Wednesday, April 11, 2007

Looking back on rape at Duke and Columbia

The fact that the Duke lacrosse rape case was dismissed doesn't tell us what happened, of course, but at least it's clear that there is reasonable doubt. Meanwhile, Duke already suspended the players. Did Duke make the wrong decision, given what was known at the time? I think so.

In 2000, there was a controversy around Columbia University's sexual misconduct policy. Columbia, like just about all schools, organizations and corporations, has its own set of procedures for handling discipline internally, even if the alleged wrongdoing is being handled (or is better handled) by the courts. I wrote at the time that conservative-leaning civil libertarians, particularly Nat Hentoff and Alan Kors, founder of FIRE, were concerned with the case more to score points in the culture war against the left than out of concern for fairness. I concluded:
"The first student who insists on clearing his name," Hentoff declares, "will surely have a battery of civil liberties lawyers eager to do battle against Columbia." In assuming that the students before this one merely would have not insisted on clearing their names (instead of possibly being guilty of sexual assault), Hentoff acts as if campus rape does not really exist. There is a lesson here: controversies are seldom about their supposed issues, however important those issues may actually be. They are instead about settling old scores; in this case, stereotyping activists as zealots. However Hentoff and others might misconstrue things, there will be some woman here one day--because rape does happen--who will have a new chance at a humane resolution to sexual violence, thanks to the work of our student body and our senate. And for that, we can take the heat.
I feel the same today. I knew of a female student who was raped by a male student, tried in vain to get the Columbia administration to take action, and was forced to see her attacker regularly around campus. But it's a hard tradeoff; a policy that allows students to be suspended or expelled on a believable charge of rape runs the risk of unjustly punishing and stigmatizing innocent students.

One solution is defer to the courts when serious crimes are involved, and follow their lead. But what about cases dismissed on technicalities, or marginalized by an indifferent and unjust legal system? It would be cowardly to follow suit in such cases.

Here's a tougher question: returning to the Duke case, what if the prosecutorial misconduct hadn't been outed, and the accused players had gone to jail after a seeming fair trial, but truly are innocent? What should Duke have done in such a situation? It would seem ludicrous not to suspend the players--and yet it would have been wrong. I can't work this one out: if I were an administrator, I would consciously do the wrong thing and suspend the players. And I'd know it was wrong.

In a sense, there are right-wing news events and left-wing news events; idealogues need not be bothered by either, but thinking people should be changed by events that don't square with their assumptions. There are plenty of left-wing news events, such as the success of charter schools where teachers are paid more and treated like professionals, relapses by supposedly-recovered-gay christians, and the entire Iraq war. And there are right-wing events, like studies that show schools don't improve noticeably if they are just given more money, research that suggests minimum wage increases increase poverty, and rape cases where accusers turn out to be liars. I assumed the lacrosse players were most likely guilty; I was wrong, and I'm a little changed.