Federalist Society Panel on Sexual Assault on Campus

This panel is a great summary of the various positions on the sexual assault issue.  There were two people on the right – one conservative and one sounding more libertarian – and two on the left – one representing the Administration and one representing a women’s group.  Everyone played their parts perfectly.

While I recommend listening to the entire panel, here is a brief summary of the presentations with some of my own commentary.

1. The first panelist was Lara S. Kaufmann, Senior Counsel & Director of Education Policy for At-Risk Students at the National Women’s Law Center. Her presentation was a stereotypical talk on the subject by a member of a feminist interest group. Kaufman focused on how women are at risk, offering statistics and other evidence entirely devoted to showing the risk, and literally said not a word about the due process rights of people accused of sexual assault.  It is as if she does not care about them.

My guess is that her presentation was not very persuasive to a Federalist Society audience.  It would have been more effective if it had acknowledged and attempted to rebut the due process concerns and the charges that sexual assault statistics are often spurious.  But she did neither.  

2. The second panelist was Heather Mac Donald, Thomas W. Smith Fellow at the Manhattan Institute. MacDonald, a gifted speaker, was probably the most interesting presenter.

Her strongest point – and one that is quite powerful – is that the universities and activists don’t really appear to believe these problems from drunken hook-ups are rapes, despite their claiming that they are.  If there were violent rapes occurring in the parking lot of a university, the administration would be telling women to avoid the parking lot and to walk there only with protection.  By contrast, the university is not doing that as to drunken hook-ups.

MacDonald argues that if one believes these sexually problematic encounters are a problem, then one should be telling women not to get drunk and get into bed with men.  She also finds the behavior of the man boorish and morally problematic.

While MacDonald comes across more conservative than I find appropriate, she certainly has a point: if you are concerned about the consequences for women in these difficult situations, people should be telling the women not to engage in this behavior.  Yet, this advice is not given, because it is said that this blames the victim.  This is moral idiocy. As has often been pointed out, one warns people not to walk in dangerous neighborhoods, even though the pedestrian have a right to walk anywhere in safety.

3. The third panelist was Seth Galanter, Principal Deputy Assistant Secretary of the Office for Civil Rights of the U.S. Department of Education. He was much more effective than Lara Kaufmann, given a nuanced presentation that attempted to take both sides. One gets the impression that he is a very effective agency official.  But in the end, as one might expect, his positions end up promoting the “feminist” agenda of Ms. Kaufmann.

Galanter has some not unpersuasive arguments in favor of the current system.  For example, in the abstract, it seems less unreasonable to me to have a preponderance of the evidence standard than I first thought (I am not endorsing it, just saying that is not entirely unreasonable).  But when moving from the abstract to the present system, where the definition of sexual assault in terms of “consent” is unclear, subjective, and vague, having a preponderance standard is seriously problematic.  Yet, Galanter appears to have no problem with it.

4. The fourth presenter was Greg Lukianoff, President, Foundation for Individual Rights in Education. Lukianoff’s gave a strong talk that focused on the rights of accused as well as that of possible victims. He argued for having the police investigate these matters, not the colleges.

Many people take this position, and there is something to it.  But it is only better if the police investigation is superior and there are some cases where the police seem infected by political correctness as well.  So while I am somewhat sympathetic to moving these investigations to the police, the more basic point is that investigations – whether by the colleges or the police –should take into account both the due process rights of the defendants and as well as the legitimate concerns of the accusers.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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