“One rape is one too many, one assault is one too many, one aggressive act of harassment is one too many,” said Education Secretary Betsy DeVos on Thursday. It was an unobjectionable sentence that could have been spoken by any former Obama administration official. Only at the end did she reveal herself to be a Republican: “One person denied due process is one too many,” she insisted.
At some point in the last decade, the earth shifted beneath our feet. DeVos’s second assertion, the bedrock assumption that serves as the foundation of all jurisprudence in the Western world, has suddenly become controversial.
In advocating due-process standards for the prosecution of violent crime, DeVos was announcing a department-wide review of Obama-era guidelines, which prescribe certain methods for adjudicating sexual-harassment and sexual-assault cases on college campuses. The Obama-administration guidelines were hardly a set of friendly recommendations; failure to adopt the new standards would put a school’s federal funding at risk. Critics of those guidelines argue that they make a mockery of justice, cheapen the crime of sexual assault, and victimize the falsely accused. DeVos thinks those complaints deserve a hearing. Democrats, apparently, don’t.
Advocating blind justice indifferent to the identity of the accused or accuser is not yet a position exclusive to the GOP, but the Democratic Party seems intent on ceding it to them.
“This administration’s lack of compassion for the survivors of sexual assault is shameful,” wrote Democratic National Committee CEO Jess O’Connell in reaction to DeVos’ speech. “Banner day when Republicans can find women to do their dirty work against other women,” read a subsequent tweet from O’Connell accusing DeVos of being a traitor to her gender. “Another day, another attack on civil rights.”
The rest of the progressive commentary class wasn’t any more circumspect. “Survivors of sexual assault deserve to be believed and supported, not brushed off and blamed,” said Planned Parenthood’s Cecile Richards, echoing Hillary Clinton’s 2016 claim that alleged sexual assault survivors had “the right to be believed.” The New Agenda co-founder Amy Siskind declared DeVos’s decision to be “just the next stop on our path to authoritarianism.” When confronted by those who resented her antipathy toward due process, presumed innocence, and other Anglo-American traditions of jurisprudence, Siskind replied with a four letter word.
This scene-chewing passion is all that Democrats can marshal to support their Orwellian definition of civil rights. In the speech that set her critics off, DeVos cited a series of grave injustices resulting from the misuse of Title IX guidelines in the hands of activists. Reason Magazine’s Robby Soave cataloged several of these abuses. Among them is the denial of counsel both to victims and those accused; the freeing of abusers whose rights were violated upon appeal; the ruining of people who were later found innocent of any criminal charge; and, of course, the persecution of those who speak out against these grave injustices.
In some cases, activists have fought to prevent the adjudication of sexual assault cases from being taken to a court of law. There, alleged victims are often asked to testify to their traumatic experiences, and the evidentiary standard to secure a conviction for a violent crime are far higher than Title IX’s “preponderance of evidence.” In campus tribunals, justice against the accused is meted out not based on confidence beyond a reasonable doubt but on just 50.1 percent confidence of guilt. And the Fifth and Sixth Amendment rights of the accused are often not honored.
This isn’t merely a conservative concern. There are plenty of liberals in center-left media venues that have forcefully attacked the evils that were the result of the Obama administration’s “dear colleague” letter. In 2014, Emily Yoffe penned an exhaustive and compelling case for Slate against the outrageous abuses of the civil rights of men that accompanied the efforts to protect women from an alleged epidemic of sexual violence.
“The higher education insurance group United Educators did a study of the 262 insurance claims it paid to students between 2006 and 2010 because of campus sexual assault, at a cost to the group of $36 million,” she wrote. “The vast majority of the payouts, 72 percent, went to the accused — young men who protested their treatment by universities.” She updated her case in a piece for the Atlantic published on Wednesday in which she exposes case after case in which both women and men are done awful wrongs in the name of karmic justice. “[M]any of the remedies that have been pushed on campus in recent years are unjust to men, infantilize women, and ultimately undermine the legitimacy of the fight against sexual violence,” she wrote.
In August, New York Magazine’s Jesse Singal outlined the dystopian case of a University of Southern California couple caught up in this perverse system. The Los Angeles Times reported that a USC football kicker Matt Boermeester and his girlfriend, Zoe Katz, a tennis player, were playfully roughhousing in public when they were witnessed by a neighbor who thought he saw abuse and who then spread the news. When Katz denied the charge, she was informed that she must be “afraid” to tell the truth about her abusive boyfriend and was accused of mimicking the stereotypically cowed “‘battered’ woman.” Boermeester, meanwhile, was suspended, barred from campus and prevented from even seeing his girlfriend. No crime was alleged. There wasn’t even an accuser. A Soviet-style denunciation was all it took to rev the system’s gears into action, and they went to work crushing young lives.
What Betsy DeVos is confronting isn’t just one misguided policy but an ideology. It is hardly limited to the college campus or the classroom. States like California and New York have adopted Affirmative Consent or “Yes Means Yes” laws, which expand the definition of prosecutable sexual assault. “Lack of protest or resistance does not mean consent,” read the California statute. “It makes it very easy for prosecutors to coerce plea bargains, or angry former sex partners to put someone in prison,” said Brookings Institution Fellow Stuart Taylor Jr. “They hardly even have to lie.” His low opinion of these new standards was shared by much of the legal community. At the 93rd annual meeting of the American Law Institute in 2016, a motion to amend their Model Penal Code to include affirmative-consent standards was struck down by voice vote.
Why do some Democrats believe they have to bend historic and objective standards of justice? Because they don’t think objective standards can achieve justice—at least, not justice as they envision it. For them, there is no truly blind justice. To be blind is, after all, to fail to take into account historical grievances, subcutaneous biases, omnipresent and overlapping networks of oppression, and the privileges enjoyed by those of fortunate birth. To distinguish a capricious accuser from a genuinely injured party is to shame future victims into keeping quiet. Social justice demands that deliberators consider these subjective factors, which is why the courts cannot be trusted. For conservatives like Betsy DeVos, this sounds a lot less like justice and more like old fashioned prejudice and persecution.