The Presumption of Guilt

Liberals used to care about the rights of the accused. Now, they care more about identity politics.

There isn’t much of anything that I agreed with the Trump Administration about, but I think they got at least one thing right. His Education Secretary, Betsy DeVos, rolled back Obama era “guidance” (read: “mandate”) to strip those accused of sexual assault or harassment on college campuses of their fundamental rights.

The Obama rules, provided in a “Dear Colleague” letter, but short of actual legislation or formal rules, suggested that any school that received Federal money (basically, all of them) had to tip the scales in favor of the accuser. The standard of proof was reduced to “a preponderance of the evidence,” the accused could not question the accuser, and one person could function as both investigator and judge.

And it expanded the definition of sexual harassment to a ridiculous extent. As staff writer Emily Yoffe wrote in The Atlantic, “It resulted in a radical inflation of the definition of sexual misconduct on campus to potentially include virtually any sexual encounter—from behavior that could meet the criminal definition of rape, to jokes and unwanted flirtation. And schools, desperate to avoid displeasing federal Department of Education investigators, established Title IX procedures that flouted the rights of the accused.”

That was all bad enough, but given the climate on campuses these days, the pressure was on administrators to assume guilt in these cases. If we were talking about campus parking tickets or late library returns that would be one thing; but these are very serious circumstances that demand protections not just for the alleged victims but also for the accused.

In a May 19th post in Persuasion, Richard Reeves, a fellow at Brookings, worries that Pres. Joe Biden is gearing up for a return to the policies of his old boss. Biden ordered a 100 day review of these policies and he has appointed the architect of the Obama guidance to a key post in the Department of Education.

When someone is accused of sexual assault they are being accused of a serious crime. Just the charge alone can change their lives forever. Being thrown out of school on those charges — without ever getting their day in court — could ruin a promising young life.

Of course we should want justice for the victims of assault and harassment. But that’s the point. We should want justice, not retribution.