The Removal of Due Process by Executive Order

In case you haven't heard, the Obama administration began a new initiative to crack down on sexual assault on college campuses by threatening to cut off federal funding under Title IX to any colleges that don't adhere to their new policies regarding sexual assault. To many readers who don't dig into what that plan actually entails would come away thinking that of course a crack down on sexual assault is a noble cause. Unfortunately, the way in which Obama is going about it, bypasses both the entire police and court systems as well as the legal right to due process, and has placed university and college tribunals in charge of weighing the evidence of guilt or innocence. As someone who supported and voted for Obama, and feel that he is doing a fairly good job, I am rather disturbed by this act of the Executive branch overstepping its bounds.

The Wall Street Journal wrote an article that does a good job of explaining the big problems:

The Obama administration has aggravated the problem. On April 4, Assistant Secretary for Civil Rights Russlynn Ali, head of the Department of Education's Office for Civil Rights (OCR), distributed a 19-page "Dear Colleague" letter to "provide recipients with information to assist them in meeting their obligations."

At the cost of losing federal funding—on which all major institutions of higher education have grown dependent—colleges and universities are obliged under Title IX of the Civil Rights Act (which prohibits discrimination on the basis of sex) to thoroughly investigate all allegations of sexual harassment and sexual assault on campus, including the felony of rape. They are also obliged, according to Ms. Ali, to curtail due process rights of the accused.

OCR's new interpretation of Title IX "strongly discourages" universities from permitting the accused "to question or cross-examine the accuser" during the hearing. In addition, if universities provide an appeals process, it must be available to both parties—which subjects the accused to double jeopardy.

Most egregiously, OCR requires universities to render judgment using "a preponderance of the evidence" standard. This means that in a rape case, a campus disciplinary board of faculty, administrators and perhaps students serves as both judge and jury. Few if any of these judges are likely to have professional competence in fact-gathering, evidence analysis or judicial procedure. Yet to deliver a verdict of guilty, they need only believe that the accused is more likely than not to have committed the crime.

One of the driving factors behind this has been a move, an off-shoot of sorts from just the problem of removing due process has been the push by some activist groups for the government to crack down on sexual activities while alcohol is involved. No one can question that alcohol does play a major part in sexual activity and even sexual assault such as what is refereed to as "date rape." However, the standard many colleges are beginning to look towards for guidance, is the belief, as pushed by some of these activist groups, that a female who has had any alcohol can not legally consent to any sexual activity. Again, no sane person would argue that either a man or woman who is intoxicated beyond any rational cognitive thought is able to consent to sex. The problem beyond that, besides this policy has so far been targeted strictly towards men, is the standard for sexual assault or rape charges to be brought forth only requires the female to have had any amount of alcohol then claim wrong doing happen after the fact, even if she had given consent. Certainly, if I were a female, I would be highly insulted, that as a woman I am considered incompetent to make rational decisions with as little as a beer consumed. This is ironic since these policies changes are being pushed by groups claiming to be looking out for the interest of women.

The difficult part, which these groups, colleges and universities and the Obama administration are side stepping is to what degree do they feel a woman are incapable of making decisions. Since placing a number, say .005 or .01, on the alcohol blood levels needed for a woman to lose her ability to have either responsibility for their actions nor are capable of rational decision making (ugh, I seriously want to vomit after writing that sentence) the open ended scale means it is entirely at the discretion of these tribunals at the colleges as to what degree should be stipulated. Thankfully this particular issue of alcohol hasn't been formally indoctrinated into the administrations new policy. However, this does not mean that some college tribunals haven't already taken this aspect into its policies, as some have done already. The lack of direction for a legal process, has left an arbitrary open gap for colleges to selectively enforce and enact their own procedures and standards. Not only is this a serious injustice to men, who now maybe looking at expulsion, loss of college credits and an inability to attend another university, many women are finding this whole thing highly insulting. And just because the man wouldn't necessarily be facing criminal charges, it doesn't mean that something like this couldn't ruin his life. Furthermore, there is no provisions for the protection of men that colleges are looking at enforcing such as if a man claims sexual assaulted because he was intoxicated and the female is not.

Sexual assault on college campuses, especially date rape is a serious problem, no question. But by bypassing the judicial system, lowering the standard for what is considered assault and systematically stripping men of due process and women of the insane idea that they aren't capable of giving consent for sexual activities while drinking (since the lack of judicial process guidance from the Office of Civil Rights), the US government is in itself, making a hostile schooling environment. If a crime has been committed to the point of a person accusing another of sexual assault, it should be turned over to law enforcement and the district attorneys for criminal fact finding and formal charges, and not be left to he said/ she said standard of prosecution by tribunal. It sadly mocks the actual brutal crime that is sexual assault.

Here is a great article from the blog False Rape Society about this too.

Other Articles - CS Monitor, Stanford Daily