Don't forget due process.

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Campus Rapes and Kangaroo Courts

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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I was disturbed by something that one of Andrew Sullivan’s commenters wrote to him about the increasing trend toward using campus disciplinary systems as a substitute for rape trials.

“Due process” does not mean “maximal procedural protections in every case.” Rather, it means that a party to a dispute should receive the procedural protection (“process”) that is “due” given the circumstances.

Civil defendants, for example, do not have the same trial rights as criminal defendants, because if she loses, the civil defendant won’t be going to jail. To borrow a term from my favorite law professor, “due process” is an “error deflection” principle. The law understands that mistakes happen. Procedural safeguards work by “deflecting” the risk of those mistakes away from the protected party.

When you talk about campus rape, then, you need to remember the stakes, and assess the due process problem accordingly. In a college disciplinary proceeding, does the accused student risk being thrown in jail? Fined? His criminal history broadcast to the world through a public trial?

No, no, and no. He’s just going to be expelled from college, to re-enroll somewhere else. His risk of error is low, relative to a criminal case. By comparison, the risk of error borne by the accuser is about the same relative to a criminal case, if not higher. Following acquittal, the victim can’t avoid a wrongly-acquitted rapist. She must go to class with him, socialize with him, and live (in most cases) within a mile of him. She’s trapped, basically. With her rapist. In her home.

When campus reformers talk about making it easier to expel accused rapists, they’re not arguing against due process. They’re just emphasizing the “due” part over the “process” part. And with good reason.

Now, this is just one reader of a popular blog.  But I’ve heard some version of this argument over and over in discussing campus rape prosecutions: “not a big deal, because this is not the government depriving you of your liberty, it’s just a help for victims to get away from their rapists, and nothing really bad happens to the boys.

In the first place, the government is pushing for these relaxed standards of evidence and due process, via Title IX, which means that this is the government doing something to you.  Not putting you in prison, to be sure.  But -- and I hardly believe I have to say this -- getting expelled on a sexual assault charge is, in fact, something very bad happening to you.  I don’t know why people keep saying that this is “all” that happens, as if it were the educational equivalent of having to change hotels mid-vacation. 

Read BuzzFeed’s account of what happened to men who went through these college disciplinary processes to see just how big this can be.  One man lost his job after an anonymous caller notified them of his “convictions” -- which were for “non-consensual kissing.”  It can go on your permanent record, making it hard to get into grad school -- you might possibly recover from a youthful bad grades, or plagiarism, but our society doesn’t offer much rehabilitation for sex offenders.  You’ll probably lose credits, and for those attending selective schools, it seems likely to me that a man with such a notation on his record would have a hard time enrolling in another elite school.

When people say this is “no big deal,” how many of them would shrug off having this happen to them, on the basis of a hearing where the odds are stacked in favor of believing the accuser, and double standards are often rigorously applied?  Which is to say: when two people who are equally drunk have sex, the girl can be presumed to be unable to consent—while the boy is held to be fully capable of determining her level of intoxication, and of making the informed decision not to have sex with someone too much the worse for wine.  And this in the name of promoting equality between the genders.

I’m not belittling the crime of rape, or how traumatic and awful it is for the women it happens to.  Rape is a terrible thing, which is why we try it in courts, and lock rapists away for a good long time.  It’s also why we treat rapists like they are terrible people who may be admitted to normal society only after convincing repentance and rehabilitation.

That’s precisely why it’s problematic that we’re adjudicating these charges through such a weak process.  Expelling someone for rape creates an official record that brands them, in the eyes of society, as a rapist.  We should do that only after careful examination, giving the accused every chance to tell his side. Not because we are making light of rape, but because we are treating these terrible events, and the punishment we mete out, with all the seriousness they deserve.

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To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
James Gibney at jgibney5@bloomberg.net