Field Report: Law Professors Face Off In Intelligence Squared Debate On Campus Sexual Assault

Submitted by a MANN reader and SAVE member who attended the debate:

'On September 16, Intelligence Squared held a debate in New York City on the issue of whether sexual assault cases taking place on college campuses should be decided by courts rather than by the colleges where the crimes allegedly took place. The motion being debated was stated simply as, “Courts, not campuses, should decide sexual assault cases.”

Arguing for the motion that these cases should be decided by courts were Jed Rubenfeld of Yale Law School and Jeannie Suk of Harvard Law School, while Michelle Anderson of CUNY School of Law and Stephen Schulhoffer of NYU School of Law argued against it. Both sides acknowledged that false allegations and wrongful convictions happen and that the issue needs to be taken seriously. They also both acknowledged that there need to be changes to the college disciplinary process to address false allegations, although those arguing against the motion gave no specific proposals as to what they would change and made it clear that they support the preponderance of the evidence standard currently required by the Department of Education.

Unfortunately, it was clear that both sides viewed the interests of the falsely accused as being of secondary importance. While it was not explicitly stated, it was clear that both sides assumed that false allegations are rare. Those arguing against the motion at one point discussed the Duke lacrosse case and qualified it by “not saying that such cases happen every day,” although they provided no evidence to support this claim. Given that 90% (297/330) of those who have been exonerated by DNA evidence were wrongfully convicted of sex crimes, this assumption is severely misguided (1). They also cited the statistic that nearly 5% of college men are serial rapists, which comes from a 13-year-old study that that has been debunked on the grounds that the students surveyed were not a representative sample of college students (2) (3) (4).

Also troubling was that those arguing against the motion took the position that the law should provide no guidance at all in terms of how schools should handle these cases. While they opposed the Department of Education’s “Dear Colleague” letter and its requirement for schools to use the preponderance of the evidence standard, the alternative that they proposed was to leave schools to do whatever they want to accused students without the law requiring any evidence before they are sanctioned.

One of the more compelling (and surprising) arguments from those arguing for the motion was an extensive discussion of the potential for innocent students to either be wrongfully convicted or take plea bargains in the criminal justice system. Neither side addressed the question of why, if we believe that there’s a significant probability of this in the criminal justice system where proof beyond a reasonable doubt is used, we shouldn’t expect an even higher wrongful conviction rate under the preponderance of the evidence standard. They also claimed that pushing these cases into the criminal justice system would contribute to mass incarceration. This assumption is highly questionable, considering that there is good reason to believe that many of those making false allegations today would not be doing so if it meant going under oath and opening themselves to charges of perjury if evidence should emerge to prove that they are lying, rather than being protected by the confidentiality and non-retaliation provision of FERPA and Title IX that apply to colleges and universities.

The issue of broadening the definition of sexual assault was also raised, and there was extensive discussion of how to handle the case of a student groping another student. Concern was raised that prosecuting the student would require him to register as a sex offender, and both sides seemed to agree that handling a more minor case like this within the school might be appropriate.

The audience was asked to vote on the motion both before and after the debate. In the initial vote, 56% of the audience supported the motion, while 12% opposed it. In the final vote, 56% continued to support the motion, while 31% opposed it. Those who opposed the motion were considered by Intelligence Squared to have won the debate because they gained the most between the two votes. However, the results show that, after hearing both sides, nearly twice as many people felt that these cases should be handled by courts as by campuses.

Overall, the debate had both encouraging and discouraging signs. Intelligence Squared should be commended for conducting a balanced, respectful debate on the issue, providing a much-needed change from media coverage that has been largely one-sided. The discussions underscore that much work still needs to be done to ensure that the rights of falsely accused students are adequately protected.

NOTES:

(1) http://www.innocenceproject.org/cases-false-imprisonment/front-page#c10=published&b_start=0&c4=Exonerated+by+DNA

(2) http://www.wcsap.org/sites/www.wcsap.org/files/uploads/webinars/SV%20on%20Campus/Repeat%20Rape.pdf

(3) https://reason.com/archives/2015/07/28/campus-rape-statistics-lisak-problem

(4) https://reason.com/blog/2015/07/28/campus-rape-stats-lisak-study-wrong