To anyone who hasn’t been following the debate over campus sexual assault, the headline of this article seems like a pretty obvious statement.
“Sexual assault is a crime, of course it should be handled by law enforcement.”
“It’s Donald Trump, of course he said something outrageous.”
“It’s pineapple, of course it doesn’t belong on pizza.”
All obvious statements to normal people. But to the federal government and college campuses, the idea of crimes being adjudicated by law enforcement has been a foreign concept for decades, and especially in the past few years.
That’s because the anti-sex discrimination statute known as Title IX has been interpreted to mean that colleges have a duty to adjudicate sexual assault as a disciplinary matter. Yes, they also adjudicate assaults, thefts and drug use, but there hasn’t been the media attention for those issues that sexual assault has received.
Getting disciplined for drug use, or even assaulting someone, won’t land your name in the papers as a criminal. But getting accused of sexual assault now allows a student to be named in local papers and branded a “rapist” on campus, even without the facts of the case being revealed.
Oftentimes, the accusation is as fact, when the actual details of the case increasingly amount to a he said/she said regretted drunken hookup. There was the case at Amherst, where the student was expelled even though the woman texted friends right after the encounter making it clear it was a mistake and not sexual assault.
There was the case at the University of Findlay, where two students were expelled even though the woman allegedly bragged to friends about the encounter. There was the case at Lynn University, where the woman claimed she was too drunk to consent but was seen on video cameras just 30 minutes before the encounter behaving normally.
And there was the case at Colorado State University-Pueblo, where even the woman said she wasn’t raped, but the student was suspended anyway. The list goes on.
Meanwhile, the federal government is investigating more than 200 schools for mishandling sexual assault accusations. That’s because, as feminist former judge Nancy Gertner has said: “If you find for the man, you’re bound to be criticized. If you find for the woman, you are not.”
If an accuser doesn’t get the outcome she (or he, in rare cases) wants, she can go to the federal government and get the school investigated. And the Education Department always finds a violation of Title IX, even if it finds the accuser’s claim to be lacking.
Meanwhile, just a handful of male accused students have gotten the Education Department to investigate their claims of gender bias (and many more have been waiting months or longer to even hear back from the department).
Schools clearly aren’t capable of handling these cases. They once swept these cases under the rug to protect their reputation, but now the pendulum has swung and they’re railroading accused students to avoid punishment from the federal government.
Which is why the Republican Party’s mention of Title IX and sexual assault specifically is so important. The current draft of the GOP platform states: “Sexual assault is a terrible crime, and we commend the good-faith efforts by law enforcement, educational institutions and their partners to address that crime responsibly.”
“Whenever reported, it must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge,” the draft states. “Questions of guilt or innocence must be decided by a judge and jury, with guilt determined beyond a reasonable doubt. Those convicted of sexual assault should be punished to the full extent of the law.”
Party delegates offered amendments to the language on Monday in Cleveland. One amendment, from Brandon Smart of America Samoa, sought to add a line that stated: “Educational institutions do not have the ability or means to properly investigate sexual assaults.” His amendment failed.
Another amendment, this one from Bob Maginn of Massachusetts, sought to remove the line about rapes being “decided by a judge and jury, with guilt determined beyond a reasonable doubt.”
He wanted to replace that line with a statement that the Republican Party understands the “legal and contractual rights” of colleges and universities to handle accusations, but that ultimately they should “use the courts to prosecute these crimes.” His amendment also failed.
Many female delegates also spoke up about the need for law enforcement to be involved — as a way to help accusers. Because colleges have been and still are historically bad at handling these accusations, the police need to step in.
No one is suggesting that schools can’t expel a student for sexual assault. But schools shouldn’t be using pseudo-court systems so open to bias to brand students as criminals when the police aren’t involved.
Naturally, activists don’t like the GOP draft language. This is why one side of a debate isn’t allowed to set the rules. Of course victims need to be protected, and it’s not a problem to allow accusers access to support services.
But determining guilt (and whether someone actually is a victim) requires more than sympathy — it requires facts. That’s why due process is so important and why the rights of the accused need to be protected.
Ashe Schow is a commentary writer for the Washington Examiner.
