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Letter to U.S. Department of Education Secretary Arne Duncan, 9-19-2012

Dear Colleague,

For the record, let me begin by stating that no one is arguing against treating the crimes of rape and sexual harassment as not serious, not criminal, not wrong, or not important. The argument here is not an advocacy to excuse the act, nor is it an advocacy of dismissal of the victim's experience. The points I intend to make here are very simple: It is wrong to designate one portion of the population as having disposable rights in order to assuage the outrage of another portion, and that is what modern treatment of sex crime allegations does.

The right to due process is a fundamental, basic human right. It involves a simple, bottom-line status which is to be applied universally: The presumption of innocence until guilt is proved. This status belongs to every living human being, accused or not, and if accused, whether accused of the lightest misdemeanor, or the most heinous felony crime. It is not to be impinged regardless of the nature of the accusation. Until there is proof of guilt, any accusation, no matter how serious or how heinous, is still just an accusation. This is how we protect innocent people from being victimized by the juggernaut that is government, and in particular the court system - by enforcing that standard of proof. This is also how we protect innocent students from being victimized by the life-path wrecking ball that higher education disciplinary authorities can be, as these are human judges subject to emotional appeal, who may be easily swayed toward assessing that the preponderance of evidence standard has been met by faulty or superficial factors rather than genuine proof.

The move to compromise policy and law related to the application of the Presumption of Innocence standard to men accused of sex crimes is based on sympathy for existing victims. The choice to relax standards of proof rides on the assumption that failure to penalize men against whom allegations are unproved somehow damages existing victims, combined with the choice to ignore damage done to falsely accused and falsely penalized men. In other words, it treats the innocent man as if, just by being accused, he is guilty of the actions of previous criminals.

In enforcing upon university disciplinary authorities the Preponderance of Evidence standard instead of the Beyond a Reasonable Doubt standard, you have determined that accused students can be found guilty by insinuation, rather than requiring proof. This creates a great increase in the risk of convicting and penalizing falsely accused students, while not necessarily increasing the ability to determine the guilt of the guilty. In fact, it clouds the issue by lumping the innocent and the guilty together, casting doubt upon the validity of all convictions instead of confirming the validity of any.

Pitting the rights of the falsely accused against the rights of the genuinely victimized is a false argument. Punishing the innocent does not
  • prevent sex crimes
  • act as a substitute for handling actual perpetrators
  • unrape or unharass existing victims
  • in any other way achieve anything resembling justice
When the innocent man remains free, that does not
  • cause sex crimes
  • prevent the pursuit of an actual perpetrator
  • re-victimize existing victims
  • in any way deny anyone's attainment of a just outcome to any investigation
Punishing the innocent man does not ensure that the guilty will be punished along with him. In fact, in the course of a traumatic experience, the victim may misidentify the perpetrator due to her fear response. Punishing the innocent rather than requiring proof can lead to leaving the guilty unpunished and free to repeat his crime.

The right of the accused to the benefit of due process, particularly the benefit of being presumed innocent until proven guilty, is equal in value and importance to the legal rights of the alleged victim. The choice to release the name of the accused, to apply penalty prior to a hearing, and to apply the lowest standard of proof (preponderance of evidence) to the investigation of a serious crime, treats the accused as already convicted and requires him to prove his innocence, rather than the reverse. Further, the stipulation that universities must choose between denial of the accused's right to appeal or subjecting him to something very like double jeopardy (by allowing the accuser to appeal as well) is a second violation of the accused's due process rights.

In abridging the due process rights of men accused of sex crimes with a standard which is not applied to the investigation of any other offense which college and university disciplinary commissions might address, the Department of Education has applied a sexist and discriminatory requirement. This requirement applies only to an accusation set which is predominantly made by women against men, which means the population subjected to it will be predominantly male. This does not enforce equal treatment as described by title IX, but instead violates the intent of the law.

To summarize, the 2011 changes in Department of Education policy on sexual assault and sexual harassment, rather than achieving the stated intent of making all students feel safer in their schools, has created a hostile environment for men on college campuses while failing to increase safety for women. I would encourage the department to rethink and rewrite this policy to bring it more into line with legal standards, to eliminate the gender discrimination inherent to the 2011 version, and to insert a modicum of sense into the handling of sensitive allegations on college and university campuses. If you cannot do that, then it may be better to abandon the policy completely and allow campuses the freedom and responsibility to handle these matters on a more individual basis.


Adjunct Professor,
XXXXX University XXXXX Campus,

XXXXX University,
XXXXX, Ohio 

*information removed to avoid compromising my privacy, but included in letter sent.

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