By JAMES K. FITZPATRICK
It is safe to say that, if The New York Times and the Trump administration come to the same conclusion, a societal consensus has been reached on the matter at hand. Well, it has happened. The Times, in an article by reporters Erica L. Green and Sheryl Gay Stolberg on July 12, took a fair and balanced approach to Trump Education Secretary Betsy DeVos’ decision to include in Title IX “listening sessions” students who were falsely disciplined for sexual assault on campuses under the existing federal government’s Title IX guidance established by the Obama administration.
(Title IX is the federal government’s prohibition of financial assistance to any educational establishment that denies women equal rights.)
President Obama, in the Times’ words, “made expansive use of his powers to investigate the way universities and colleges handle sexual violence.” He mandated that college officials apply the “preponderance of the evidence” standard — which is used in civil suits — rather than the “clear and convincing” evidence standard, demonstrating guilt “beyond a reasonable doubt,” mandated in criminal trials.
The problem with Obama’s decision, according to Candace Jackson, who leads the Education Department’s Office for Civil Rights, is that there are too many cases of men disciplined by college officials for sexual assault when there’s “not even an accusation that these accused students overrode the will of a young woman,” and that a high percentage of sexual assault accusations on college campuses in recent years “fall into the category of ‘we were both drunk’.” Jackson contends that there are too many male students who “have been branded rapists when the facts just don’t back that up.”
This is, obviously, a delicate topic. No decent person would want to make excuses for campus louts who force themselves sexually on young women. Such young men exist. The book should be thrown at them. Raping a young woman in a college dorm after fraternity beer party is no more defensible than a rape that takes place in a back alley. There well may be a “rape culture” among certain young men of college age. It needs to be combated on every front.
But that does not mean that young men cannot be accused unfairly of rape. Such things happen. We have to respect the rights of a woman who alleges a sexual assault, listen to her patiently, and consider how difficult it is for a young woman to give testimony in rape cases. But we cannot assume that there are no women who would lie about these things. Just as we should have empathy for the victim of a rape, we should have empathy for a young man — perhaps your son or grandson — who is lied about in a sexual assault case.
Anyone who believes that false charges of rape are not a problem of consequence owes it to himself to watch the ESPN special Fantastic Lies, one of the “30 for 30” series produced by the sports network. It tells the story of the 2006 Duke lacrosse scandal, when three players were falsely accused of sexually assaulting an exotic dancer hired to perform at a rented bungalow used by members of the team.
It is all there: shrieking, self-righteous students and faculty members, rushing to judgment to demand the convictions of young men they pointed to as examples of “white privilege.” Their righteous indignation led them to believe without proof the testimony of a young black woman, Crystal Mangum, the stripper who made the false accusations against the lacrosse players. Fantastic Lies presents overwhelming documentation of her lies. In 2013, Mangum was found guilty of second-degree murder after she repeatedly stabbed her boyfriend and was sentenced to a lengthy prison term.
The most glaring example of the mob mentality that developed around the case was Durham District Attorney Mike Nifong. He was forced to drop the rape charges a week after the director of a private DNA testing lab admitted in court that he had withheld test results showing that the players’ DNA was not found in the alleged victim’s body or underwear; that, in fact, the DNA of four other men turned up in the DNA test.
Until then, Nifong was willing to appear on television as a champion of minorities and women’s rights, and make accusations against the lacrosse players that he knew were unfounded. It is not irrelevant that he was in the midst of a reelection campaign at the time.
Nifong was disbarred by the North Carolina State bar in 2007 for withholding this evidence and lying to the court. He was found guilty of contempt of court and sentenced to serve one day in jail by a North Carolina Supreme Court judge who charged that Nifong had knowingly provided defense attorneys with an incomplete report of DNA testing of the lacrosse players. The omitted data was that which indicated that it was the DNA of four other men, and not the Duke lacrosse players, that was found on Crystal Mangum.
Nifong behaved shamefully, to be sure. But so did the fist-waving faculty members and feminists who demonstrated against the lacrosse players. Of course, Nifong had the power to send the players to jail for lengthy sentences. That makes a difference. But both Nifong and the mob were caught up in the politically correct hysteria that can surround charges of rape. The truth matters, even when the plaintiff making false charges is black and a woman, and the defendants are frat boys engaging as louts with too much booze and hired strippers.
In 2007, North Carolina Attorney General Roy Cooper dropped all charges and declared the three lacrosse players innocent of the rape allegations. Cooper stated that the players were victims of a “tragic rush to accuse.” Duke University has reached an undisclosed — but said to be substantial — financial settlement with the former lacrosse players. “We welcomed their exoneration and deeply regret the difficult year they and their families have had to endure,” the school said in a statement. “These young men and their families have been the subject of intense scrutiny that has taken a heavy toll.”
The dropped charges and financial settlement are vindication for the lacrosse players. By all accounts, they have gotten on with their lives quite well. But we need to pause to reflect upon what might have happened if the revelation about Nifong and DNA evidence had not surfaced. The politically correct hysteria surrounding their case would likely have sent them to jail. Nifong would have played dumb as they were frog-marched in chains to their cells. It is precisely the danger of such things happening that led Betsy DeVos to reverse the Obama administration’s approach to cases like this.
Candace Jackson’s view of the matter is common sense: “We have a justice system where nobody demands that the system itself be weighted in favor of a plaintiff,” she said. “In principle, there is no reason to depart from setting up a Title IX discipline process on campus that is anything other than fairly balanced and doesn’t prejudge and weight the system in favor of a finding. We don’t do that in our court system or our criminal justice system, and I see no reason why we would want to do it in a campus system either.” Exactly.
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Readers are invited to submit comments and questions about this and other educational issues. The e-mail address for First Teachers is fitzpatrijames@sbcglobal.net, and the mailing address is P.O. Box 15, Wallingford, CT 06492.
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