Following a report that Baylor University provided a “wholly inadequate” response to accusations of campus sexual assault – and in one case retaliated against an accuser – members of the media have been quick to demand the school update its policies.
And make no mistake, Baylor should make some changes, but its failures are yet more evidence that schools shouldn’t be adjudicating accusations of campus sexual assault.
The investigation into Baylor’s policies began in August 2015 when the school contacted the law firm Pepper Hamilton “to conduct an independent and external review” of the school’s treatment of sexual misconduct accusations. The report was damning, and specifically called out the athletic departments for protecting athletes from accusations.
The law firm had access to all relevant documents and materials from Baylor, and interviewed five current and former employees and students. Its report, released late last week, found that Baylor failed to adhere to the anti-gender discrimination statute known as Title IX (which has been reinterpreted by the Education Department to cover sexual assault), properly train staff and educate students, conduct prompt and equitable investigations and prevent potential hostile environments, among other problems.
The report brings up one of the major problems with schools currently handling these accusations – the decision of whether to investigate if an accuser doesn’t want to. The Pepper Hamilton report knocks Baylor for failing “to appropriately weigh a request not to move forward against the University’s Title IX obligation to investigate or otherwise determine what occurred.”
So Baylor was faulted for moving forward when an accuser didn’t want to, yet the Education Department has been faulting schools for not moving forward even if an accuser didn’t want to. Michigan State University and the University of Virginia were both condemned for not continuing with an investigation even though an accuser didn’t want to. Sexual assault activists have argued that accusers should be the ones driving the investigations, and the Baylor report seems to agree, but the Education Department sees things differently.
Baylor was also criticized for applying a “by the book” approach to investigations “that treated all respondents equally, regardless of their status as a student-athlete.”
My goodness, how terrible to not give special or poorer treatment to one group of students over the other!
The main issue Pepper Hamilton had with this approach, it seems, is that Baylor did not apply a “trauma-informed” method when conducting investigations. In essence, Baylor didn’t adopt a “listen and believe” attitude that accepts all suspicious behavior as evidence of “trauma” even when that behavior would in any other crime be evidence of lying. Such methods of investigation are designed to railroad the accused, as investigators are taught that the accusation is most likely true (so don’t bother considering the accused as innocent until proven guilty) and that inconsistencies in an accuser’s account are just evidence of trauma.
Oh, and no report would be complete without claiming that Baylor “victim-blamed” accusers when trying to conduct its investigation. I have no doubt that Baylor has some terrible policies, but we don’t have the details to know what these accusations actually entailed. We know some football players were actually convicted of rape in a court of law, proving once again that the only true way to get a rapist off a campus is through the justice system.
One of the most telling lines from the report is found on page 11, when Baylor’s “internal steps gave the illusion of responsiveness to complainants but failed to provide a meaningful institutional response under Title IX.”
At schools that are desperately trying to comply with the ever-changing rules from the Education Department, the “illusion” is of due process for accused students. The school’s rules make it seem like the accused will get a fair hearing – but they don’t. I expect Baylor’s rules to change to the other extreme.
The real fear here is that, as with any accusation against a school like this, the reaction will be an overcorrection that targets accused students and eviscerates due process or the presumption of innocence. The next male student accused of sexual assault at Baylor is going to be railroaded no matter how flimsy the evidence against him.
It’s happened before. At Columbia University, even before “Mattress girl,” there was an uprising on campus after students became aware that some accused men were not found responsible or expelled. The next student accused, who would eventually sue the school as John Doe, was expelled even though the evidence against him consisted of an accusation.
But Columbia was facing criticism, so John Doe became an example the university could hold up and say: “See, we take accusations seriously.” Because taking accusations seriously now means finding students responsible no matter what, rather than seeking the truth and treating sexual assault like the crime that it is.
We see evidence of the coming overcorrection at Baylor in the report from Pepper Hamilton. On page five of the report, the law firm faults Baylor for failing to identify “the likelihood of occurrence” of sexual assault. We all know what this means – the debunked “1-in-5” statistic.
The recommendations for the school also ooze overcorrection, with the word “complainant” from the report being replaced with “victim,” because that is how Baylor now has to think: Every accuser is automatically a victim before any investigation takes place. This is how bias begins.
Baylor needs to fix its campus sexual assault procedures, but going forward it can’t overreact and remove due process as so many other schools have done. The best option would be more involvement with law enforcement, since they were the ones that handled Baylor’s recent serious allegations. But it’s unlikely any school will stand up to the federal government and declare that sexual assault is a crime and should be treated as such.
Ashe Schow is a commentary writer for the Washington Examiner.
