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Sexual assault, due process and protecting students

By Scott Tibbs, February 28, 2014

Last week BBC Radio ran a segment about sexual assault at American universities, and efforts to combat it. The lead was a personal story from a woman who was allegedly raped, who was traumatized by the university's requirement that the alleged rapist must be permitted to face her. What was not mentioned was the accused rapist's Sixth Amendment right to "be confronted with the witnesses against him."

Here is the obvious dilemma: Someone who has been the victim of a violent crime - especially rape - will understandably be traumatized by facing her accuser, but the right to face one's accuser is a critical part of due process that protects both the integrity of the system as well as the rights of the accused, whether innocent or guilty.

We do know that false accusations take place. The most famous false accusers of the last thirty years are Tawana Brawley and convicted murderer Crystal Gail Mangum, both of whom fabricated stories of "rape" out of whole cloth. Both were exposed as liars and frauds, but not before ruining the lives of the men falsely accused. Our criminal justice system presumes those accused of crimes are innocent until proven guilty, but in the case of sex crimes that is often ignored - and that has led to terrible injustice against innocent people.

But a more obvious question is this: Why is the university handling something like this, instead of handing it over to the civil magistrate? If a crime may have been committed, why not separate the alleged perpetrator and alleged victim while the case is adjudicated by the criminal justice system instead of a university's disciplinary system? The best a university can do is expel someone, but they do not have the authority to impose criminal punishment.

Finally, it was mentioned that conviction rates are "too low." This is not a game, where we are trying to improve a player's statistics. The goal should be justice. In some cases, that means a conviction. In some cases, it does not. It may well be that too many rapists are getting away with their crimes (and that is probably the case) but the goal should never be a specific result. That is the goal in totalitarian regimes that have no respect for civil liberties, but should not be the goal in a nation founded to protect people from an abusive government.