Can We Balance the Rights of Alleged Victims and Alleged Perpetrators
I once wrote that the Obama administration should be commended for its efforts to raise awareness of campus-based sexual violence and harassment.* Not all agreed that this was a good thing though with many viewing the increased emphasis on victims as an overreach that infringed on the rights of schools and accused parties. The Trump administration was apparently among these dissenters as Secretary of Education Betsy DeVos recently announced plans to shift course.** Under her watch, we can expect policy changes intended to provide schools with more flexibility in adjudicating accusations and additional recourse for accused students.
This all begs the question if there must be a push and pull between alleged victims and alleged perpetrators. Is there a zero sum game in which increasing the rights for one necessarily means a reduction in rights for the other? This shouldn’t be the case on the face of it. One would like to think that our judicial systems are capable of investigating an allegation impartially and fairly. And, as a former student affairs professional, I have an admittedly biased belief that the majority of folks working in schools have a desire to get things right and a concern for the welfare of all students.
However, my gut tells me that we do indeed have to choose priorities. Administrators will inevitably encounter incidents in which the evidence and testimonies don’t lend themselves to clean judicial conclusions. Consent is either present or it isn’t but the evidence of it available to third parties is often imperfect. In those instances, whoever the culture or policies is used to awarding the benefit of the doubt will have their testimonies elevated.
We see a high-profile discussion on who deserves the benefit of the doubt in the public accusation against Supreme Court nominee Brett Kavanaugh. We have a front row seat to America’s attempts to balance its belief in the presumption of innocence against its burgeoning interest in amplifying the voices of victims. Just like schools, the end goal for the federal government is not determining appropriate criminal sanctions but simply to answer the question of whether or not an accused party deserves the honor of being permitted in their community. The Government has displayed anything but a clear process to figure this out. So how are schools to get things right when the highest levels of our government struggle with all of the massive resources at their disposal to include the FBI and congressional hearings
I cannot speak definitively as to whether or not schools can be reasonably expected to fully balance the rights of alleged victims and alleged perpetrators but I do know that whether or not a violent act can be demonstrably proven is a separate question from whether or not that act has done harm. Just as there are certainly people that are wrongly punished, there are plenty of malicious and harmful acts that go unpunished. The way forward remains to shift the culture to a place where imperfect judicial systems don’t have to step in as often as they must now. So long as some young men and women grow up learning that assurance of consent is optional when accessing the bodies of others, then we’re going to have problems. Policies and laws will come and go subject to political whims but the culture must march forward in helping America’s youth to strive for encounters that need not later be adjudicated by third parties.