“FIRE is sticking up for penises everywhere.”
If you are a male college student and attend an American university that receives federal funding, which you probably do, your due process rights took a significant hit this summer.
Why?
Because a recent "Dear Colleague" letter from the Office of Civil Rights within the Department of Education has mandated that all universities adopt the "preponderance of evidence" standard when adjudicating sexual assault cases on campus -the lowest standard of proof.
If a university decides not to use this standard, it risks losing all its federal funding.
The dangers of lowering the evidentiary standard are obvious: lowering the evidentiary standard will result in more false convictions. As I point out in a recent op-ed for my school newspaper:
By forgoing the “clear and convincing” evidentiary standard that most top colleges usually applied to allegations of sexual assault, the OCR has also forgone fundamental fairness and committed its own acts of metaphorical violence against student rights, against due process and against the founding principles of our nation.
Feminist groups and the government contend that the new standard is fine because university judicial bodies are not criminal courts, and nobody is being threatened with jail. However, as we have seen already, many have had their lives and educational careers ruined or put on hold as a result of false convictions stemming from this new standard. Not to mention that universities are ill equipped to prosecute such sensitive cases in the first place.
Philadelphia Magazine published a great article last month about the new evidentiary standard. It highlighted many of the individuals responsible for pushing for the new standard. According to these individuals, the Foundation for Individual Rights in Education, the organization leading the fight against the new standard, is merely "sticking up for penises everywhere.”
I happen to agree with that assessment, but in addition might add that FIRE is also sticking up for due process, the law, and fundamental fairness.
As I again stated in my op-ed, "Trading one set of victims for another does service to no one, especially when one of those victims is the Constitution of the United States."
UPDATE:
If you haven't seen it already, Peter Berkowitz with the WSJ took on the new OCR standard in an Aug. 20 opinion piece for the paper. He asks:
Where are the professors of history, political science and law who will insist clearly and in public that due process is a fundamental component of American political institutions and culture, a cornerstone of our legal system, and indispensable in a free society to the fair administration of justice?
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Comments:
Re: “FIRE is sticking up for penises everywhere.”
Title IX is exactly where OCR claims the authority to push through this measure. Funny that they would just now discover this authority despite the existence of Title IX for decades.
Edited on September 10, 2011 at 9:29amJun '10
Re: “FIRE is sticking up for penises everywhere.”
Of course charges of rape should be handled by the police, not some university bureaucrat. That's no guarantee of a fair handling of a claim, as Duke Lacrosse players know all too well. A deeply disturbed prosecutor and a university administration combined efforts to destroy the young men and almost succeeded. Their motivations went much further than seeking justice for a rape victim. Their peverted need to view justice through a prism of race & class, anti-jock attitudes, and a twisted view of feminism and victim's rights swirled around in a perfect storm.
I followed that case closely and knew deep in my bones from day one that the charges were bogus. I wish Jack Dunphy would chime in here and give some perspective on how cops' intuition comes into play when conducting an investigation and judging the credibility of a witness or alleged victim.
That leads me back to my point about behaving like a gentleman. Had the lax team not had a wild reputation....had they known how to have a good time withour strippers....had they not been loud, obnoxious neighbors...they might have been given the benefit of the doubt.
Jun '10
Re: “FIRE is sticking up for penises everywhere.”
In no way should my comments be interpreted to mean loud party boys should lose their presumption of innocence. Neither should a scantily dressed rape victim be seen as "asking for it." I'm just suggesting young people use common sense. Your reputation will make your life easier or harder, depending on how you've cultivated it.
Mar '11
Re: “FIRE is sticking up for penises everywhere.”
I wouldn't worry too much. "Preponderance of evidence" is the same standard of proof needed fire a federal employee, and we all know it's just about impossible to do that.
Apr '11
Re: “FIRE is sticking up for penises everywhere.”
If the appropriate standard is preponderance of the evidence, then shouldn’t the accuser/victim also be judged by the same standard? In many standard jury instructions this standard is restated as more likely than not, or as if the jury were weighing the evidence on a scale. The person with the burden of proof meets that burden if the scale tips slightly in that person’s direction. If these accusations of rape are simply a civil matter, then it is analogous to a ‘who ran the red light’ automobile case. Either he raped her, or she made up the charges. If it is fair to the male to remove him from school based on this standard, then it should be fair to the female to judge whether her claim was false and remove her from school under the same standard.
Dec '10
Re: “FIRE is sticking up for penises everywhere.”
When I see young woman in Muslim headcoverings (a common sight only in the last 10 years) I can only laugh at the notion of feminism.
Dec '10
Re: “FIRE is sticking up for penises everywhere.”
Under the "preponderance of evidence" standard, the Justice department is guilty of the murder of a border guard in operation Fast and Furious.
Mar '11
Re: “FIRE is sticking up for penises everywhere.”
dreamlarge
StickerShock: Advice to young college men: Behave like a gentleman & keep your pants zippered. Then the argument about evidentiary standards and due process remains a theoretical one you can engage in during class, rather than a life-altering nightmare.
And don't forget to call your mother at least onece a week, shower daily, and launder your sheets. · Sep 9 at 10:56am
Perhaps I misunderstand, but I think the problem with the new, lower evidentiary standards is that one may behave as a perfect gentleman (and scholar) and still be falsely accused of a vicious crime. With the lower standards of proof, how does the “gentleman” prove a negative?
Dreamlarge: you clearly do NOT misunderstand; there are many who have commented that do. The problem is the legal one and NOT the underlying moral problem that has elicited most of the commentary.
Sep '11
Re: “FIRE is sticking up for penises everywhere.”
Richard Epstein wrote an excellent article a few months ago titled, Repeal Title IX. I don't know enough about computers to link to it (sorry!), but if you google "Repeal Title IX", the article shows up right at the top.
Jun '10
Re: “FIRE is sticking up for penises everywhere.”
Derek Simmons
dreamlarge
Dreamlarge: you clearly do NOT misunderstand; there are many who have commented that do. The problem is the legal one and NOT the underlying moral problem that has elicited most of the commentary. · Sep 10 at 5:09pm
We understand perfectly the legal issues created by these changes. But isn't it clear that a college student who behaves like a gentleman will not be accused? Don't get drunk, naked and stupid with your dates. OK? Then there will be no question of date rape or the problem of a girl with regret about her behavior being convinced she was raped and filing a complaint. I hate when young men complain about the anti-male "climate" created today while behaving in a way that confirms all the stereotypes that the nuttiest feminists assign to your entire gender.
Similarly, those crass "slut walks" make me cringe. The idea that large goups of women will gather & essentially claim tht their behavior can never be judged and they bear no responsibility for any negative perceptions formed by men is insanity.
Edited on September 11, 2011 at 12:59pm