Alexandra Brodsky, a Yale Law Student and well-known campus activist who also edits the feminist website Feministing.com, said during a panel Thursday that some who are raped don't immediately realize it.
Brodsky claimed that just because a woman didn't immediately report a sexual assault doesn't mean she's lying.
"Often schools have time limits because there's this idea that if you were raped you would know it immediately, even though survivors' experiences make clear that that's not true," she said. "That often people need some time to reflect and feel comfortable speaking out."
She also suggested that campus sexual assault cases should not be turned over to the police.
"We see this in the responses, with the state legislatures across the country where their first idea to solve the problem is to say 'How about we just turn everything over to the police?'" Brodsky said.
"That's a real intuitive idea if you have faith in the criminal justice system," she added, to mild laughter from a few in the audience.
But a lack of faith in the criminal justice system is no excuse for trampling the rights of accused students in complicated, he said/she said cases. There are many, many reasons to distrust police, but there are many, many more reasons to distrust campus adjudicators. Unless, of course, your main goal is to find more students responsible in an inherently biased system.
The Yale Law student also wanted people to stop focusing so much on the fact that colleges are being forced to adopt a "preponderance of evidence" standard when handling campus sexual assault. This low burden requires the administrators adjudicating the case to be just 50.01 percent sure the accuser is more believable than the accused. In practice and in the current climate, this makes it fairly unlikely an accused student will be treated as innocent until proven guilty.
Brodsky said she saw the standard to be "the most equitable standard of evidence."
When asked by the Washington Examiner why these cases shouldn't be turned over to the police, given the fact that they already have the training to handle them and that activists could spend their time fixing the problems with the current system rather than creating a whole new system, Brodsky responded:
"The point of school decision-making is not to be a sort of local police, you know, criminal justice equivalent, but to ensure that a student can continue to learn despite facing gender-based violence. And because of that, I think that if we were to pass this along to the police we would lose all of these equality concerns and all of these protections. And I think that, again, we would also just end up with an environment where no one feels like they can – where students feel like they can talk to no one."
But not passing these cases to the police means we lose basic due process in cases that are actually felonies. I've written before about how schools and activists can help accusers go through the difficult criminal justice system. Instead of creating an entirely different court system led by people with minimal training – and no law enforcement background – it would be better to try and make the criminal justice system more friendly to accusers.
One surprising statement from Brodsky was her aversion to putting permanent marks on the transcript of a student who was expelled or suspended for sexual misconduct.
"I worry about that because it treats sexual misconduct differently. I also worry about that because I think that people can change. And my public defender hat says that we need to give people the opportunity to learn from this experience."
That was in response to an Examiner question about allowing supposedly dangerous rapists to go jail free. Since campus courts can at most expel a student, that leaves these alleged monsters free to prey on non-students or apply to another school and prey on students there. The fear of that situation alone, I think, should make activists want these cases taken to the criminal system.