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Dumbing Down the Charge of Rape

Wendy McElroy

Dumbing Down the Charge of RapeOriginally posted this morning at the Freeman Online. TO LEAVE A COMMENT please click here. I will be visiting the comment section of this article several times today to respond.

On April 4 the U.S. Department of Education’s Office for Civil Rights (OCR) instructed every college and university that accepts federal funds directly or through student loans – that is, virtually every institution of higher learning in the country – to use the “preponderance of the evidence” standard when adjudicating on-campus accusations of sexual harassment and sexual assault rather than the “beyond a reasonable doubt” standard used in criminal courts.

College administrators have long been criticized for not respecting the due-process rights of accused students during such adjudications. Now the OCR wants administrators to go even further. The stakes are high for an accused, who is typically male. His academic career, reputation, and future job prospects can be shattered by a guilty verdict. But more than this, it is common for the police to become involved during or after an adjudication. Thus the accused risks criminal charges for which the college process can constitute supporting evidence.

Under OCR policy, students accused of serious crimes will be judged by the civil court standard of proof according to which a plaintiff’s evidence need only “tip the scales” rather than the higher criminal court standard according to which a defendant must be proved guilty beyond a reasonable doubt. In other words, a student accused of sexual assault will be judged by the same lawsuit yardstick used to assess whether he was responsible for a fender bender or back rent.

Protecting Hypothetical Victims

A common argument for lowering the standard of proof is that it’s necessary to encourage future victims to come forward. In other words, when the due-process rights of real persons are pitted against hypothetical future victims, the hypothetical victims win.

Mainstream feminism deserves much of the credit … or infamy for this change. In the 1990s mainstream feminist groups began to actively promote use of civil courts in sexual assault cases. The Listening Ear — the oldest all-volunteer crisis center in America — distributes the pamphlet “Pressing Charges in Civil Court” (pdf), which advises, “The civil court is an alternative to criminal charges.” It is a way to impose penalties on an accused’s pocketbook and reputation even if the accusation is not supportable in criminal court. This is now an accepted practice.

Moreover, because criminal and civil courts are based on distinct paradigms of law and address different matters, an accuser can pursue both approaches without tripping over double jeopardy.

Different Standards

Criminal law deals with offenses deemed to be committed against “the people” and justifying punishment by imprisonment, at least in more serious cases. Thus due process and high standards of evidence are required.

Civil law deals with wrong against individuals, including breaches of contract and torts. Civil penalties are generally financial and are intended as restitution. Thus a far lower standard of proof and due process exists.

“Pressing Charges in Civil Court” notes the lower standard as a particular advantage in rape cases, which often amount to “the defendant’s word against the plaintiff’s … with no other witnesses.” Another advantage: “[A] civil case does not require a unanimous [jury] decision in favor of the plaintiff”; civil jury trials only require only nine of 12 jurors to agree. Moreover, “civil court allows you to sue any third party … for contributing to the rape.” For example, an employer who did take a prior complaint seriously could be liable. The purpose here is not merely to deepen the pockets of defendants but also to “force” third parties “to take sexual assault more seriously.”

The pamphlet cites “successful” civil court cases dating from the mid-1990s — the time when the practice of lowering standards and “believing the victim” began to gain traction, especially academia.

The trend will not change easily. For one thing, the accuser is not the only beneficiary. Another beneficiary is the adjudicating authority itself. College bodies that sit in judgment of students accused of sexual assault have been officially freed from the restraints of hard evidence. Authorities tend to jealously guard their own power.

College has just become more dangerous for males.

For more commentary, please visit www.wendymcelroy.com

Posted on: Wednesday, June 8, 2011 - 00:26

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Elderly Woman with Neck Brace Patted Down

David T. Beito

Posted on: Tuesday, June 7, 2011 - 10:14

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Nanny State Attacks Jewish, Muslim Manhood

Jonathan J. Bean

This week, a “God blogger” published a Wall Street Journal column highlighting the “circumcision wars” in California. The “intactivists” opposed to circumcision are up against Jews and Muslims (among others) in San Francisco. I’m betting with the latter groups. I think circumcision is barbaric and demeaning to men but it doesn’t rise to the level of suttee or honor killing. So let them cut away!

Normally, secular folks howl at Christians because their beliefs supposedly contradict “mainstream science.” If Christians, Muslims or others say “God commanded us to do ‘x’ or believe ‘y,’” then those people of faith are put down as Neanderthal know-nothings. This is an old script in the West, although the academy and media now bow to death threats from radical Muslims and will never, ever offend with cartoons, satire, or other disrespect the personage of you-know-who from Mecca. Not even hidden in a bear suit (ask South Park creators). That simply wouldn’t be kosher.

