09:45, March 13 72 0 theguardian.com

2018-03-13 09:45:04
Campus rape victims often find more justice in college than in court

Here is what Saifullah Khan and the woman he stood accused of raping agree on: the two Yale students were at a Halloween party in 2015, and it was a typical college party, with lots of booze. The two went back to the woman’s dorm room. She was so drunk she vomited multiple times. She woke up with bruises on her legs.

Whether the two had consensual sex or whether Mr Khan raped the woman, whose identity is being shielded, was the question in front of a New Haven, Connecticut jury, when the district attorney decided to pursue sexual assault charges against Mr Khan – an unusual move in a case of alleged acquaintance rape on a college campus. After hearing protracted testimony about the woman’s supposedly immodest Halloween costume, her alcohol consumption, and her alleged flirtatious behavior, the jury found Mr Khan not guilty.

The case was being closely watched, as a growing backlash against college campuses adjudicating sexual assault complaints has many, including in the highest reaches of government, wondering why campuses don’t just refuse to get involved and instead turn these cases over to the criminal justice system.

This case makes clear that if the goal is to protect women’s equal rights to education – our right to attend college without the threat of sexual violence, and to go to a school that protects all of its students from bad actors – the criminal justice system is wholly insufficient.

In a criminal proceeding, the stakes are high: lose, and you may wind up in jail (and in some states, if the charges are sufficiently serious, you may lose your life). The bar for guilt, then, is set high as well: guilt beyond a reasonable doubt. That is, a prosecutor has to show something much more than that you probably committed the crime; she has to amass so much evidence that jurors are wholly convinced of your guilt, and that any doubts they may have are far-fetched and unreasonable in the face of the evidence.

Built into this system is the understanding that sometimes – even much of the time – there simply isn’t enough evidence for a conviction, even of someone who probably did it. The classic Blackstone-ism of “It is better that ten guilty persons escape than that one innocent suffer” is the basis of the American criminal justice system, and what makes it a model for the world.

In this case, one could argue that the criminal system worked. If the evidence wasn’t overwhelming enough that jurors still harbored wholly reasonable doubts about Mr Khan’s guilt, then he should have walked, odious as he seems.

But the criminal justice system is also one made by men, with sexism built in. And so rape cases have always been harder to prove than other crimes, because the burden shifts so rapidly to the woman who says she was raped. She’s not supposed to be the one on trial, and yet too often, she is.

Defense lawyers ask what she was wearing, as if a miniskirt signals a willingness to have sex with any man on the planet; they ask if she flirted, as if having a conversation with a man signals willingness to have sex with him; they ask if she was drinking, as if intoxication means a woman will have sex with anyone; they ask about past sexual behavior, as if having sex previously means you are wholly willing to indiscriminately have sex with anyone at any point thereafter.

Rape shield laws, which prevent sexual history from being used against victims in court, were supposed to curb these evidentiary abuses, but as the Khan case shows, they haven’t: the woman was interrogated about her drinking, her texts to Mr Khan, and her Halloween costume. After the trial, defense attorney Norm Pattis said, “She chose that costume knowing she would see Mr Khan that night at the party. As I pointed out during the trial, she could have gone as Cinderella in a long gown. Why did she choose that alluring cat costume?”

It’s shocking, because Mr Pattis is surely smarter than that, and knows that not every woman who has ever worn a sexy Halloween costume was doing so to demonstrate that she would sleep with any man who crossed her path. But the misogyny built into that tactic – the suggestion that the woman was slutty, and therefore must have consented to sex, or perhaps had no right to say no in the first place – still works with juries. That, obviously, needs fixing.

But colleges also need mechanisms to keep badly-behaved and violent students off campus, or at least penalize them accordingly, even if those students are accused of something that doesn’t meet the high threshold for criminal sanctions.

Take hazing, for example. Some cases are sufficiently severe (usually cases where someone dies or is seriously injured) that a few students are brought to trial, and sometimes convicted. But that takes months or even years, and zeros in on a small number of individuals, rather than holding larger groups accountable for enabling abuse of their fellow students. Universities, by contrast, can suspend fraternities and take immediate action to protect students.

When it comes to sexual assault on college campuses, universities are tasked with taking the same approach – or at least they were, under the Obama Administration. The Obama Department of Education encouraged colleges to create transparent and fair procedures for adjudicating sexual misconduct, allowing each student to present evidence to bolster their claims, and recommending a “preponderance of the evidence” standard to determine responsibility.

Under that standard, students who are on two sides of a complaint are treated equally, and a decision-making panel’s job is to look at which way the evidence is most convincing to determine responsibility, and then consequences, which might range from an apology to suspension to expulsion, depending on the offense.

It’s this standard that many critics find unfair – in their telling, expelling a student for rape without the high bar a criminal trial provides is unfair. But the bar isn’t as high because the stakes are not as high.

Yes, suspension or expulsion are serious matters, and might compromise a student’s future. But students potentially face those same penalties for all manner of bad acts on campus, from plagiarism to stealing from a roommate to hazing. Why should sexual assault be treated differently – especially in a way that tips the scales in favor of the accused?

Under Title IX of the Civil Rights Act, women have a right to education equal to that of men. Refusing to deal with sexual violence on campus functionally means that women do not fully enjoy our right to education. Too often, assault victims are the ones who end up dropping out of school if their assailant remains on campus. What else is a rape victim going to do if she has to see the man who assaulted her sitting a few rows down in philosophy class, laughing with his friends in the dining hall, and playing Frisbee on the quad? Telling her to take the case to the police isn’t enough – as the Khan case shows.

It’s true that campus adjudication processes are often flawed. On too many campuses, students aren’t given the sufficient ability to present evidence in their defense, or direct questions at an accuser. Too often, the evidentiary rules are opaque, and students are not given sufficient information about what awaits them in disciplinary hearings.

But the criminal justice system is not a panacea. Our systems are created by human beings, and built into them are our flaws and biases. Nor is it reasonable to expect a single system to adjudicate all manner of antisocial human behavior.

We understand that in our workplaces, an employee may behave in a way that may not quite merit criminal punishment, but would certainly merit termination. Losing a job is a serious consequence, but we accept that it’s a fair outcome, even if the employee’s responsibility for the bad behavior wasn’t proven beyond a reasonable doubt.

Colleges offer far more protection that most workplaces. And their adjudication systems do not have to be identical to the criminal system in order to be appropriate for their environment.

The Yale case shows us just how uphill the battle remains for the minority of women who are willing to walk into a court of law and say they were sexually assaulted. It points to necessary changes in evidentiary rules so that a woman’s outfit isn’t what’s on trial. But it also shows why functional, transparent, parallel systems are necessary on college campuses to make sure justice is done and all students have the right to be there.

  • Jill Filipovic is the author of the The H-Spot: The Feminist Pursuit of Happiness

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