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Harvard Law School: Standing up against the Obama administration’s Title IX rape hysteria

February 17, 2015

My latest blog post for the Independent Women’s Forum:

The only sane spot on campus

Now, Halley has a powerful new article in the Harvard Law Review Forum. .

Her article, titled “Trading the Megaphone for the Gavel in Title IX Enforcement,” argues that it’s perfectly fine for feminists to advocate solely for alleged victims in campus sexual-harassment cases without paying attention to any rights of the accused. One-sidedness is the whole point of any advocacy, she points out. But when feminist advocates became part of government—as they did when the Obama administration’s Education Department started staffing its Office of Civil Rights (OCR), which enforces Title IX, the federal banning sex discrimination on campuses—the feminists began forcing their advocacy goals onto colleges and universities that must comply with Title IX. They’re the ones who issued the regulations that forced Harvard and other universities to set up draconian and one-sided procedures for judging sex-assault cases.

Halley goes on to catalogue a range of difficult-to-prove-anything cases: rape claims where both parties have voluntarily gotten so drunk that they can’t remember the events very well, or romantic breakups where the woman accuses her former partner of repeated abuse, for example. In those cases, the new Title IX-mandated policies would almost invariably work injustice on the accused, who would be practically unable to defend himself. She writes:

“In a related development, OCR increasingly implies that the only adequate “interim measure” that can protect a complainant in the Title IX process is the exclusion of the accused person from campus pending resolution of the complaint. To be sure, in these cases the accused may eventually be found to be responsible for violations, sometimes very serious ones. But advocates and the OCR are arguing that all complainants are trauma victims subject to continuing trauma if the persons they accuse continue in school: merely “seeing” the harasser is deemed traumatic.”

Halley continues:

“Denial and a taboo on blaming the victim have been the favored strategies among advocates: will their allure carry over into governance? My own hope is that governance feminists designing and running a new campus sexual assault establishment can acknowledge the full weight of the responsibility they are taking on.”

Posted by Charlotte Allen

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9 Comments
  1. georgefinnegan permalink

    This is a useless article. Why was this regurgitated here? Universities do not incarcerate people. Therefore, they do not have to maintain the same ‘due process’ that the government does. What is happening under Title IX is perfectly fine.

    • aliasclio permalink

      Really? It’s acceptable for an accused rapist to be perhaps ejected from school without finishing his degree; to be perhaps unwelcome at any university ever to finish it anywhere; to be branded a rapist; and perhaps to be unable ever to find work, or a spouse, because of this? It’s all good, as long as you don’t have to go to jail?

      • Yeah, that’s right. They get all the ‘Due Process’ they need. You’re assuming all that would happen when it has been shown not to happen at all. History has shown rapist walk free and universities are more interested in protecting their reputation. How’s that for ‘due process’? When people who commit crimes haven’t been held accountable? That seems to be the American way – get away with everything you can, as long as no one can prove it.

      • aliasclio permalink

        They cannot possibly get all the “due process they need” since the presumption of innocence, which is part of “due process” is often abandoned in the handling of accused campus rapists. I note that you too are assuming that accused rapists are always guilty of rape, when it is clear that at least in some cases they are not: there are intentional false accusations (often driven by fear of a father or boyfriend); there are mistaken-identity accusations (it’s hard to see the person who has attacked one in the dark corner of the frat house); there are emotionally-confused accusations (where did it happen? who was there? – like the girl at UVa, to whom I’m being generous). Incidentally, this kind of thing happens with murders and thefts, too, when there isn’t enough evidence to convict the suspect/s. It’s not a problem confined to rape cases but tends to be somewhat worse with them because of the lack of external evidence.

  2. georgefinnegan permalink

    Presumption of innocence is required when the government takes actions against individuals because they can incarcerate them. That isn’t something a university does, so the ‘due process’ you’re thinking of isn’t necessary. Saying that they can’t possibly be getting enough due process is just an opinion – that universities don’t have to provide your idea of ‘due process’ is a fact.

    If you think that assuming that accused rapists are always guilty is somehow wrong, how is that in any greater error than thinking that all accused rapists are innocent? If you can think outside the box, you’d see they’re exactly the same, just with a different emphasis. Some men choose to think that presumption of innocence is important because of tradition, or they think about how bad things might happen to someone who might be wrongly accused. Guess what? False accusations happen and lead to prison even in situations where presumption of innocence is enforced – due process doesn’t guarantee much. And I would say the small number of false rape accusations is probably within the error that’s found with false positives normally encountered in adhering to due process with presumption of innocence. Moreover, there are plenty of criminals who get to run free – enough to make people sick of the way the system works. And that goes much more so for rape, where the victim can be left with a brain that’s re-wired in such a way that it can’t function well in the court system that’s required to work through this traditional ‘due process’. So, for a more absolute justice, we do need ways to make them pay that don’t involve incarceration. Take away their diploma; heckle them when they get on stage; shun them. That’s something the government can’t prevent as long as the whoever is meting out this justice doesn’t break the law.

  3. aliasclio permalink

    “If you think that assuming that accused rapists are always guilty is somehow wrong, how is that in any greater error than thinking that all accused rapists are innocent? If you can think outside the box, you’d see they’re exactly the same, just with a different emphasis.”

    “Just with a different emphasis”? No. The difference is that the State, i.e. the party that tries the accused and determines his or her guilt, holds far more power than the accused.

    You might remember that anti-black lynch mobs, too, were an attempt to correct the perceived inadequacies of post-Civil War justice towards accused black people in the southern states.

    • Maybe you didn’t read what I said: People can do what they want to exact what they think is justice as long as they don’t break the law. It’s very dramatic to bring up lynchings, but that isn’t what I said nor is it what I’m talking about. And, also, we aren’t talking about ‘the State’ – we’re talking about a university. You need to stay on topic.

      • aliasclio permalink

        I am on topic. We were discussing the differences between the way universities and the state handle accused rapists, an issue in which the presumption of innocence is one of the salient factors. Universities may not technically be a state body in that they are not legal bodies appointed by the state (but are often state agencies; even private ones operate with state money), but they have immense power for ruining people’s lives. They ought to impose penalties with the same level of concern for the rights of the accused as legal bodies, especially when handling criminal accusations. Your kind of thinking is an excellent example of what is wrong with American society today.

      • You’re not on topic when you get into emotionally charged ideas of lynchings while comparing them to what I was speaking of. That’s cheap theatrics. For example, shunning people you don’t like, such as what is being experienced by the rapist of the girl at Columbia University, is a personal choice upheld by freedom of association. It doesn’t break any laws. The guy still has his freedom, but he is paying the consequences for being a rapist. It isn’t anything like lynching blacks at the turn of last century and trying to extrapolate what I said to that is absurd.

        So you have the opinion that universities need to follow your idea of due process. Once again – just your opinion. They don’t have ‘immense power for ruining people’s lives’ – people change schools mid-career all the time; they move on and get a degree somewhere else; their lives aren’t ruined – they still have their freedom. Thinking that they will have their lives ‘ruined’ by a little inconvenience is highly speculative. And, once again, the universities don’t handle criminal accusations – they handle accusations of misconduct.

        Finally, anyone can play the opinion game – your kind of thinking is what’s wrong with American society today. It breeds a culture where people think that they can commit any crime as long as there isn’t enough evidence against them. That way of thinking is what fills our prisons by people who think they can get away with things and engenders what is known as a ‘criminally culpable mind’.

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