So, now, circumcision, which removes some of the most pleasure-dense nerves of the, er, male organ, is under attack from San Francisco Nanny State liberals. (To call them “liberal” is a misnomer since they are profoundly authoritarian but the American lexicon for politics is upside down).

Nanny Staters in San Francisco weren’t pleased when Jon Stewart merrily mocked their measure banning Happy Meals.

Stewart happens to be Jewish. Hmmm. Perhaps this is payback time?

Are Jews, Muslims going to join Jehovah Witnesses and others in having their religious practice scrubbed because it is “unscientific”?

Will we see “back alley” mohels?

Did Obama issue a double entendre when he said he would use a “scalpel” on the budget? After all, where did he say that some Americans “cling to their guns and religion”?

San Francisco.

The plot thickens!

The penis wars continue.

Next up: commentary from Congressman Wiener on the issue. Can a Jewish congressman support a federal ban on circumcision? Would he respect such a ban? Inquiring minds want to know.

***

For more on religious freedom from the State, read:

Wendy McElroy, “The Origin of Religious Tolerance: Voltaire”

Bruce Murray, Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective

David Theroux, “C.S. Lewis on Mere Liberty and the Evils of Statism”

Posted on: Sunday, June 5, 2011 - 00:01

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Expel These Vultures

Robert Higgs

If a buzzard were to fly about three miles to the southwest from my home in rural St. Tammany Parish, Louisiana, he would come to St. Joseph Abbey and Seminary College, a monastery and seminary maintained by Benedictine monks. When he arrived, however, he would find other vultures already hovering over the abbey.

These vultures are funeral directors whose cartel privileges are legally enforced by the Louisiana Board of Embalmers and Funeral Directors, one of the countless predatory bodies the state legislatures have seen fit to create during the past century and a half in order to protect unscrupulous sellers from honest competition and, along the way, to grease the palms of the co-conspiring politicos, all at the expense of consumers.

A few years ago, seeking a new means of supporting the abbey and themselves, the monks began to produce and sell simple yet entirely serviceable wooden caskets. Where’s the crime in their doing so? Well, some people are willing to take any despicable action whatsoever to suppress competing sellers. One such despicable party was Boyd L. Mothe, Jr., vice president of Mothe Funeral Homes, who brought a formal complaint against the abbey’s casket sales in 2008, based on the state’s restriction of the trade.

On Monday, June 6, a trial will take place in U.S. District Court in regard to the abbey’s plea for declaratory and injunctive relief from the state’s enforcement of its law that only licensed funeral directors may sell “funeral merchandise.” The monks are being represented pro bono by the Institute for Justice.

Let us pray that the court sees fit–if only to do something out of the ordinary–to reach a just decision in this case. The monks surely deserve relief from the menacing presence of the vultures hovering over their beautiful monastery.

Posted on: Saturday, June 4, 2011 - 19:54

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We Should not Ignore this One

Keith Halderman

The more comprehensive as well as the more impartial a Commission charged with studying marijuana use conclusions are, the more likely its report is to be ignored and have no effect on public policy. This occurred with studies by the British in India, the U. S. Army in the Panama Canal Zone, the Mayor of New York, a panel appointed by Richard Nixon, the Canadian Senate, the Dutch government and the Jamaican Parliament despite the fact that their member credentials were unimpeachable. In every one of these cases and many others besides they found that marijuana prohibition caused far more problems than it ameliorated and should be abolished. Yet it still exists and is now being enforced by the Obama Administration with relentless zeal.

Now, The Global Commission on Drug Policy associated with the UN has declared that war against people who use certain kinds of drugs is “a failure and urged nations to consider steps such as legalizing marijuana to help undermine the power of organized crime.” If history repeats itself as it has so many times before we will hear little more about these conclusions and politicians will continue to disregard the truth that drug prohibition is unconstitutional, unjust, racist, destructive, inhumane, expensive, immoral, lethal and benefits no one except busy body moralists, prison guard unions, police swat teams and politicians seeking to fool people into believing they are tough on crime. If the past is any clue to the future, our leaders will continue to enforce these symbolic drug laws violated on a daily basis by millions of people with no harm through simple use to anyone, not even themselves. Therefore the blood on the hands of politicians, commentators, and ordinary citizens who support this horrendous deadly policy will continue to accumulate.

Cross posted on The Trebach Report.

