Top Law Journal: Demanding Due Process for the Accused in Title IX Cases Is Just ‘Propaganda’

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By Jillian Kay Melchior | 1:58 pm, June 29, 2017

The Obama administration expanded the federal government’s interpretation of the 1972 law prohibiting gender discrimination, instructing universities to use Title IX to adjudicate sexual misconduct and assault.

That system requires a mere “preponderance of evidence” standard—a far cry from “beyond reasonable doubt”—to punish an accused student. Under this new regime, accused students, who are usually male, lack many of the most basic due process protections, several prominent critics have said.

But a new paper published in the Yale Journal of Law and the Humanities argues that those critics’ objections, rooted in a desire for due process for the accused, are nothing more than “propaganda” rooted in rape culture.

Lawyer and writer Annaleigh Curtis is wary of those who invoke due process precisely because it’s a legal value respected by both the right and the left. So, she says, male students’ demands for due process can “serve as a discussion-ending propaganda.”

She acknowledges that propaganda can contain elements of truth. Nevertheless, she says, propaganda is inherently driven by ideology.

“I make the case that what is often called rape culture is the ideology that most closely informs [due process demands] qua propaganda. … Because ideologies do not exist in isolation from other ideologies, it seems likely that rape culture, whatever it turns out to be, intersects with racism, classism, and a belief in objectivity and neutrality as both attainable and commonplace.”

Considering ideologies like racism and classism, Curtis says, “can help us push back against [due process demands] without pushing back against due process. Once we recognize [due process demands] as propaganda, which seeks to add false assumptions and myths to the common ground, we have ‘the option of blocking the move’ through conversation, e.g., through negating the assumptions.”

In other words, Curtis herself pays lip service to due process, but she wants to prevent others from invoking it during debates about the fairness of Title IX. “’Blocking the move’ through conversation” is an academic way of saying you want to silence your opponent, forbidding him from making certain arguments for fear that they may be too persuasive.

Curtis then tries to justify such censorship, saying that any claims that Title IX operates with a bias against men are also “rape culture.”

“Rape culture as an ideology that structures our world makes any attempt at achieving a fair process for both accusers and accused begin to look like an attempt by a feminist ruling class to subjugate all men at the whims of anyone who decides to make a complaint,” she writes.

By demanding due process rights for men, Curtis says, critics “exclude victims and their advocates from having a voice in the discussion by casting them as already being in control of the process… demanding an unfair adjudication… and benefitting from the anti-male bias of universities.”

Consequently, Curtis argues, even the most basic discussion of due process and Title IX can “erode reasonableness” and often “has the effect of reducing empathy for victims of sexual assault by making them seem both powerful and suspicious, while also activating the fear of false allegation.”

Follow Curtis’s line of logic, the current Title IX process makes sense, albeit in a warped fashion. “Innocent until proven guilty” is a hallmark of the American legal system—but in the eyes of Title IX proponents, assuming the innocence of the accused means assuming the guilt of the accuser.

Title IX more or less tries to split the difference; to punish an accused, the campus adjudication system needs only to be 50.01 percent certain that a rape occurred.

The irony: Only a true propagandist could portray such an outcome as just.

— Jillian Kay Melchior writes for Heat Street and is a fellow for the Steamboat Institute and the Independent Women’s Forum.

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