[Rushtalk] A Terrible College Case Shows The High Cost of 'Believe Women'

Carl Spitzer {C Juno} cwsiv at juno.com
Sat Oct 20 09:04:47 MDT 2018


A Terrible College Case Shows The High Cost of 'Believe Women'

UC Santa Barbara Case Demonstrates Why

By DAVID FRENCH October 13, 2018 5:30 AM There is no substitute for
evidence and due process

Through much of the last month, the American people have been treated to
a version of the emotional and ideological argument that's dominated the
American academy for much of the last ten years. The argument goes
something like this: Women rarely lie about rape. Thus, the failure of
criminal or civil justice systems to achieve overwhelming rates of
conviction or impose liability at the rates of predation means that
fundamental reform is mandatory.

Consequently, we must make it easier for women to bring claims, protect
them from the rigors of proving claims, and utilize decision-makers
trained to understand and respond to the unique trauma of victims.
Moreover, when considering sexual-assault claims outside of courts,
understand that due process is less important when a man's liberty isn't
at stake. After all, a campus court isn't a criminal trial. It's an
evaluation of academic suitability.

The result of this argument has been wholesale national "reform" -- part
of it mandated by the Obama administration's Department of Education,
and part of it willingly undertaken by colleges themselves -- that has
caused universities to lower burdens of proof, channel serious claims
into summary proceedings, restrict the ability to cross-examine
witnesses, and even limit access to evidence in an effort to streamline
the process of punishing sex offenders.

It's been a disaster.

>From coast to coast, accused students -- typically men punished for
sexual assault with barely a chance to defend themselves -- are filing
lawsuits containing often-shocking claims. Judges, accustomed to the
value of due process, often find themselves stunned at the unfairness of
campus proceedings. And if you think that wrongful convictions for
sexual assault aren't serious because the men don't go to prison, well
then talk to the young men whose careers and reputations are shattered
before they've had a chance to build a life.

In the days after the Brett Kavanaugh confirmation, when the op-ed pages
were still filled with examples of women's rage, a California state
court of appeals handed down a decision in a case against the University
of California–Santa Barbara that should remind us all of the high costs
of a rush to judgment. It should remind us all of the value of due
process.

The facts of the case are relatively simple. After a night of drinking,
a female student ("Jane Roe") fell asleep on a mattress that was pressed
up against a living room wall. Later that evening, a male student ("John
Doe") became intoxicated and lay down on the same mattress. She was
under the covers. He was fully clothed on top of the covers, with his
back to Jane. There were two eyewitnesses sitting on a couch, talking
less than three feet away.

Jane testified that she woke up to discover that John was molesting her.
She was too terrified at first to cry out and then finally, when the
assault ended, screamed for everyone to get out of the apartment. John
denied the claims and instead claimed that he first heard Jane's story
when "she woke [him] up by basically yelling about someone hurting her."

The two eyewitnesses testified that it would be "physically impossible"
and "not physically possible" for Jane's claims to be correct. They saw
Jane wake up "confused, disoriented, and mumbling in foreign languages."
They thought she was having a bad dream.

Jane reported the alleged assault to police, and two days later
submitted to an exam by the city's Sexual Assault Response Team. The
police did not take any action against John. The university, however,
did. After a hearing, it sentenced him to a two-year (eight-quarter)
suspension.

The university hearing was a carnival funhouse of due-process
violations. First, the university allowed a detective to testify about a
report that allegedly indicated that "bruising/laceration [was] noted in
the anal area" without producing the actual report. The parts of the
report the university did produce did not contain any such language.
Moreover, the detective couldn't say whether the finding could have any
other cause. Testifying about a report the accused wasn't able to see
violates the "best evidence rule" -- an evidentiary standard that
"precludes oral testimony to prove the content of a writing."

That's basic stuff, yet it was only the beginning of the university's
problems. Next, the university only disclosed to John the day before the
hearing the fact that Jane was taking an antidepressant called Viibryd.
When John tried to ask Jane about the consequences of mixing Viibryd and
alcohol, she declined to answer the question. When John tried to
introduce evidence that Viibryd "has many side-effects" that "become
severe when alcohol is consumed . . . such as hallucinations and sleep
paralysis and night terrors" the university declined to consider it. The
reason? He couldn't produce a qualified expert.

As the court of appeals noted, this "placed John in a catch-22; he
learned the name of the medication Jane was taking too late to allow him
to obtain an expert opinion, but the Committee precluded John from
offering evidence of the side effects of Viibryd without an expert."

And that's not all. John was forced to represent himself. His lawyer
could only advise and support, but the university allowed its general
counsel to "actively participate and to make formal evidentiary
objections." As a consequence, "A student, whose counsel cannot actively
participate, is set up for failure because he or she lacks the legal
training and experience to respond effectively to formal evidentiary
objections."

So, let's review -- the university violated a basic rule of evidence,
withheld key information from John until the day before the hearing,
refused to let him question the accuser about that information, and then
allowed its lawyer to render objections to John's case. The court's
conclusion was stinging: "It is ironic," said the court "that an
institution of higher learning, where American history and government
are taught, should stray so far from the principles that underlie our
democracy."

In other words, the university stacked the deck. It biased the
proceedings against John, and in so doing violated his fundamental
constitutional rights. Note that the court did not excuse these
violations because it was ruling on a mere academic hearing. Bad
processes hurt people, even when those bad processes don't result in
prison.

I'm singling out the UCSB case simply because it is so recent. It's but
one example among many. In fact, two weeks before the California court
handed down its opinion, the Seventh Circuit Court of Appeals heard
arguments in a case that Brooklyn College professor K. C. Johnson --
perhaps the nation's foremost expert on Title IX adjudications -- called
"unusually troubling, even in the Title IX realm."

The guilty finding led to a loss of the accused student's ROTC
scholarship and Navy career, after a process in which the accuser
neither appeared at the hearing to speak and answer questions, but
didn't even submit a statement to the hearing. (The evidence in the case
was a Title IX investigator's report and a statement written on the
accuser's behalf by a university counselor.) The complaint alleged that
the accused student had no chance to present exculpatory witnesses,
including a roommate who said that the alleged assault never occurred.

As Judge [Amy Coney] Barrett noted, "It was a credibility contest in
which you not only did not hear directly from [the accuser], you didn't
even read words that she had written."

I wonder if that student is consoled that its "only" his Navy career at
stake. The goal of any adjudication is justice, and centuries of
experience have taught us that justice is elusive when due process is
denied. We cannot have our culture believe that the way of the
university is the way forward for our nation. The guiding principles
should be clear. Respect women and hear their claims. But "believe
women"? No, believe evidence, and give every accused a fair opportunity
to defend his liberty, his education, and his career.

www.nationalreview.com/20...gh-cost-of-believe-women/ 
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