Sexual Assault. It’s always a bad thing. It’s a crime. And it’s something that far too many women, men, and boys carry with them as part of their past. For some it’s during childhood at the hands of a family member or other trusted adult. For others, it happens later at the hands of their peers during their college years. And for others, it occurs well into adulthood.
At the moment, the topic is front and center in Washington D.C. as Trump Administration officials decide how to proceed on the issue of campus sexual assault. I certainly understand why folks are upset by the signaling of a likely rollback of the 2011 Obama guidelines. But I also understand why others are cheering it. And I’m not sure there’s much room for anyone who can see both sides in a debate that is so loud, so polarized, and so quick to shame any and all who dissent.
Despite what the Twitterverse would have us believe, reasonable minds can and do disagree on this issue. All of us come to this difficult and painful issue with our own personal experiences and realities that inform how we believe sexual assault cases should be handled in a court of law or on a college campus. In the eyes of some, the process should look similar for both. To others, the campus burden of proof should be lower. And to others, college campuses have no business acting as judge and jury on an issue that belongs in the hands of the police and the courts.
From the Washington Post this past April:
In April 2011, the Education Department told universities they should weigh sexual-violence cases using a standard of proof called “preponderance of the evidence.”
Common in civil law, this standard is less demanding than the “clear and convincing evidence” threshold that some schools had used in disciplinary proceedings and the “beyond a reasonable doubt” standard that would be required for conviction in a criminal court. The federal guidance on this point has been controversial.
Some law school professors and the American Bar Association see the 2011 Obama guidelines as overreach — some have called it a “trampling of due process.” Many victims’ groups and folks familiar with sexual assault vehemently disagree. They worry that such a high burden of proof is too hard to clear and will lead victims, mostly if not all of whom are women by the college years, not to report their assaults out of fear they’ll never be able to prove it.
And let’s face it. Colleges and universities needed to get better around this issue that they had been mishandling—or not handling at all—for years.
As a woman with four years of the college scene under my belt and a decade of working in schools with adolescents, I have seen all sides of this very difficult and complicated issue. There is a culture that should have us concerned, regardless of where we land on how to improve it.
I am also the mother of three young sons who watched the Duke Lacrosse case unfold before my eyes one year after my first child was born. I listened to a narrative take hold about privileged white lacrosse players who must also be rapists. And it wasn’t just Al Sharpton and Jesse Jackson peddling the story and from dusk til dawn for months. It was highly respected journalists and television commentators. It was the Duke faculty. It was the Durham County District Attorney Mike Nifong (who was subsequently disbarred, fired, and jailed for his corrupt actions during the Duke case). I saw the Duke Lacrosse Coach, (and National Coach of the Year), Mike Pressler, lose his job despite stellar performance; and I saw the university he loved turn their back on him because he stood up for his players.
As an aside, I now proudly reside in the state of Ron Machtley, President of Bryant University, who welcomed Coach Pressler when he was a pariah in the minds of those who didn’t have the patience or the decency to wait for the facts. In the years since the scandal, he has transformed the Bryant lacrosse program into a contender and turned down lucrative offers from other institutions who, predictably, changed their minds about him once the rape story fell apart and the three players were declared to be innocent. Too little, too late. How could he turn his back on the only people that didn’t turn theirs on him?
From the Boston Globe in 2015:
Everything about the woman’s story was bogus. The three players, all indicted on rape and kidnapping charges, were exonerated more than a year later. Yet when all the smoke cleared, Pressler was out on the street, out of work, a coaching pariah. He was turned down repeatedly for college coaching vacancies until Bryant officials had the courage to back a guy whose fatal flaw in Durham was telling Duke administrators that he believed his players were innocent, that he refused to abandon them, that they deserved due process of law.
A brave man of integrity, the proud father of two young girls, caught up in a feeding frenzy that remains a permanent stain on Duke University and faculty, the American press, and the activist groups who spent a year maligning the three accused men, their teammates, and their devoted coach.
Though far too many choose to pretend these mistakes don’t happen—or somehow don’t matter—anyone honest has to admit they’ve seen the hysteria, false reporting, and outright lies that can surround these cases (UVA and Duke are obviously classic examples) and while I firmly believe (and pray to God) I’d be the last mother to make excuses for any of my owns sons if they committed this terrible crime, I would do everything in my power to protect them from being falsely accused and subsequently kicked out of school. I can’t imagine any mother, whether it be Duke or the local community college, wouldn’t say the same.
We’ve seen young men expelled from school, their reputations in tatters, based on an accusation. And that may seem like no big deal when it’s just some rich white kid you don’t know. But it is a huge deal for anyone. And it has turned into what many see as a very dangerous precedent. In recent years, attorneys find themselves barraged with calls to represent male students who have been accused of assault on campus.
“There was not a daily flow of calls on this topic, and now there are. In the last 18 to 24 months, the complaints and how to represent and process these disciplinary matters have become an issue,” Miltenberg told The Daily Beast, saying he has been approached by young men from over 100 different universities over that time seeking his legal counsel.
To him, the sexual assault disciplinary process on campuses is a disservice to both the victim and the accused. “There’s something about the way the process is evolving that doesn’t work for the accuser and the accused.” (The Daily Beast)
Ask yourselves. If your son (or brother, nephew, cousin, friend) were accused of sexual assault and you truly believed he was innocent and had been wrongly accused, would you be ok with a “preponderance of the evidence” standard? Or would you want him to be entitled to due process and to a standard of “clear and convincing?” I get that it’s easy to get on board with the protests and the slings and arrows pointed at Betsy DeVos and her team but I venture to say it would be a different story if it was your son who, for whatever crazy reason, was wrongly accused of sexual assault.
On the other hand, we know that miscarriages of justice happen in our courts of law and that bias around race and class can and does rear its ugly head, forcing us to acknowledge that far too often, there is no justice for the victims. Case in point is Brock Turner, the Stanford swimmer, who raped a young woman and got the proverbial slap on the wrist because the judge seemed more focused on what the defendant had to lose rather than on what the victim had already lost. That judge, Aaron Persky, who was subsequently removed from similar cases, epitomizes why so many are adamant that colleges need to be aggressive on this issue and that a lower standard of proof is not only needed but long overdue.
Turner, 20, was convicted in March on three felony counts for the January 2015 sex assault that happened after an alcohol-fueled fraternity party while Turner was a freshman at Stanford. Persky sentenced him to six months in jail and three years of probation, but he could be released in as little as three months. Turner was also required to register as a sex offender.
The maximum possible sentence for the charges Turner was convicted of is 14 years in prison; prosecutors sought six years behind bars. (CBS News, 6/15/16)
I welcome the opportunity to have these hard conversations with friends, colleagues, assault survivors, young men, and college faculty.
When I raised it with someone a while back in the context of being a mother of all boys, I was told “just teach your boys not to rape people.” And the woman who said it considered that to be a smart, respectful and reasonable response. But it wasn’t. And it isn’t.
I don’t pretend to know the answer. I do know that we won’t get anywhere if we can’t even have the conversation without impugning the character of the person who just happens to see it a different way.