The most difficult book I have ever read was Jon Krakauer’s work, Missoula. It is the only book I can ever remember having to stop from reading at times because I found it incredibly difficult to emotionally process the material. In Missoula, Krakauer details the gut-wrenching stories of several women in the college town who claimed to be victims of rape.
To say the problem of rape on college campuses is widespread would be a colossal understatement. A typical woman of college age ranging from 18 to 24 represents the segment of the population most likely to be sexually assaulted. Moreover, men are victimized far more than most would probably realize. If it is even possible to fathom given the greater extent of the problem of sexual assault against women, male victims have even fewer resources and face greater stigma.
How we as a society try to remedy this enormous problem is through a criminal justice system that places the burden of proof on the accuser and grants significant protections for the accused. As such, in cases of rape the fact the victim bears most of the burden makes the process extraordinarily painful. The Founders established the justice system in this way, however, for good reason.
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Prior to the U.S. system, the rule of law was based on the idea the monarch’s word was absolute. The belief was God had chosen the monarchs to rule — a claim referred to as “the divine right of kings” — and therefore, to challenge the monarch’s word was to challenge God’s. This belief system was kept in place well into the 18th century and the tyranny it spawned was something our Founders were seeking to avoid.
Some Americans today might shake their heads at this claim of divine right and think our justice system no longer needs to be concerned with such foolishness in the distant past. Unfortunately, such a belief would be a mistake. Look no further than the cult of personality around our current president to understand why. The president’s supporters have generated mass propaganda films claiming he is chosen by God and thus to challenge his policies or acts is to challenge the will of God. The president is well aware of his cult following and how it could be used to avoid even criminal accountability. Therefore, it should be abundantly clear the continued value of a due process system that relies not on the word of a single administrator, but on objective, evidence-based procedures.
On college campuses, Krakauer and others are fiercely debating what sort of due process procedures college universities should utilize when investigating claims of sexual assault and determining whether expulsion from the college is warranted. The debate revolves around a law passed in 1972 called Title IX, which bars sex discrimination at schools that receive federal funding. In 2011, the Obama administration issued a set of formal guidance procedures for colleges to implement. Among other things, the Obama-era guidelines strongly discouraged use of the cross-examination of accusers. The current Secretary of Education however, has dismissed the Obama era guidelines and released sweeping overhauls to how colleges process sexual assault claims.
The most consequential changes in the guidelines are schools will now be able to choose between the previous “preponderance of the evidence standard,” and a new higher bar of “clear and convincing” evidence. Furthermore, the new guidelines will also grant the accused the right, though through a third party, to cross-examine their accusers (although questioning the accuser’s sexual history will be prohibited).
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The backlash to allowing cross-examination has been particularly pronounced and in my opinion counterproductive. So that I am clear, I fully realize that because I have never been a victim, because I am not the one most under threat, it makes it easier for me to stand on principle. Regardless of my or anyone’s personal background however, commitment to the principle that due process be evidence-based and not at the discretion of administrators who often abuse that power is vital to justice at large.
When reading Missoula, I found myself outraged by how victims were treated by the police, prosecutors, and the public. The outrage made me want to cut through all due process and exact vengeance on behalf of the victims against those I perceived to be in the wrong. However, I am immensely thankful the Constitution does not allow me, or others, to do this. In fact, prior to the Secretary of Education’s new guidelines, courts had already struck the right balance in denying direct cross-examination where the accused questions the accuser, yet still employing the benefit that adversarial questioning offers in service of the truth. Moreover, the damage of having a weakened due process system where college administrators can dispense justice based on their own volition is real and should not be ignored. The better path to justice, but often more excruciatingly difficult for victims, is reliance on objective, evidence-based processes, not on personal discretion.
Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.