by Sherry F. Colb
Years ago, I wrote an article entitled "'Whodunit' Versus 'What Was Done': When To Admit Character Evidence in Criminal Cases," published in the North Carolina Law Review. In it, I discussed two types of cases that present themselves in criminal court. One is the "whodunit" case, in which everyone agrees that a crime was committed, but the prosecution and defense disagree about who committed that crime. The prosecution says that the defendant is the perpetrator and the defendant says that someone else, named or unnamed, is the real perpetrator. The other kind of case is the "what was done" case, in which the prosecution and defense agree about who the relevant players are (unlike in the whodunit case) but disagree over what happened. Here the prosecutor claims that the defendant did something criminal and the defense claims that it was the alleged victim (or perhaps no one at all) who did something criminal. In my article, I proposed, among other things, that propensity evidence (that is, evidence that a person has a particular character trait and therefore acted in a manner consistent with that trait) ought to be inadmissible in whodunit cases but admissible in what was done cases.
In this post, I want to use the "whodunit" and "what was done" framework to talk about the announcement by Betsy DeVos, Donald Trump's Secretary of Education, that the Department of Education would be rescinding the Obama rules (contained in a "Dear Colleague" letter), a rescission that formally took place on Friday. My column for this week discusses and defends two of the items that are found in either the Dear Colleague letter itself or in policies that some states have adopted for their campuses in response to the letter: the preponderance standard and the affirmative consent requirement. Here I want to explore the cost to the victim of sexual assault when she (or he, but I will use "she" because women are the much more frequent victims of sexual assault on campus) is not believed by the authorities to whom she goes for help.
One of the reasons that critics of the preponderance standard cite for having a higher standard is that the accused has a great deal to lose if found to have sexually assaulted the accuser, while the accuser has little to lose, one way or the other. It is true, I would acknowledge, that an accuser will not be expelled from school or otherwise disciplined by the authorities if the tribunal hearing the case rules against her, while the accused probably will be expelled and may have a hard time finding another school that will admit him if he is found to have committed a sexual assault. To suggest that the accuser has nothing to lose, however, ignores the meaning of a finding of innocence in the context of a "what was done" case.
In a "what was done" case, unlike in a "whodunit" case, the accuser is unlikely to be "mistaken" about the events in question. While a stranger-rape victim could easily err about the identity of her assailant, the same is not true for an acquaintance rape victim. The latter is typically in a "what was done" situation, where she knows who her alleged assailant was, and her story is typically very different from the story told by the accused, such that one or the other of the parties is almost certainly lying. An acquittal in a stranger rape case is accordingly less directly insulting to the alleged victim than it would be in an acquaintance rape case, because there is nothing culpable or evil about making a mistake (due to poor eyesight, a faulty memory, or the garden variety difficulty people have in making accurate identifications). In an acquaintance-rape "what was done" case, by contrast, the authorities who find the accused innocent are implicitly finding that the accuser is a liar. And campus rape cases are virtually always going to be "what was done" cases.
Being ruled a liar by the people in control of one's education is bad enough under ordinary circumstances, but a person who has been sexually assaulted is not living under ordinary circumstances. She is instead suffering from the trauma of a sexual assault and likely already blaming herself for what happened, because society teaches women to blame themselves for their victimization. Should she have worn different clothes? she wonders. Should she have been more assertive about her refusal to have sex? Should she have screamed? All of these recriminations are likely to come back at her with extra force after an official tribunal has decided that she was lying when she gave what were in fact truthful statements about being sexually assaulted. The tribunal is officially engaging in denial about what happened to her and thus implicitly telling her that what she is living is not really happening. In addition to being insulting and traumatic, this can be crazy-making. She knows (by hypothesis because we are assessing cases of mistaken rulings), that she was sexually assaulted, but those around her have ruled that no sexual assault took place and that she consented to whatever might have happened to her.
When women on campus find themselves stigmatized as liars and false accusers, they become part of a tradition of rape victims whose experience is negated by those around them. Not that long ago, as late as the early 1970's, men could rape their wives with impunity, because a rape committed by a husband against his wife was not considered a rape under the law. Every state has modified its law so that no state permits marital rape though some classify it (or some degrees of it) as less serious than other rapes, in terms of penalty or in terms of how much violence must be proved. Moreover, the thinking behind the exemption has not disappeared. That thinking holds that rape is a crime when the wrong person forces himself on a woman rather than a crime when anyone violates a woman's or a man's body against their will. A husband is the correct person, so people may be skeptical about a wife's claim that her husband raped her. Similarly, when women on a college campus go on dates with their male colleagues and otherwise indicate potential interest, they become "fair game."
It is almost as though the inquiry centers on "waiver" of a right not to be raped rather than consent to have sex. By acting out the part of the "correct" person with whom a particular man may have sex (perhaps by dressing provocatively or by going out on a date with the man), the woman is understood to have "waived"--forfeited--her right not to be sexually assaulted. By calling sexual assaults committed under these circumstances "not a sexual assault," then, the people with the power to say what happened simultaneously deny that what took place really took place and demote what took place to the status of something unworthy of outrage and punishment. The same magic was accomplished by the marital rape exemptions that polluted our laws until the mid-1970's: they held that when a man raped his wife, he didn't actually rape her, while simultaneously holding that a man forcing intercourse on his wife has done nothing worthy of anyone's attention or concern. Denial thus works as devaluation as well. (For more on the relation between denial and devaluation, you can check out my very first law review article here).
In one of my classes, I had a student who told me about being sexually assaulted by a classmate. She was having a difficult time when we were covering topics related to rape, because they brought back the whole experience for her. She told me that her assailant was not asked to leave or otherwise punished for his actions. I do not recall at this time whether there was a fact-finding proceeding at which the accused was ruled innocent or whether the official people to whom my student went with her accusation did not take the matter further. Either way, someone either did not believe what she told them or did not think it was very important (or both), and this had a very harmful effect on this student's psyche as well as her sense of safety and security.
It is, of course, true that sometimes an accuser makes up an accusation that is false, and that is why we have a fact-finding in the first place. Because the burden of proof is on the side of the accuser, there is in effect a presumption of innocence, though it (rightly) is not nearly as strong as it would be in a criminal trial, where the stakes for the two sides are more lopsided. But even in a criminal case with the beyond-a-reasonable-doubt standard--and thus even more so in a civil case with the preponderance standard--the presumption of innocence should not mean a presumption that the accuser is lying. People in the role of fact-finders should listen carefully to both the accuser and the accused and try to determine who is telling the truth. In doing that, they should consider the fact that any accused person has a systematic reason to say they are innocent, whether or not it is true. The accuser, by contrast, has no such systematic reason to lie. The so-called "swearing contest" between the accuser and the accused should therefore be no more of a contest than that which we have when a victim of a stranger rape says that the accused is guilty and the accused says he is not, a context in which people tend to think of the victim as an "eye witness" who is instantly credible.
As I acknowledge in the column, the Obama administration's campus sexual assault program was sometimes implemented in a flawed manner that resulted in injustice to accused men. That fact could have led to reasonable tweaks to the policy. However, by completely abandoning the approach, the Trump administration has taken a giant step in the wrong direction, as it broadly signals that campus sexual assault is not a serious problem. Bringing a heavy dose of skepticism to accusers in the acquaintance rape context is inappropriate, and such skepticism largely reflects the fact that some people continue to think that "real rape" requires a stranger with a knife who is uncontroversially the "wrong" person to be forcing sex on his victim.