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Saturday, May 17, 2014

Community of the Wrongly Accused: TIME's Cover Story on Campus Rape Probably Will Fuel Rape Hysteria, Innocent Men Beware

  
My issue of TIME arrived today (yes, I still read paper magazines) and COWA got it 100% correct! 

Mary
 

TIME's Cover Story on Campus Rape Probably Will Fuel Rape Hysteria, Innocent Men Beware, May 17, 2014 http://www.cotwa.info/2014/05/times-cover-story-on-campus-rape.html 

TIME has bowed to rape hysteria on campus and made campus rape a cover story. It expresses certainty that there is an epidemic of rape on campus, despite significant reason to doubt the existence of any such epidemic. SAVE has posted an invaluable list of sources that discuss the issue.

In the article, TIME acts as cheerleader for yet more measures to get tough on campus rape without once mentioning the words "due process." The persons who dominate the public discourse on campus rape are already animated by a disturbing hostility to the due process rights of presumptively innocent men accused of rape. TIME's unbalanced treatment of the problem will do nothing to reduce that hostility and could foment more rape hysteria.

Most troubling is that TIME doesn't bother to discuss the frightening phenomenon of schools and prosecutors bowing to the public outcry against rape by using innocent male students as sacrificial lambs to appease the mob. This is a theme we are seeing with alarming frequency, and it is entirely ignored by the mainstream media. It should be cause for concern because, as Innocence Project guru Mark A Godsey has said, the "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."

The only nod to the wrongly accused in the TIME piece comes some 3,500 words into the story:

But while zero tolerance may sound good in principle, it can be disconcerting to male students–and their parents–who fear that zealous colleges will side with alleged victims in murky circumstances. “I wouldn’t be surprised if there are schools in the country that don’t expel people when they ought to. I’m also convinced there are schools that expel people when they shouldn’t,” says Matthew Kaiser, a criminal-defense attorney who has represented students accused of sexual assault at colleges and universities.  

To properly protect accused students, Kaiser says, the standard for sexual assault should match the higher standard of proof applied to most other student violations, the accused should be entitled to representation by a lawyer or advocate and sanctions should reflect varying offenses. A student who sexually assaults a girl who is unconscious, he says, should receive a harsher punishment than one where the situation was ambiguous.
 
That's it. We wholeheartedly agree with Mr. Kaiser, but TIME should have discussed the protections due the presumptively innocent in far greater depth.

The TIME writer does not even mention, much less discuss, examples of schools overreacting to rape hysteria to the detriment of the innocent. For starters, TIME should have talked to Brett Sokolow, the guru of campus sexual assault prevention. Sokolow's anti-rape credentials can't be questioned.  TIME should have reported that after the Department of Education released the infamous "Dear Colleauge" letter in 2011, Mr. Sokolow said that colleges experienced a "fear-based reaction" to the Federal government's Title IX policy, and "that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” Mr. Sokolow said the reaction bordered on "hysteria."

TIME also should have quoted the newsletter Mr. Sokolow circulated last month where he reported that "in the last two weeks, I've worked on five cases all involving drunken hook-ups on college campuses. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong."

Five cases where Brett Sokolow thought schools got it wrong and punished innocent young men in the course of just two weeks, yet TIME doesn't deem it worthy to even mention them?

TIME mentions the rape accusation against University of Montana Grizzlies’ quarterback Jordan Johnson and treats it as evidence of a rape problem in Missoula County. While TIME mentions that Jordan was acquitted of criminal charges at trial, it presents a grossly distorted picture of what really happened by omitting critical facts. What TIME doesn't bother to mention is that the charges should not have been brought in the first place. The charges were brought, as the New York Times noted, "against the backdrop of a federal investigation into how . . . the city and county of Missoula, handled sexual assault allegations . . . ." Missoula County attorney Fred Van Valkenburg was intent on winning at all costs, and he assigned five prosecutors to pursue the case. The evidence didn't support such effort. It was reported that after the alleged sexual assault occurred, the accuser sent text messages to people that included the following: "I gave Jordan mixed signals," and "I don't think he [Johnson] did anything wrong." Do you think TIME's readers would have had a different take on the case if TIME had reported that? After the trial, it took the 12 men and women on the jury just a little over two hours to reach the "not guilty" verdict. TIME should have quoted the words of an alternate juror who spoke to the press: "The lack of evidence was troubling. The alleged victim's mixed messages and comments to friends cast doubt on allegations. The alleged victim even questioned events of the evening and there was no evidence that Jordan Johnson knew that he had sex without consent."  And after it was over, the prosecutor, Van Valkenburg, made a startling admission about the case that TIME should have reported. Van Valkenburg was asked if he felt pressure to file a rape charge against Johnson, given the ongoing federal investigation. Van Valkenburg said he did not think so, but he added this: “I can’t say the atmosphere in Missoula didn’t operate in my mind somewhere” as he considered whether to file the charges. Kirsten Pabst, a former chief deputy county prosecutor in Missoula and attorney for Mr. Johnson, said that the County Attorney’s Office charged Mr. Johnson with a sex crime just "to send a message."



TIME also should have talked to prosecutor Joe Deters, who declined to bring sexual assault charges against Xavier basketball player Dezmine Wells and who then excoriated Xavier University officials for the process they employed in expelling Mr. Wells from their school. Mr. Deters called the use of a University Conduct Board to determine whether Wells had committed an offense worthy of expulsion “fundamentally unfair” and “seriously flawed.” Deters said this matter “should never have gotten to the point where someone’s reputation is ruined.”

TIME didn't bother to mention to recent lawsuits filed by male students against schools that expelled them, including ones against St. Joseph's University and Swarthmore. Dez Wells has filed his own suit. The overarching theme in all these cases is that innocent students were charged in order to appease the public outcry against rape.

TIME doesn't focus on the serious concerns expressed about the Department of Education's mandate that sex offenses be adjudged by the lowest possible standard of proof, preponderance of the evidence. It isn't just blogs like this, and civil liberty organizations like FIRE, that oppose this mandate. The American Association of University Professors (AAUP) last year released its first report on the topic of campus sexual assault, spearheaded by the AAUP's Committee on Women in the Academic Profession, Subcommittee on Sexual Assault on Campus. AAUP does not support the Department of Education's mandate that schools use a "preponderance of the evidence" standard for college disciplinary proceedings involving sexual assault. The higher "clear and convincing evidence" standard isn't just preferable, it is "necessary" to insure that students are afforded the due process they are entitled, according to the AAUP. TIME doesn't mention this.

The failure to acknowledge the critical importance of safeguarding the rights of the presumptively innocent, while focusing exclusively on the harm to victims of rape, foments the Kafkaesque mindset manifested by Dartmouth administrator Amanda Childress, who recently said this about sexual assault: "Why could we not expel a student based on an allegation?"  TIME should have included that quote in its article