There is a strain of thinking that I see repeated over and over as we work to change the culture around rape, as we work to see that people who bring accusations of rape don’t automatically become treated like suspects themselves, that they have equal access to institutional protections and remedies. This has been particularly evident in statements from those who oppose the White House Title IX initiatives addressing sexual assault on college campuses.
The clearest statement of this argument I’ve seen came from Joseph Cohn of FIRE in The Chronicle of Higher Education a couple of years ago, though I’ve seen it in various forms since.
Under the new standard, if it is determined that an accuser’s claims are a fraction of a percent more likely to be true than false, the accused may be subjected to discipline, including expulsion.
Unfortunately for students’ rights, a long line of institutions have adopted this low standard under federal pressure. In fact, a review of policies at 198 of the colleges ranked this year by U.S. News & World Report reveals that 30 institutions—including Yale University, Stanford University, and the University of Virginia—have changed their standards of proof following OCR’s mandate.
That’s too bad, because colleges should be free to grant their students more robust due-process rights—and the federal government should not stand in their way.
This argument is generally presented in gendered terms, though it isn’t here. While this article refers to “students”, it is usually “men” standing in for those who are accused of sexual assault. Their alleged victims are in turn presumed to be women, though the women/accusers themselves are rarely mentioned in the formulation of the argument.
There are a number of possible reasons for the invisibility of these presumed female accusers. Women’s rights are often viewed as “special” rights, along with the rights of other marginalized populations, so human and civil rights arguments tend to focus on men. People these days do tend to notice when you argue for men’s rights over women’s rights and apply a bit more critical thought to an argument that does this. Talking about women as alleged victims quickly brings to mind a number of well-publicized stories that look nothing like false accusations to even unsophisticated audiences, and that doesn’t help garner sympathy for the accused.
Whatever the reason, we cannot allow this particular argument to stand on its own. Arguments for the rights of the accused have to be considered in the context of the rights of the accusers.
Why? Because the only way to guarantee that there will never be a negative outcome for an accused innocent is to guarantee that there will always be a finding of innocence.
All binary detection systems have rates of both false positives and false negatives. Our systems of justice, whether at the state or the institutional level, are binary detection systems for guilt. To the extent that it is possible to eliminate false positives, we can only do so by dialing down the sensitivity of the system, which increases false negatives.
There are very good reasons we do not set an “innocent until proven guilty” standard for every system of justice. It is appropriate in a criminal justice system, where the consequences of a false positive are particularly high. Loss of freedom and possibly of life are large consequences. Proof “beyond a reasonable doubt” is an appropriate means of protecting people from facing those consequences in error, particularly when the costs of false negatives are relatively abstract (being “robbed of justice”) or diffuse (increasing risk of continuing crime across a population).
As soon as we step outside the criminal justice system, the stakes change and so do the standards we apply in deciding between accuser and accused. In the civil justice system, the basic standard is preponderance of evidence. For the most part, the claimants are viewed to be facing equal risk if their claim is inappropriately rejected, so they face equal standards of evidence. (Where risk is particularly unequal, measures are occasionally taken to make it easier for a party to afford to make a good case for a true claim or more expensive to make one that is known to be false. Think recovering attorneys’ fees or facing penalties for frivolous suits.)
When it comes to sexual assault allegations on college campuses, accuser and accused face nearly identical consequences. Both face potentially devastating damage to their reputation. Both face the censure of peers, faculty, and administration. Both face the possible end of their educational career, at least with that institution, as victims of sexual assault do sometimes find it impossible to function on campus with their assaulter present. To the extent they risk unequal injustice, a case could possibly be made that an honest accuser faces a larger risk, as lack of support after a sexual assault is a major risk factor for a poor outcome. However, I’ll stipulate that the risk is equal for the sake of dealing with this argument.
What does it mean, then, when someone posits that it is unacceptable for an innocent accused to be found guilty when that same someone doesn’t equally agree that it is unacceptable for an accurate accusation to be found false? What does it mean when someone tries to require “proof” rather than an equal weighing of all information available?
It means that person is arguing that accusers should bear the larger burden in these cases. In addition to an equal share of the risk, they should bear a greater responsibility for providing evidence for their case. Even before we get into issues of common rape myths and how those influence decision-making in these cases, even before we touch the issue of rates of true and false reports, someone who argues that it is unacceptable for an innocent accused to be found guilty is arguing that accusers should face injustice more often.
When they argue for no false positives, they are arguing for more false negatives. They don’t say it, either because they don’t stop to think about the consequences of their position or because they know that stating it baldly will be unpalatable. Neither of those make this any less true, however.
It’s an unpalatable thing to say, yes, but I’ll say it. Creating a system in which schools explicitly put accusers and accused on equal footing with regard to sexual harassment and rape will result in more innocent people being found guilty. I am willing to accept that, because the alternative is even less acceptable.
Do I want to see any false positives in findings on sexual harassment and assault? No. I don’t want to see any false negatives either. But wanting what I want will not create that perfect system.
There will always be results returned in error. The best we can do is minimize those errors and ensure that there is no systematic unfairness in how those errors hurt people. Right now, there is. The White House’s actions under Title IX addresses that unfairness. Any legitimate criticism of those actions must address that current unfairness as well.