“A presumption of guilt in sexual assault cases”

by Walter Olson on June 11, 2014

Civil libertarian Wendy Kaminer, writing at WBUR, says the new White House task force report on campus sexual assault

reflects a presumption of guilt in sexual assault cases that practically obliterates the due process rights of the accused. Students leveling accusations of assault are automatically described as “survivors” or “victims” (not alleged victims or complaining witnesses), implying that their accusations are true….

Thus the task force effectively prohibits cross-examination of complaining witnesses. … But by barring cross-examination, you also protect students who are mistaken or lying, and you victimize (even traumatize) students being falsely accused…. School officials are also encouraged to substitute a “single investigator” model for a hearing process, which seems a prescription for injustice.

More links on the current controversy:

(& welcome Glenn Reynolds/Instapundit readers)

{ 9 comments }

1 William Nuesslein 06.11.14 at 11:05 am

Newton’s laws, expressed in terms of the calculus, told us how the planets moved through the heavens. Having some familiarity with the Calculus was required of University degrees. Alas, that requirement was inconsistent with human abilities, and the Calculus requirement was dropped. Unfortunately, rationality itself was decoupled from the concept of a learned person. I wrote to Senator Gillibrand that work at ground zero was outdoors where air was refreshed several times an hour. Exposure to asbestos and other materials was nearly zero. But the lawyer trained Senator just could not comprehend the notion of breeze. even though she is an airhead. Several billions of dollars were allocated to services for first responders, loosely defined. My understanding is that the ground zero program was generally fraud. Someone should write a book about it.

Roughly 90% of humans are married for a portion of their lives. Copulation is required for survival of the species. This idea is beyond Senator Gillibrand and many other people. Until recently (18th century) roughly 50% of children in Europe and the colonies died before age 5. Thus women needed 8 or so children to get grandchildren. That takes thousands of copulations on average. The great chief justice John Marshall was one of 15 children, and he and Polly had 10 children of their own. Polly was but 14 when Marshall was smitten by her. They married when she was just 16. Nowadays Marshall would be a registered sexual predator instead of an universally admired justice.

2 Ed 06.11.14 at 12:03 pm

It’s interesting to see that this trend of guilty until proven innocent has spread to other areas. Especially with the media, which in their haste to get a ratings scoop reports rumors as fact. You also have self-styled experts who provide comments that either can’t be verified or no effort is made to verify them by the reporter.

3 Oh my 06.11.14 at 2:58 pm

Just the absurdity of identity politics.

4 Noway 06.12.14 at 8:51 am

“A presumption of guilt in sexual assault cases”… for men.

My guess is if a guy showed up, claiming he was drunk and taken advantage of by some gal (or perhaps even another guy), there would be much smirking and lack of seriousness displayed by people who otherwise would be grim-faced and protective.

5 That Guy 06.12.14 at 8:52 am

This is replacing justice by logic with justice by feelings.

In traditional jurisprudence, evidence is weighed to come to a verdict which may be imperfect but is at least based on logic.

The ridiculous college tribunals are purely based on feelings. If they feel like he’s guilty because the accused feels like he’s guilty, then he must be found guilty. That’s why there’s a continual striping away of any chance to present evidence or arguments against the so-called victim. Making your feelings known is a very straight-forward process which doesn’t require cross-examination.

Welcome to trial by emotion. Stop it now before it spreads into the criminal system.

6 RonF 06.12.14 at 11:00 am

In the Higher Ed article on Tufts, the writer asks the following question:

“What is not clear, however, is what, exactly, the majority of colleges are supposed to do beyond reporting incidents to police, ensuring that adequate security is in place, providing meaningful sexual assault education to students and faculty and taking victims’ rights seriously. ”

Let me help here. The answer is simple. Whenever a female student alleges that she has been sexually assaulted, do the following:

1) Accept any definition of “sexual assault” that the female student decides to use.
2) Presume the male student is guilty.
3) Hold a “star chanmber” style hearing where everything the female student says is accepted as true.
4) Refuse the male student to have any rights in the hearing.
5) Expel the male student.

It’s very simple, and easy to do. The Federal government will accept this process as being in full compliance with their guidelines.

7 wfjag 06.12.14 at 1:36 pm

@Ed:
“It’s interesting to see that this trend of guilty until proven innocent has spread to other areas. Especially with the media, which in their haste to get a ratings scoop reports rumors as fact.”

Actually, that’s probably always been the case. For example, in 1968, the Tet Offensive was an unmitigated disaster for the NVA and VC. Their cadre, Soldiers and supporters were exposed when they came out to support what they believed would be the final battle and victory, and then slaughtered. The outcome was so dire for North Vietnam that its leadership debated withdrawing all of its personnel from the South, and opening genuine peace talks with the U.S. However, Walter Cronkite then went on the air and pronounced “The War is lost”, and that became the theme and conclusion, and is the faux history repeated ever since. I can supply many other historical examples of the media’s blatantly false narratives.

The difference today is that with the Internet and other forms of rapid communication, reporting is no longer restricted to a few sources (which tended to ape each other). Newsbusters and similar sites report on the facts omitted. And, there are many competing sources which report on stories and facts “the media” omit or ignore. Assertions such as “50% of marriages end in divorce” and there is a “consensus” among scientists that human activity and release of CO2 is causing catastrophic global warming, can be easily checked and quickly debunked. Still, there can be a problem in determining which alternative sources are reliable, and which are promoting a different version of bunk. [But for Walter, not long ago I would have been burned by a site I thought was reliable, but was touting a false story.] Whether you’re consuming “health foods”, socks, toilet paper or “news”, the consumer still needs to “beware” and to “shop around.”

As to the current kerfuffle, I believe that when Yuppie Spawn start being kicked out of colleges, and, due to unchallengeable accusations of sexual assault, are denied admission to the grad programs which would assure them an affluent life, their parents will be lead the vanguard of a backlash against these standards. Further, college officials (and even students who are hearing board members) will discover the limits of qualified immunity when faced with personal liability in suits brought under 42 USC Sec. 1983 and other laws which posit liability for denial of constitutional rights, such as denial of meaningful due process. The discussions on blogs and other places, such as the one here, will strip the defendants of the argument that they did not know and could not reasonably know that the new standards for campus sexual assault proceedings violated fundamental constitutional rights. This could prove the Dawn of a New Age for Civil Rights litigation. What happened in the Duke Lacrosse case could be the the pattern, and will be reported whether or not the legacy media attempts to ignore the stories or omit material facts.

8 Shawn L. 06.12.14 at 5:35 pm

School officials are also encouraged to substitute a “single investigator” model for a hearing process, which seems a prescription for injustice.

AKA the “Judge Dredd” model of justice.

9 Mark S. 06.13.14 at 9:27 am

This is no different than the DV status quo that has permeated family courts for a decade.

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