The movement to combat sexual assault on campus is important and profound. Activists have done critical organizing and brought to light a long-neglected crisis. But along the way, as is what often happens with hot-button issues, there have been policy changes that do more harm than good.
First in 2011 the Obama administration issued a rule instructing colleges to adopt a “preponderance of the evidence” standard for sexual assault cases. According to this concept, if administrators believe there is at least a 51% chance misconduct occurred, they must find the accused guilty. This is the lowest burden of proof possible.
After receiving this guidance, hundreds of schools around the country adopted the approach — a problematic development to say the least.
Since America’s founding, our country has fiercely believed in the right to a fair trial. Reforming disciplinary policy in this way mutilates that belief.
How exactly is one supposed to determine whether a case meets the 51% standard? It is an absurdly vague criteria that will inevitably lead to unjust verdicts and innocent men having their lives ruined.
Rape is a horrific thing, which far too many young women endure on campus today. As a society, we should expend tremendous energy toward devising solutions to keep women safe. But we should stray away from ideas that pervert our justice system in the name of progress.
When it comes to prosecuting these crimes, there is no perfect solution.
Traditionally, Americans have accepted the need for strong due process rules, regardless of the fact that guilty people sometimes go free as a result. We’ve believed that this was a price worth paying in order to preserve a cherished civil liberty: the presumption of innocence.
That view is absolutely correct, as it ensures individuals are judged on their conduct alone, not the prejudices of the mob or popular opinion.
Some bizarrely claim that those who defend due process rights are somehow supporting rape culture and lack symapthy for sexual assault survivors.
That is akin to saying anyone who believes in a fair trial for those accused of murder or theft simply does not care about victims of those injustices.
If one supposes that the only ethical approach to stopping crime is lowering the burden of proof for a conviction, than that means we must transform our entire justice system along those lines. Of course, such a reform would be a catastrophe, with innocents ending up in jail left and right.
We should be able to make progress against sexual assault without trampling over one of our country’s most important civil rights.
Next, many colleges now require male students to obtain “affirmative consent” from their partners when engaging in sexual activity. That means women must give a clear, unambiguous sign they are agreeing to the acts taking place. And consent must come at each stage of the process.
Theoretically, this standard is perfectly fine, but in practice, when applied to the messy, socially awkward world of youth, it can be quite dangerous.
Consider a thought experiment: say two virginal freshmen, John and Jane, have the hots for each other.
One night, the pair share a couple drinks in her dorm; things progress sexually. John notices Jane’s silence, but also the fact she is letting him proceed. In his nervousness and inexperience, he takes this to mean that everything’s fine and they have intercourse.
Under the logic of affirmative consent, because John did not get a clear, enthusiastic signal from his partner, he has committed sexual assault.
There is no room for nuance or shades of gray; the policy does not account for the young man’s inexperience or intentions. The college he attends will punish him severely at once, and the black mark on his record will follow him forever.
This is just not sensible. These two policies — “affirmative consent” and using a “preponderance of the evidence” standard in disciplinary cases — are well intentioned. The feminist movement, in alliance with American colleges, is sincerely trying to tackle an outrageous problem.
But their solutions for doing so are deeply flawed.
Joshua Heath is a Santa Clarita resident.