Posted on: Thursday, June 2, 2011 - 22:07

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Some Thoughts on Gary Johnson

Steven Horwitz

Earlier today I participated in a conference call with a handful of bloggers chatting with the libertarian Republican presidential candidate former New Mexico Governor Gary Johnson. I wanted to share some of his comments on economic and other issues as well as a few reflections of my own.

First, the format was really nice as it was just a handful of us and Johnson was almost totally "unhandled." It was not unlike being at a conference table with him as opposed to a more formal context. It also struck me that he's learning to talk to a libertarian audience as his use of language seemed pretty consciously chosen in places and he's developing a sense of which buttons to press with that audience. He also comes across as pretty smart and surprisingly intellectually curious, as in an answer to a question on same sex marriage he admitted that he'd like to know more about the constitutional issues involved before he decides for sure what, if any, role the federal government should have in overruling state marriage laws.

On to substance...

I asked him about monetary policy and his summary answer was: "I would abolish the Fed given the chance to do so. I would propose a balanced budget for 2013 and I would not raise the debt ceiling." I don't think he called for a balanced budget amendment at any point during the conversation, but it wouldn't surprise me if he supported it, especially being a former governor.

In response to a more general question about regulation and markets, he said "I really am a free market guy" and launched into a decent defense of the importance of markets and the problems of regulations. What I liked was that he was invoking the idea of unintended consequences quite a bit in talking about how what we think are good ideas usually backfire. He was strongly opposed to cap and trade and called it an "economy killer." He also talked about how he applied cost-benefit analysis to a variety of regulations while governor and that he would bring that mindset if he were elected.

He also mentioned business cycles and noted that the Fed and monetary policy exacerbates whatever smaller fluctuations markets naturally might have. He also noted that we're better off letting depressions cure themselves. He said he would not have favored any of the QEs including any more beyond QE2. He clearly does not have Ron Paul's knowledge of economics or ability to communicate economic ideas, but he said many of the right things though not as concisely and as eloquently as I think he will need to. In general, he needed more really good one-liners.

On some other issues of interest to Liberty and Power readers (and these are paraphrases):

"I favor abolishing all foreign aid, but I think military alliances are still important."
"If I had been president in 2001, I would have never have established the TSA and I would have left security to the airlines and the airports."
"I used to support the death penalty until I thought seriously about the ways in which government screws up prosecutions and makes real mistakes. Now I oppose it."
On illegal immigrants: "There's a difference between 'amnesty' and 'citizenship'. I want to make it easier for them to get a work visa and then get on the path to citizenship. Amnesty means giving them a two year period to get that visa without being kicked out. No one should jump the line, but they're here and let's get them working legally. That's how you secure the border."
He opposed the war in Iraq from the beginning and thinks Libya is unconstitutional. He was okay with Afghanistan at first but thinks we should have been out after 6 months. No way we should still be there today.
He would support Supreme Court justices who support "original intent."
On abortion: "I fully support a woman's right to choose up to the point of fetal viability. I did sign a late-term abortion law in NM and I do support counseling and parental notification laws."
On same-sex marriage: "I support gay unions and think they should be legal, though I still think this is a states rights issue. However, I'm open to the argument that this is like civil rights in the 60s and that there's a constitutional justification for a federal role. I simply don't know enough about the issues involved yet and I'm interested in learning." He also said "I'd like the federal government to be out of the marriage business altogether."

It was an interesting conversation. I don't think he or his campaign has thought enough about how to reach what I think is a large group of young "latent libertarians" who would support him if they knew him and his positions. If they can figure out how to use social media and technology really well, they could reach that group and possibly rally them around him as he's got a youthful image that they would find attractive.

Is he a perfect candidate from a libertarian perspective? Nope. At least not mine. But he might be as good as one could ever expect from a major party. I'm going to pass on the comparison to Ron Paul, other than to say again that RP's knowledge of economics and his comfort level in communicating it is a real advantage. On the other hand, I think GJ is better on social issues and does not have RP's history and the baggage it brings. I think it's much harder to pin the "kook" label on Johnson.

As a pro-choice, pro-gay union, pro-immigrant candidate, his odds of winning the GOP nomination are near zero unless he can motivate a whole bunch of young voters to get into the primaries. Ironically, as he said in the conference call, he won the NM governor's race by persuading people that he would be the strongest Republican in the general election. That may well be true nationally also.

If you're going to vote in 2012, he's worth a look. You could do a lot worse.

Cross-posted at Coordination Problem.

Posted on: Wednesday, June 1, 2011 - 14:14

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