Posted by Brad @ 4:09 pm on December 8th 2014

The College Rape Overcorrection

I have long been bothered by certain classes of crime for which our usual standards of judicial conduct don’t apply (or even the general philosophy of “innocent until proven guilty”). Very high level, touchy examples include things like sex offender laws or say treatment of terrorism suspects. Lower level examples might include something like “bullying”, wherein the mere invocation of the term demands a totally different treatment, a totally different thought-class of behavior, than most any individual instance would itself demand. Other examples might include the overuse of the term “racist”, particularly in the 90s or in hyper-pc settings, or going back further the whole Red Scare. I am equal opportunity in this, btw – it bothers me when applied to conservative sacred cows as much as it does when applied to liberal ones.

But the real essence, and commonality, that gets under my skin is simply any classification that people throw up that is intended to yank something out our normal, usually rational and hard-won processes (which exist for a reason, I have to remind people), and into some other rarefied spectrum wherein justice and fairness are seen as less important than “not missing something”. Where essentially we invert the “rather let a hundred guilty go free than punish one innocent man” to read “I would rather let a hundred technically innocent men rot (and besides if they’re accused they probably deserve it somehow anyway) than risk a single case where we miss a guilty man”. Essentially, anything wherein the FACT of guilt or innocence becomes a SECONDARY consideration. Things for which the mere ACCUSATION turns out to be more important than the hard work of determining guilt from innocence. This is even more pernicious, it seems to me, when you, in addition, slap on a group identify that that especially applies to – say muslims, or college-age white men, or unarmed black teens – whatever.

So I found Emily Yoffe’s article on “The College Rape Overcorrection” to be an incredibly brave, and sober, look at some of the issues spurred by the recent UVA/Rolling Stone story, but really, as an examination of the entire issue of sex and consent on college campuses.

As you can guess from the title, it is largely about how the increasingly crushing public pressure on this subject is leading to some bad policy – opaque, non-transparent university-managed processes which essentially institutionally crystallizes an “any accusation is proof of guilt” standard for dealing with sexual issues. But there is also a discussion about the methodology and value of some of the reseach – or rather the media interpretation of that research – regarding sexual assault and rape on college campuses that is of value too – specifically things like “One in four women have been the victims of rape” or whatever. And finally there is a valuable conversation about Title IX and how the federal government is now putting a huge thumb on the scale of how higher ed deals with these things. Some of that is of course a reaction to UNDERcompliance, but at the same time a huge amount of it is basically FORCING universities to deal with things in a federally mandated way. As you can guess from my political views, I think that way often leads to solutions that aren’t dictated by on-the-ground realities but instead by shallow political winds, but another way to put that, perhaps, is the way it incentivizes higher education institutions. In my experience, the behavior of both individuals and institutions is all based on how they are incentivized (or conditioned, if you want to get all B.F. Skinner about it). In previous years, institutions were incentivized to sweet sexual assault under the rug. Now, however, they are incentivized the opposite way – to treat ANY case that comes before them as a necessary conviction. There is no incentivize (or very little of one) to provide a just, transparent, and thorough process. There is a HUGE incentive to make sure that no potential guilty party ever goes free – the federal government can literally, with a penstroke, threaten to dissolve your entire institution. Think of it the same way we think of DAs – if they are rewarded for convictions but not for failing to bring cases when the evidence doesn’t merit it, they are going to be incentivized towards convictions rather than justice. Now imagine if the consequence of failing to get a conviction was immediate termination, and how much prosecutorial abuse that would invite.

Same thing here. The downside of falsely “convicting” a person accused of sexual assault is you may have to payout a civil lawsuit down the line. The downside for NOT convicting a person accused of sexual assault is you may get a Rolling Stone cover story on the subject, be the center of a huge public controversy, have your President and chairman of the board fired, and perhaps have your university disintegrated.

If you’re a rational institution, which way you gonna go?

These are not incentives that behoove fairness or a pursuit of justice. They are incentives that demand witchhunts. By design. And in an atmosphere where the public mentality regarding these things is to put them in the same category as those examples I mentioned at the start – so vile that we have to disregard due process and that a hundred innocents rotting are worth not allowing one guilty to go free – you are going to see a lot more lives ruined and a lot more overcorrection before thoughtfulness or fairness ever have a chance of winning out.

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