of justice in civil court--none.