There have been a number of interesting and important ideas bandied about on the pressing problem of campus rape and sexual assault discipline, in addition to the tepid grasp of the harm deriving from a deeply screwed up process.  Since this is still in its formative stage, and real lives are at risk, it continues to be worth discussing.

To a large extent, the confusion derives from misunderstandings, either because the people discussing the issue lack sufficient knowledge and background in what they’re talking about (because that rarely happens on the internets) or they use words and concepts with which they’re unfamiliar, and choose to define them (or undefine them, if that makes their arguments work better), and no one explains why they’re not allowed to just make stuff up. So, this seems like an opportunity to try to unscrew up some of the nonsense.

Don’t Be Hating On The Inquisitor

In a twit, K.C. Johnson pulled out a bit from lawprof Paul Gowder’s comment to Tamara Lave’s post at PrawfsBlawg that looks, well, just horribly bad.

Honestly, I’m not even sure why we need an adversary process at all. In light of the fact that the fundamental purpose of such process is to exclude individuals who prey on these closed communities, it seems reasonable as a first-pass to me to have an inquisitorial process in which accusations are investigated by neutral trained professional staff, and then action is taken based on an overall conclusion as to the impact that that student’s presence would have on the learning environment.

Posted by: Paul Gowder | Sep 3, 2015 12:49:05 PM

The notion of an “inquisitor” has a bad rap, harkening back to the Spanish Inquisition, though in other countries, the inquisitorial system is the norm and, if done properly, isn’t such a terrible thing. By “done properly,” I mean that the inquisitor is truly a “neutral trained” person.

Gowder’s idea sounds horrible for two reasons, the first being that he contorts the purpose by saying “[I]n light of the fact that the fundamental purpose of such process is to exclude individuals who prey on these closed communities.” That’s one of those “begging the question” assertions, since no one knows whether the accused “preys” on anyone until after it has been determined that a wrong has occurred and the accused is the person who committed the wrong.

But worse, Gowder conflates the harm envisioned by our imaginings of dangerous rapists with the reality of what colleges call sexual assault. Assuming Gowder’s right, then most of the accused shouldn’t be subject to inquisition because their conduct has nothing to do with preying on anyone.  Claims of consensual sex with, say, post-hoc regret, or a beer and a claim of intoxication, don’t fit his “preying” fact, so nothing to see here, everybody go home.

The other part of his inquisitorial notion is that, as a “first pass,” with the next pass inclusive of appropriate due process protections, it should vet the bad claims out if the inquisitor was, indeed, neutral and trained. The problem is that they are trained, but trained to condemn, rationalize common excuses for evidentiary lapses, see rape and sexual assault in every contact, and believe the accuser no matter what.  That ain’t exactly neutral.

So the concept might have legs, but it’s impossible to trust the execution since wild bias has infiltrated the system. And it can’t be left to academics to decide that their “burn the witch” attitude is perfectly neutral and reasonable, since they always attribute intellectual reasonableness to their choices no matter how prejudiced, myopic and self-serving they are.

Gowder’s inquisitorial system might have gone over with less controversy had he called it something less disturbing and recognized that its only function would be to vet out false or unsupportable claims so that only allegations with some minimal potential merit proceed.  Like a grand jury, perhaps, since we all know how well that experiment has worked out lately.

Mere Accusations and Legally Sufficient Proof

Also at Lave’s Prawfs post, there is a tiff between commenters Brad and Derek Tokaz over whether the accuser’s claim is a “mere accusation” or legally sufficient evidence.  It’s really not that hard a distinction to make.

The prerequisite for a “mere accusation” to become evidence is that it be offered under oath. Whether individual campus procedures include putting the accuser under oath is sui generis, a question that can only be answered by looking at the specific process employed. If not, then it’s conclusively a mere accusation.

Even if oaths are administered, there is a question whether an oath carries the weight that it did when it was determined to be the dividing line between cheap talk and testimonial evidence. People once took their oaths seriously. Do they still? Not so much.  Such archaic niceties as oaths just don’t carry the level of seriousness they once did.

