Campus Rape Trials: The Deep Bias of the Empirical Scholar

The “claim to fame” of empiricism is that it forces us to let go of our bias, our preconceived notions that we usually chalk up to such nonsensical vagaries as “common sense,” and look at the harsh reality as demonstrated by numbers. Campus sexual assault and rape is such an inflammatory issue as to provide a compelling slate for empiricism. Unfortunately, one of the foremost proponents, Kansas Lawprof (who just received tenure) Corey Rayburn Yung, reveals that it just can’t be done.

In a recent post at Concurring Opinions, Yung castigated George Will for politicizing the issue.  That view was challenged as being merely the opposite political view of Will, to which Yung responded:

I do think that Will and others are “downplaying” rape on college campuses, but that doesn’t mean I support any particular assessment regarding the magnitude of the problem. My point is that the authors are either assuming their conclusions or cherry-picking data among conflicting reports. That is downplaying regardless of the true level of rape on campuses.

His criticism of Will wasn’t unfounded, but his professed agnosticism toward “any particular assessment” while concluding that Will was “downplaying” rather than being inaccurate revealed that he took sides in the absence of reliable data and definitions as well.  It’s dangerous business to criticize others for being blinded by politics while holding yourself out as a paragon of empirical purity.

Yung has now taken the next step of offering the mechanism by which campus accusations of rape and sexual assault, whatever they may be, should be adjudicated.  His purpose in doing so appears to right a rather curious wrong:

Since the Obama administration increased its focus on campus sexual assault in January 2014, there has been a steady flow of articles criticizing university sexual assault proceedings. Authors have decried innocent men being railroaded through a system with limited procedural protections and a low burden of proof. Based upon those sources, one would think that prosecution, expulsion, and punishment of innocent men was the norm. Meanwhile, case after case surfaces where the university either failed to act or acted in a woefully inadequate manner.

In this opening paragraph, Yung pulls a dreaded “George Will” by loading his language (“railroaded”?), creating a strawman (“punishment of innocent men was the norm”) and offering no cites to support his issue (“case after case surfaces”).  An ignominious start indeed.

Yung then cherry picks Yale and the curious case of Emma Sulkowicz, a Columbia student, whose accused “rapist” was found not responsible by the University, which apparently proves the University failed.  He bolsters this with statistics taken from the Rape, Abuse & Incest National Network, “the nation’s largest anti-sexual assault organization,” which might not be the best source of unbiased evidence.

If an attempted murderer was left on campus with his or her intended victim, we would be horrified. If a student brutally assaulted another, we would want the university to take action to protect the victim. Even in the non-criminal cases of sexual harassment at universities, defendants are separated from victims without waiting for a civil suit to be completed in the plaintiff’s favor. As a matter of simple humanity, universities need to protect rape victims by having a mechanism to remove/punish rapists.

Aside from the appeal to emotion, “simple humanity,” of protecting “rape victims” by removing/punishing “rapists” in the absence of adjudication, the comparison to murder (and later, to “alleged murderers, brawlers, burglars, and other violent criminals”) ignores certain realities, that there is hard evidence, independent witnesses, proof, that a crime occurred.

While the nature of rape is different, in that it tends not to occur in front of witnesses, and doesn’t always have evidence to distinguish consensual sex from rape, in some measure due to the ever-changing definition of rape, this doesn’t make the analogy any more apt. It’s unconvincing to compare a murder, a dead body being hard to dispute, with an alleged rape, reported days or months later based on change of heart or based on the number of beers the participants shared.

Does this mean universities have designed effective and fair sexual assault tribunals? Absolutely not. I have been critical of the uneven protections and ad hoc processes often used. However, simply letting the criminal justice system resolve the matter, as many have proposed, is unrealistic and wrong.

The linked HuffPo article, by women’s rights advocate Tyler Kingkade, offered to show that the criminal justice system is apparently worse than the colleges toward prosecuting rape is perhaps the telltale of how fatuous a claim this is. The police won’t arrest and prosecutors won’t prosecute alleged rapists just because there is no evidence whatsoever!  Don’t they know that if a woman says she was raped, she was raped?  Don’t they know that whoever a woman accuses of rape is a rapist? A RAPIST! Clearly, this is not a system to be trusted.

In the comments to Yung’s post, Orin Kerr asks what the “’effective and fair sexual assault tribunal’ you advocate would look like? What burden of proof, evidentiary standards, counsel, judges, etc. would you have?”  Yung provides his list:

Defendant can bring counsel, but no Gideon right to counsel

For anyone curious, as I am, about how a clash between race and gender would pan out in the halls of academia, this is the answer. While racial diversity is sought by providing need-based scholarships to the poor, it ends at the accusation of rape.

Fact finding is limited to student conduct policies in place (no ex post facto application)

The rejection of ex post facto is good, but defining adjudication based on student conduct policies, the efficacy of which is left to the whims of university folks, is absolutely nuts. They can define rape as unwanted staring in the Student Handbook.

