Compassion Is No Substitute for Competence

The New York Times recently featured a front-page story that focused on Stanford University’s procedures for adjudicating on-campus rapes, implicitly criticizing the university for demanding that its hearing board reach a unanimous decision of guilt before disciplining any student offender. The university, which disputed the article, seemed to suggest that anything less would be unfair to the accused rapist.

But it is not the demand for unanimity that is offensive, but the very idea that the university -- any university -- is competent to hear such a case. Such procedural details are not the problem, and suggesting that they are is both a distraction and an implicit acceptance of the notion that Stanford is competent to judge such matters. The simple fact is that universities have no business hearing such cases in the first place. Notwithstanding concerns for Title IX, they should never have been allowed to pursue the matter -- at least not exclusively or without full disclosure to the alleged victim of the downsides of pursuing such a course of action. For, by doing so, they both compromise justice and public safety, as well as inadvertently legitimize the stigma of rape itself.

Stanford and all other institutions of higher learning are woefully unprepared to handle the complexity of rape cases, lacking sophisticated evidentiary processes, forensic skills and the compulsory force of the law required of such cases. University hearings are invariably shrouded in secrecy, lack transparency, fail to produce an accessible transcript or mechanism for appeal, and are riddled with procedural quirks and flaws that range widely not only from campus to campus but also from administration to administration. There is little standardization and ample room for chicanery, backroom deals and institutional bias. Neither the accuser nor the accused enjoy the rights accorded by a court of law and the Constitution. For both sides in such a tribunal, due process matters.

Over the years, both as a journalist researching a book and articles, and as a professor comforting students who have been traumatized, I have interviewed more than a dozen young women who have said they were raped on their campuses. What they all have in common is the sense that they were twice victimized: once by the rapist, once by the university that heard their case. Many complain of the suffocating secrecy to which they were subjected. Others say they were banned from introducing the cases of other women who claim that they, too, were raped by the assailant. Still others say that even when the rapist is judged to be guilty, the punishment is often laughably lax -- a term suspension, an essay, official censure. And even those who are thrown out of college start with a clean slate -- the record of their rape shielded from public view and the next institution that accepts them. The criminal court is armed with forensics and must take into account the safety and well-being of the greater community. In contrast, the campus hearing is often a he said, she said spectacle that looks no further than the status of two students.

Such hearings reflect a measure of university hubris, a presumption that higher education officials are up to the task. And why rape? Why not murder? Why not arson? No campus in the nation would suggest that these other crimes go unreported or that a body of deans and other administrators are qualified to hear such cases. A university has as much authority and insight handling a rape case as a prosecutor and detective have drafting learning objectives and curricular requirements.

Let’s state the obvious, although apparently not so obvious to universities: rape is a felony, a crime of the most severe order that can and does on occasion lead to felony murder and that invariably produces lasting psychological, if not physical, scars. Many of the alleged perpetrators are not students who have merely gone astray and who need to be disciplined or counseled. They are dangerous criminals, predatory creatures who are likely to strike again -- and often do. The university hearing mechanism is ideal for trying cases of cheating, plagiarism, vandalism or harassment. They are well suited for meting out penalties that range from a loss of academic credit to expulsion. But rape is several orders of magnitude above such offenses, and the first order of business after a finding of guilt is to remove the offender from the community and place that person behind bars. A number of the women whom I interviewed later found themselves in classes with their assailants.

Of course, universities say they are acting out of the sui generis nature of rape, that the trauma of the crime necessitates special handling. Many women do not want to come forward after an assault, fearing the public attention, the spectacle of a trial, the delving into their sexual history, the cross-examination phase and the like. And yes, many rapes on and off campus go unreported.

But the accommodation that universities make for rape victims only exposes other potential victims to the assault down the line, and in most cases, university rape counselors are instructed to listen, comfort and advise but not to encourage the women to report the crime to the police. They merely mention it as one of many options. That may sound sensitive and enlightened, but among the women I have interviewed, a number say they were not the first victims of the attacker.

I would argue that universities have an affirmative obligation to make clear to the victim that, while they will respect their choice, there could be consequences for other people if the crime goes unreported. Universities are, after all, a part of a broader community.

And not all universities are acting solely out of compassion or magnanimity. They have their own unspoken interests in the outcome. No university wants to be associated with rape or have its reputation as a safe haven for young people undermined. They are required to submit so-called Clery reports of serious crimes to the U.S. Department of Education, and these are a matter of public record. But compliance with the reporting requirements is uneven and sometimes subject to discretion and abuse.

Other interests are at work, as well. Nothing frightens away potential applicants faster than a rash of on-campus rapes. While never overtly stated, concerns about protecting the reputation of the university for its prospective candidates, parents and donors is often just below the surface.

What’s more, universities -- particularly those whose robust athletic programs enjoy television revenues, bowl games and appearances in the NCAA men’s basketball tournament -- have a definite pecuniary interest in maintaining the eligibility of their star athletes. For Stanford, the game is football, and yes, the young man accused of rape in the most recent case is a player on that vaunted team -- currently ranked among the nation’s top 20. At such institutions, the marquee sports are cash cows that help fund other athletic programs and draw additional applicants, and are a recruiting magnet for future standout athletes. A rape case involving a member of any such team can have a devastating impact on the program.

And it is no secret the celebrity and ego that goes with being a star or big man on campus has produced more than its share of offenders. But because the hearing process is shrouded in secrecy, it is virtually impossible to determine to what degree, if any, the athletic department has brought pressure on the process.

Great universities like Stanford put their integrity at risk when they conduct themselves in secrecy and handle matters that are beyond their rightful purview. They raise the specter of hypocrisy each time they conduct such hearings. It matters not that the participants in such hearings are earnest or that they do their homework. Rape transcends the abilities of such forums and is trivialized by the notion that it can be dealt with by a committee lacking any of the complex apparatus that has evolved to handle serious criminal matters.

The complexities of such cases test the limits of the criminal justice system and the wisdom of jurors guided by judges, the rules of evidence, the demands of the Sixth and Fourth Amendments, the appellate procedures, forensic materials, and on and on. Whether the university tribunal’s standard is unanimity or majority vote, the underlying measure is still merely “a preponderance of the evidence” -- a simple “more likely than not” rule that falls far short of the criminal court’s “beyond a reasonable doubt.” And how much less able are the stewards of a college campus, tainted by their aversion to publicity and the potential for self-interest, to adequately discharge the responsibilities of a rape hearing?

A university is on solid ground in respecting the rights of rape victims to choose their forum and to decide where and how and whether they will pursue such matters. But it ought not delude itself into overestimating its abilities nor imagine that it is protecting the campus and wider community by meeting, as it does, behind closed doors. It is undeniably in a terribly difficult position -- balancing the wishes of the victim, the rights of the alleged assailant and the safety of the community -- but it is neither disinterested nor professionally competent to stand in judgment of such matters.

Its responsibilities to the administration of justice, to the well-being of the community and to the safety of other students dictates that it advise rape victims that theirs is not the only interest at stake; that the university is no substitute for criminal court; that the privacy and discretion they gain by allowing the university to handle the matter without the intervention of the courts may be outweighed by the secrecy, caprice and lack of professionalism encountered in a campus hearing; and finally, that there are profound and compelling societal reasons why they should at least consider taking the matter to the police -- namely, that rapists belong behind bars, not on suspension or in the classroom.