In response to a question as to the seriousness of the problems with campus rape adjudications, FIRE’s Joe Cohn responded that anything said could be used against the accused in a subsequent criminal prosecution. The 5th Amendment problem, that the defense in campus disciplinary proceedings required the abridgement of the right not to bear witness against oneself.
While true, it was neither a strong point nor remotely sufficient. After all, the natural assumption is only the guilty need to invoke it, and, well, it’s an inchoate problem. There was no mention of the natural consequences that flow from a wrongful “conviction.” There was no point made that this is only administrative in name rather than consequence.
When the Democratic representative from Colorado spoke his mind, it was based on the expressed belief that opponents were making a big deal out of the trivial impact of having to transfer schools. How can one possibly compare the horror of rape with the insignificance of forcing the rapist to transfer to a different college?
And so a United States congressman uttered these words:
It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard. Perhaps a likelihood standard…. If I was running a (private college) I might say, well, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual.
It certainly does seem reasonable, if the issue at hand is safeguarding young women from rape. A “20 or 30 percent chance” seems more than enough risk to demand protection from such a horrible violation. And Polis went on:
It seems like we ought to provide more of a legal framework, then, that allows a reasonable likelihood standard or a preponderance of evidence standard. If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”
After making these comments at the public hearing, Robby Soave at Reason asked Polis a few questions, including whether his view would be the same if his son was the student wrongfully accused.
“If my son had a baseless accusation made against him at a university and it was making his life there miserable, I would suggest he transfer or take courses online,” wrote Polis. “It can be a living hell to go through endless campus investigations. I’ve seen this go down, and there really is no winning once the accusation is made even if the process provides formal vindication. Someone who is wrongfully accused needs to do their best to put it behind them and move on. Trying to re-enroll in the same institution would be a constant reminder of the traumatic experience of being the subject of a baseless accusation.
On the one hand, perhaps no one has explained to Rep. Polis that the words “rape” and “sexual assault” no longer mean what he thinks they do. Or that students found to be rapists don’t have the simple option of moving on to another college.
Polis says “I’ve seen this go down,” because politicians hate appearing not to be knowledgeable. It’s the lie that elects. But it’s unlikely that he has, except on the TV screen or a briefing memo from an advocacy group. To a politician, that’s the same as experience. They have a very low threshold for experience.
A friend of mine, elected as a lawmaker after a career as a trial lawyer, told me over a Pabst Blue Ribbon stolen from his intern’s refrigerator that his fellow legislators were utterly clueless when it came to due process.
“They don’t get it at all, and every one of them thinks they’re a fucking genius,” he explained to me.
“So that makes it your job to explain it to them,” I responded.
“Yeah, right. Because the most junior guy in the room gets to tell the big shots who write the laws that make it to the floor how to think,” he replied.
He’s a senior lawmaker now, but he still hasn’t explained due process to anyone. It’s no longer high on his agenda, as his concerns are more geared to member money to pass around to make sure his constituents continue to love him. “If they don’t re-elect me, I can’t do any good,” he once said to me. He’s been re-elected like clockwork. He has yet to do good.
After Jared Polis made his remarkably clueless assertions, a wave crashed across the twitters about his venal disdain for due process. But it struck me as more a matter of Hanlon’s Razor, an aphorism that one should never attribute to malice that which can be adequately explained by stupidity.
Perhaps if Jared Polis understood that his grasp of the issues in play was deeply contorted, that on all ends of the problem he was laboring in ignorance, he would come to the realization that he was clueless and foolish, and would remedy his ignorance by changing his absurd assertions.
But after the words left Polis’ lips, the audience burst into spontaneous applause, conclusively proving that he backed the right horse when he chose the virtues of womanhood over the 80% falsely accused.