There was a quote in Bret Stephens’ dreaded op-ed about campus kangaroo courts that struck me as extremely dubious (and more than a wee bit self-aggrandizing), and likely to whip up some backlash.
Kimberly Lau, an attorney at Warshaw Burstein, has represented over 100 defendants in campus sexual-assault cases. She described to me sitting with a client in a campus tribunal where she was forbidden from speaking. The accuser appeared via Skype but did not face the accused.
There are a handful of lawyers who have taken up the representation of the accused in Title IX campus sex hearings. They tend to be very self-promotional, some even shamelessly so. I don’t know Lau and don’t mean to impugn her at all.
I asked Lau how many of her cases were ultimately resolved through exoneration or a financial settlement. She estimated about 90 percent. But that, she adds, is the good fortune only of those who can afford high-powered representation.
Wait, what? Ninety percent? That’s . . . astounding. When you take into account that the lawyer sits there silently, unable to open, cross or close, it’s damn near miraculous. In the complete absence of due process, Lau has a 90% success rate? It could be that her clients are the most palpably innocent accuseds ever, or that her clients’ accusers are the biggest, most incredible, liars ever, but still. Of course, they have “high-powered representation,” even if she says so herself.
But this doesn’t further the argument that the deprivation of due process is a problem in need of fixing. Quite the contrary.
Whether one agrees with a preponderance-of-evidence standard turns largely on whether one thinks that women are more likely to lie about sexual abuse, or men more likely to lie about consent.
If 90 percent of represented accused men get exonerated, as Mr. Stephens writes, it seems that a lot of doubt is being raised, playing on an age-old stereotype that women cannot be trusted to tell the truth.
What is almost invariably missed by those who believe that the standard of proof is the problem here is that under the usual she said/he said scenario of what transpired in a private setting where no neutral witnesses can testify as to what transpired, that the accused must win unless he comes off as deceitful. The answer is obvious to a trial lawyer: if the finder of fact is confronted with two credible witnesses telling irreconcilable stories, then the accuser has failed to overcome the burden of proof, even under the preponderance standard. They’re at 50/50, and that’s not good enough.
It does not mean, as the irrational leap of logic suggests, that women cannot be trusted to tell the truth. It means that women telling the truth are neither more, nor less, believable than men telling the truth. Moreover, if the single investigator or the critical feminist theory prof is exonerating the accused for this reason, then they are doing an exceptionally fine job.
Could the 90% claim be based on this, that the preponderance standard works fine, perhaps too well, if the accused is represented by mute counsel? It’s possible, but highly unlikely. Much as the she said/he said scenario happens, there is usually additional evidence as well, from friends to whom the parties spoke, to texts between the parties, to observers beforehand and observers afterward.
Rarely is the issue whether sex happened, but the surrounding circumstances. And there is usually something, some admission, some text, some observation, that tilts the balance one way or the other. So how then does having a “high-powered” lawyer sitting silently in the room disrupt this balance? If we assume that 90% of the accusers aren’t lying, then something is horribly wrong with this scenario. Remember, the point of a system isn’t to free the guilty, but to not convict the innocent.