The Accused

There are, essentially, two kinds of tyranny. The tyranny of the strong, and the tyranny of the weak. Fascism, which appeals to the bully in all of us, has always been of the former sort; identity politics, which appeals to the groupie in all of us, has degenerated into the latter. Why? Because though it’s billed as a fight for the underdog—and who can quarrel with that?—the proverbial fine print says something else. Namely, that the cause of the underdog justifies depriving the overdog of his constitutional rights. So, though they don’t violate people’s rights by beating them with nightsticks, identity politicians tend to accomplish a similar tyranny by committee, behind closed doors.

Vestigial second-wave feminists and their zealous toadies on college campuses have been, at times, especially guilty of this. Their campaigns to “raise awareness” of rape and sexual harassment, and to make them swiftly punishable, were once a welcome slap in the face to the old-boy network. But they’ve since turned into purges and behavioral codes that make a mockery of the justice they once purported to uphold. For this, they’ve incurred the wrath of third-wave feminists like Katie Roiphe, whose polemic The Morning After pilloried self-aggrandizing confession rituals like campus Take Back the Night rallies.

The pesky question of litigating the second sex on campus has arisen again this fall with Columbia’s adoption of its new Sexual Misconduct Policy. This new policy enables a student who feels she has been sexually assaulted to file a complaint with the Sexual Misconduct Office, which then assembles a panel of two deans and a student to hold hearings in which they separately interview the accuser, accused, and witnesses. This panel then makes a recommendation about whether or not to discipline the accused.

The stormy backlash has already begun. The Foundation for Individual Rights in Education, a group that fights violations of academic freedom and civil liberty on campus, argues that by depriving the accused of the right to question their accusers, cross-examine witnesses, have a lawyer present during questioning, and be present when the accuser and witnesses testify, Columbia’s SMP makes a mockery of due process.

In a statement it released earlier this month, however, the university countered that the “imposition of every criminal law due process requirement is not necessary to ensure a fair and effective process for handling the violations of University policies.” Furthermore, it claimed that “the accused student has the basic due process standards required by the University: notice of the charges; right to be heard; an opportunity to rebut and a right of appeal.”

Notice of the charges, the right to be heard, and the opportunity to rebut? Well, that’s big of them. Gee, they can’t just ship you off to the gulag without telling you why, or giving you the chance to defend yourself?

But what about the missing rights that FIRE is so concerned about? Why has Columbia been so willing to adopt procedures in which the accused cannot question the accuser or be present when the accuser and witnesses testify? The short answer has a lot to do with rape-victim psychology. It makes sense that once you’ve undergone the trauma of rape, and are swamped by the post-traumatic stress reaction that follows (a terrible feeling that someone who hasn’t been raped could never imagine), you shouldn’t then be expected to undergo the added trauma of sitting in the same room with your attacker, much less submitting to his cross-examination. The emotional unwillingness to do exactly this is what keeps many rape victims from reporting their attackers. This, as Maura Bairley of Columbia’s Rape Crisis Center agrees, may be one of the reasons the university implemented a system of blind testimony and rebuttal (unlike Columbia’s former disciplinary procedures, where everything took place face to face). A laudable reason, no doubt, but not one that justifies adopting a policy that sacrifices due process and fails to protect the innocent—a sacrifice that could boomerang.

Women aren’t always the accusers, after all. In the 1998 case of Oncale v. Sundowner, the U.S. Supreme Court ruled unanimously that sexual harassment can occur between members of the same sex. Women have committed and been accused of sexual harassment and rape. So ladies, don’t think trashing due process won’t come back to bite you on the ass when you get a little too frisky with your roommate or, for that matter, her boyfriend.