Lack of campus due process could one day help an actual rapist

Due process for college students has been in the news lately, as judge after judge makes favorable rulings for students accused of sexual assault.

Naturally, those outraged over the supposed epidemic of campus sexual assault claim that due process is an impediment to justice. An accusation is as good as guilt, some activists seemingly believe.

But accused students who feel they have been wrongly vilified are fighting back, by suing the universities that expelled them and treated them as guilty from the start. They’re claiming a lack of due process protections.

For instance, most colleges and universities don’t allow the accused or accuser to have legal representation (some schools allow a lawyer to sit in but not speak), many schools don’t even provide students with an explanation of the charges against them, or allow the accused to cross-examine his accuser. No testimony in campus courts is given under oath, yet the transcripts and evidence can be turned over to police afterward.

The accused students who are now suing are presenting evidence they believe exonerates them. The judges that have ruled favorably have acknowledged that they are not re-adjudicating the case but determining whether a “reasonable person would necessarily draw a different conclusion from the record.”

In many cases, much of the evidence boils down to he said/she said, which brings up a frightening question: What happens if an actual rapist sues the school for a lack of due process and wins?

It’s not a difficult scenario to imagine. And while it appears most activists believe nearly every accused student suing their school is guilty, the evidence suggests otherwise. Beyond that, let’s assume they’re right in at least one case and an actual rapist gets through the legal system.

The reason they would ultimately be able to get away with it would be because the school didn’t provide due process protections. Protecting due process rights may mean fewer male students are expelled based solely on shifty accusations, but it could also mean an actual rapist would be able to use the legitimate justice system to have his expulsion overturned.

Not everyone believes this could one day be a problem. Lawyer and author Wendy Kaminer told the Washington Examiner in an email that it would be a “risk” for actually guilty students to involve the legal system.

“Why would they prolong the process and risk bringing the legal system into it if their victims haven’t done so?” Kaminer asked. “And if the victims have reported their assaults, law enforcement will or should take over.”

She added: “Besides, with or without due process, there’s always the risk of guilty people evading accountability. It’s a risk the justice system is supposed to accept, underlying the presumption of innocence.”

Bottom line: Due process isn’t just good for the falsely accused, it’s effective at ensuring the truly guilty receive just punishment.

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