No right to compel victim to testify (even though the victim almost always has to)

The current trend is that it’s too painful to force an accuser to testify, to be questioned by her rapist, even though this puts the conclusion first and is perhaps the most intellectually absurd idea around.  But if you close your eyes tight enough, and scream “lalalala,” you can pretend this makes sense in some alternate universe.  Not even the qualification, “though the victim almost always has to,” saves this,

Fact-finder should be a person with independent authority (Title IX coordinator might work); no student juries

I have no clue what this means. So no jury of an accused’s peers, but no qualifications to adjudicate?

Evidence rules should generally match those of arbitration proceedings

This is something of a trick for the unwary, as arbitration doesn’t use the rules of evidence.

Rape shield rules should apply

Rape shield rules were once controversial, as they deprive an accused of potentially relevant evidence in the name of political correctness. Ironically, this is the least controversial piece today, given how far the train has gone off the tracks.

Some form of determinant punishment guidelines should guide punishment

It’s unclear whether this means a rote sentence, without regard to mitigation and proportionality, or just a minimum/maximum punishment.  Either way, it offers no guidance without knowing what determinant punishment is being proposed.

The ultimate factual question is whether the student code of conduct or honor code was violated

While the accused will be tainted in perpetuity as being a “rapist,” a crime of heinous magnitude, the basis will be its definition in a school’s honor code, such as failure to obtain written advance consent with a 3-day post-coital period of retraction.

There would be no issue if this was promoted as one newly-tenured lawprof’s politicized vision of how to address his presumed epidemic of rape and sexual assault on campus.  The internet is littered with such visions, though they usually appear at Jezebel or Slate XX factor, where clearly biased advocates try to sell their wares to the choir.

But it’s not acceptable from a lawprof who wants to wear the clothing of an unbiased empiricist, while promoting such deeply-biased views. Yung is allowed his views as to what constitutes an “effective and fair sexual assault tribunal.”  He’s just not allowed to claim to be the unpoliticized voice of empirical reason by trying to conceal his bias behind scholarly pretense.  And lest my assessment be deemed uncharitable, as it was last time, this is about as charitable as I can muster.


27 thoughts on “Campus Rape Trials: The Deep Bias of the Empirical Scholar

  1. Jeff

    Yet again we are dealing with someone with a completely backward set of priorities, which is more plainly set forth in his own comments to his article. In his comments, he implies that false positives and false negatives are more or less equally bad outcomes, but that avoiding false positives are less important than whether alleged rapists are removed from the school/alleged victims. The removal of the alleged offender is a more important goal than fairness, consistency, due process and the presumption of innocence. If we shared his unreasonable priorities, then we would agree with his analysis and they would appear (as they surely do to him) free from bias.

      1. david

        What’s more annoying – someone (badly) paraphrasing what you’ve just written and presenting it like its an original idea / comment, or the unamusing whackjobs? Or is it the obviously bored drop-ins from a different country who aren’t even lawyers? Personally, I like bacon.

            1. John Barleycorn

              David if you are going to go with where the gerbils hide then throw in bacon and top it off with revisionist western movie characters while sticking your nose up the esteemed ones ass ones while slamming the passing wayward SJ back page souls such as Jeff, giving the wheel a spin, you could have at lest been creative enough to have figured out a way to incorporate George Will and Corey Rayburn Yung drinking virgin gerbils at happy hour or had them eating roasted gerbils in-between news conferences in front of the Mongolian studies department.

              The subject matter of this post is becoming nearly as cliche and predictable as herding guinea pigs without vodka.

            2. John Barleycorn

              No pain no whack. No whack no “job”.

              Speaking to this post and the many that you have preceded it with on this subject matter,
              I give you credit for treading the slippery slopes (not to compliment your ass crack hygiene) but your persistence on this subject as well as your occasional forays into the dangers of current and future “tech law” being written by default via court precedents are two reasonably recent themes that are very worthy of as much light and vodka when needed as can be mustered.


            3. SHG Post author

              I’m going to tell you a secret: I’m pretty pissed that I feel constrained to persist in writing about this nonsense, as well as revenge porn. I see an extremely dangerous trend of ideological and language control happening, strong support from the ideological advocates, and nearly no one questioning or challenging the politically correct insanity.

              Where are the lawprofs to keep the other lawprofs honest? Scares shitless of being labeled misogynists and rape apologists, because that’s death in the Academy. And with no one else calling bullshit, what else can I do? I know that I’m hardly alone in recognizing this dangerous trend, but I’m really tired of doing all the heavy lifting by myself. It would be awfully nice to have some others stand up and be heard.

  2. skullcowboy

    And then there are those 4 evil misogynist male students at NCSU who DARED to invent a nail polish that detected certain drugs in a drink. Shaming poor women by deeming them sluts by expecting them to wear nail polish in the first place. Or something.

    My head hurts.

    1. SHG Post author

      I read some of the most appallingly foolish posts about that. How horrible that they should create something that women can use to protect themselves. Unreal. It makes my head hurt too.