The second distinction between “mere accusations” and testimonial evidence is whether the testimony is subject to the crucible of meaningful cross-examination. Tokaz makes this a separate, secondary issue. It’s not. Direct examination without the opportunity for cross-examination is bupkis.

The third distinction was mentioned as part of the second, “meaningful” cross-examination, rather than only those questions that don’t traumatize the accuser. The point of cross-examination is to challenge the testimony. If the cross-examiner is either inept at cross, or disinclined to question claims because it might make the accuser sad, then it’s not meaningful and the testimony has no evidentiary value.

As a corollary, the testing of testimony also includes the ability to introduce evidence to prove that an accuser’s claims are false. Emails, texts, statements to third parties, all can be used to show that an accuser’s current claim of rape was formerly a claim of a great date and consensual intimacy. If an accused isn’t allowed to introduce evidence to reveal an accuser’s testimony to be false, then the direct testimony is of no evidentiary value.

Finally, there is the “weight and sufficiency” problem, stemming from conclusory allegations, such as “I was raped,” or “I was drunk,” or “I didn’t consent.” These are not factual descriptions of what transpired, but individual impressions of what the factual conduct meant. Are they adequate to prove that a wrong happened? Should they be? No. And yet, these suffice regularly.

So is it a mere accusation or testimonial evidence? It depends on the campus procedures.

Assault Doesn’t Mean What you Think It Means

At Inside Higher Ed, Jake New makes a point that I’ve been pushing for a long time, that an insurmountable problem with studies and discussion of the “campus rape epidemic” is definitional.  The post deals directly with a new survey that appears to confirm the 1 in 5 statistic of women subject to “unwanted sexual conduct.”

Note that three word phrase. Not rape. Not sexual assault. It’s not that those words are well-defined, but even they are too limiting for the purpose of this survey’s outcome. Unwanted sexual conduct is the criteria.

“We think the one-in-five statistic is important,” [Sarah McMahon, associate director of the Rutgers Center on Violence Against Women and Children and the lead researcher on the survey] said. “We know sexual violence means different things to different individuals, so we used a broad definition. We know all forms of sexual violence are problematic and have serious repercussions.”

“We know”? We know “all forms of sexual violence”?  Unwanted sexual conduct is about as meaningless a phrase as possible, which is why it’s the politically palatable way in which academics who are wildly biased toward proving their outcome use it. It has nothing to do with violence, a word tossed in to further obfuscate.  This is why we can’t have nice things, and why every survey purporting to prove the epidemic of sexual assault on campus is total malarky.

“People who deny this issue don’t believe something like an unwanted kiss is harmful, but it is,” Dunn said. “I think there’s an idea in our society that says if a man’s not using a gun or beating a woman, then it’s OK to be pushy and aggressive, or to wait until she’s drunk. We really think of some sexual aggression as really not that bad, and that mentality extends to the survivors as well.”

Well no. Not at all. The guy who tries to kiss his date good night, when his date decides, whether at the moment or a few years later, that she didn’t care to be kissed doesn’t make it harmful or violent. It makes it dating.  This conflates trivial feelz with harm.

Every first year law student learns in torts about battery, non-consensual touching. It’s a tort! Sue the bastard. The next week, they learn that while it meets one piece of the definition, it fails another. Where there is no cognizable harm, there is no damage. Where there is no damage, there is no cause of action. De minimis non curat lex, bro.

The rhetoric of victimization does not turn every unpleasant sensation into a rape. You’re a survivor of an attempt to hold your hand? That’s what it’s come to, what these researchers intend to include to prove their desired outcomes?  The only thing preventing these surveys from being 100% is that most women aren’t such delicate teacups that they’re willing to feed into this insanity.

Perhaps the better way to interpret the outcome of these result-oriented attempts to prove every woman is being constantly raped is that 80% of all women think these surveys are so utterly ridiculous that they won’t go along with the conflation of “sexually unwanted conduct” with conduct that any reasonable person will consider unproblematic.

That’s actually a good sign, that only one in five women are flaky enough to play along with these definitionally-challenged researchers. The rest aren’t going to play the victim game. You go, girls.

Is that it?

Of course not, but this post is already pretty damn long. Feel free to raise additional points in the comments. And anyone who thinks this post makes me a rape apologist, hi.