It began with a text of desperation. "CALL ME. URGENT. NOW."
That was how my son informed me that not only had charges been brought against him but that he was ordered to appear to answer these allegations in a matter of days. There was no preliminary inquiry on the part of anyone at the school into these accusations about behavior alleged to have taken place a few years earlier, no consideration of the possibility that jealousy or revenge might be motivating a spurned young ex-lover to lash out. Worst of all, my son would not be afforded a presumption of innocence.
On today's college campuses, neither "beyond a reasonable doubt," nor even the lesser "by clear and convincing evidence" standard of proof is required to establish guilt of sexual misconduct.
These safeguards of due process have, by order of the federal government, been replaced by what is known as "a preponderance of the evidence." What this means, in plain English, is that all my son's accuser needed to establish before a campus tribunal is that the allegations were "more likely than not" to have occurred by a margin of proof that can be as slim as 50.1% to 49.9%.
How does this campus tribunal proceed to evaluate the accusations? Upon what evidence is it able to make a judgment?
The frightening answer is that like the proverbial 800-pound gorilla, the tribunal does pretty much whatever it wants, showing scant regard for fundamental fairness, due process of law, and the well-established rules and procedures that have evolved under the Constitution for citizens' protection. Who knew that American college students are required to surrender the Bill of Rights at the campus gates?
My son was given written notice of the charges against him, in the form of a letter from the campus Title IX officer. But instead of affording him the right to be fully informed, the separately listed allegations were a barrage of vague statements, rendering any defense virtually impossible. The letter lacked even the most basic information about the acts alleged to have happened years before. Nor were the allegations supported by any evidence other than the word of the ex-girlfriend.
The hearing itself was a two-hour ordeal of unabated grilling by the school's committee, during which, my son later reported, he was expressly denied his request to be represented by counsel or even to have an attorney outside the door of the room. The questioning, he said, ran far afield even from the vaguely stated allegations contained in the so-called notice. Questions from the distant past, even about unrelated matters, were flung at him with no opportunity for him to give thoughtful answers.
The many pages of written documentation that my son had put together—which were directly on point about his relationship with his accuser during the time period of his alleged wrongful conduct—were dismissed as somehow not relevant. What was relevant, however, according to the committee, was the unsworn testimony of "witnesses" deemed to have observable knowledge about the long-ago relationship between my son and his accuser.
Now, I read this over, and I think myself thinking: What did you expect?
When it comes to accusations of rape, which is what her son is accused of, although she can't quite bring herself to use the word, our society is faced with two contradictory priorities. On the one hand, we rightly don't want to severely punish someone for a crime they did not commit. Avoiding punishing innocent people means having a high standard of evidence, a statute of limitations which makes it impossible to prosecute crimes too old to have clear evidence available, a presumption of innocence, etc. However, at the same time, society wants to provide redress for victims of crimes, particularly crimes which people may feel shame in relation to being the victims of, without putting them through the ringer. They've already suffered from the crime itself, why make them suffer more in trying to get justice for it.
Society has a sort of uneasy truce between these priorities by allowing semi-private institutions such as colleges, employers, etc. to censure people pretty easily, with comparatively light consequences, while keeping the burden of proof comparatively low. If Ms. Grossman has been hanging around feminist circles as much as she says, she should know that the reason why her son's hearing worked the way that it did was because people have been seeking to make raising accusations less onerous for rape victims. This is a pretty good idea for various reasons, and while I don't doubt that her son's experience was very distressing, he was declared not guilty, so it seems that in this case "the system worked".
The thing is, you can't have a system which is easy on both the accuser and the accused. Being the victim of a crime is distressing. Being accused of committing a crime is distressing. Any system has to come up with some sort of balance between the rights of the accuser and the accused, and there are reasons that Grossman should be familiar with for the particular balance that society has struck. That's not to say that it's the best possible balance, but let's be clear: Any change that would have made things easier on her son would also have made things harder on at least some actual rape victims. There is not a system that magically sorts out the guilty from the innocent without making things difficult for anyone.
This also, I think, points out a problem that many people run into when they start thinking in terms of statistics instead of individual events (or as they are derisively called in debate: anecdotes). It's often pointed out that it is a very infrequent occurrence for a woman to falsely accuse a specific man of raping her. This stands to reason (successfully making a rape charge is a pretty grueling process and if the charge if false you stand a good chance of losing and ending up in even worse trouble) and those studies that I've seen bear this out. However, the fact that an event is infrequent does not mean that it doesn't happen. Say that only 0.5% of rape accusations are false. Well, that means that one out of every 200 people accused is innocent. That may sound like good odds if you're making a sociological statement, but it still really, really stinks to be that 1 out of 200 person. It's okay to decide how to deal with rape accusations based on a knowledge that accusations against specific people are not frequently false, but you still need to be very clear in formulating your position on such things that "not frequently" does not mean "never".
And since I'm taking the stand back and throwing stones approach to the story: I'll finish up by pointing out that while nothing is a complete protection against being wrongly accused of a crime (I'm finishing up reading a book about Captain Dreyfus, who was convicted of treason because his handwriting looked a bit like someone else's, he wasn't a super likeable guy, and he was Jewish), when it comes to being accused of rape at college, not having premarital sex at all is generally going to be a pretty good protection against charges.