  3. Sam

    Campus Discipline hearing boards have as much constitutionality then 3rd world banana republics. State University’s for the most part run hands off from the state and federal government under the doctrine of academic freedom. Having gone thru a hearing board a couple of years ago one thing I noticed is that there is no separation of powers the same people who charged U are the same people you are to convince that U did not do it. The Dean controls everything from charges to running the hearing to final adjudication and its been that way for 300 hundred years since Harvard was founded in the 1600s

    1. SHG Post author

      Each school handles its own internal discipline, and some are good while others aren’t. It’s inaccurate to lump them together. That said, none afford full due process to an accused. While this is never good, it’s far worse when the accusation is a crime, such as rape.

      This isn’t to say that rapists should get away with it, but that they should be afforded all due process and, if proven guilty beyond a reasonable doubt, convicted. That’s how crimes in the United States are supposed to work.

      1. anne12

        @SHG I appreciate good, balanced comments like yours. If we make them often enough, maybe eventually they will be heard and college students will end up with a system that works better for both accusers and accused. As we well know, it’s not working for anyone right now. It seems wiser to spend the $$ on making the police and judicial systems we already have in place better rather than creating a parallel system on college campuses.

  4. Unregardless

    Every school should immediately refer any reports of serious crimes against their students to law enforcement for a criminal investigation. They are not qualified, nor should they strive to be, to properly handle such investigations. However, I don’t see why a school should not also hold the accused accountable to the institution’s code of honor or whatever internal discipline procedure they use. While the lack of due process may be lamentable, why should criminal accusations be treated differently in the context of administrative discipline?

    1. SHG Post author

      While the lack of due process may be lamentable,

      Lamentable? That’s not how it works. Or at least not how it’s supposed to work. Do you understand what “due process” is? It appears you have no clue.

      why should criminal accusations be treated differently in the context of administrative discipline?

      Because they are criminal accusations, subjecting the accused to significant punishment by an institution bound to honor their constitutional rights. Because this is the United States, where we afford rights to the accused, where we don’t hold secret hearings in star chambers, regardless of what we choose to call them, where they denied a chance to defend themselves and presumed guilty.

      1. John Neff

        In a criminal case the accused is entitled to due process.

        In a civil case both the plaintiff and the defendant are entitiled to due process.

        In a university tribunal neither the accused or the accusor are entitiled to due process. This seems to me to be 5th ammendent nullification but it is possible it is much more complicated.

        In any case this seems like the opening gun for a lot of lawsuits.

        1. SHG Post author

          To the contrary, public institutions, and institutions that receive public funds, are required to provide due process in disciplinary proceedings. You might want to take a look at Goss v. Lopez 419 U.S. 565 (1975) and Dixon v. Alabama 294 F. 2d 150 (5th Cir. 1961). Even fully private colleges are required to provide due process to the extent their actions aren’t arbitrary and the students are provided fair and reasonable procedures. Kwiatkowski v. Ithaca College, 368 N.Y.S. 2d 973 (N.Y. Sp. Ct. 1975).

          I would have expected you to be more careful about making such a glaring misstatement of the law.

      2. Unregardless

        My point was that the punishments available to a school to impose for a serious crime are no more significant than for any other behavior they consider sufficiently unwholesome. Given your concession that “none afford full due process to an accused” I don’t see why it’s worse for a crime than, say, cheating when the stakes are the same. In this context of this discussion it was the wrong question. I apologize.

        1. SHG Post author

          Now I understand what you were getting at. Not only does the law distinguish between what it deems routine academic infractions and serious violations as to the handling, but some infractions are purely academic: cheating on a test, plagiarizing on a paper, for example. These are left to institutions to address, as they don’t implicate conduct that is recognized by society as crimes.

          When someone is “convicted” of a crime by an academic disciplinary tribunal, not only does the person suffer whatever consequences are imposed (which tend to be more severe than getting an F on a test), but the taint of “conviction” follows them regardless of whether they were convicted upon solid evidence and after a full and fair opportunity to defend themselves or by some kangaroo court. The significance of the taint remains regardless of how the “conviction” was obtained.

          It’s one thing to be labeled a rapist after being convicted with due process of being a rapist. It’s another when you will be labeled a rapist for the rest of your life without having an opportunity to defend yourself.

  5. Fubar

    I see an extremely dangerous trend of ideological and language control happening, strong support from the ideological advocates, and nearly no one questioning or challenging the politically correct insanity.

    A duly recorded accusation wherein all due process was observed — from the transcript of proceedings in an “effective and fair sexual assault tribunal” conducted by the Department of Grammatical Gender Sensitivity, Microaggressions and Whoopi in Applied Melodramatic Arts, at an as yet unnamed university [1]:

    “It was rape, rapacious rape!” she
    Cried. “After he donned his black cape, he
    Ordered ‘Peel me a grape!’
    And if that’s not rape-rape,
    At least it was language most rapey!”

    FN 1: Any transcriptional inaccuracies are due to the supervening cause of a cheap, but decent, red.

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