Women with “Believe” and other words written on their hands outside the U.S. Supreme Court after the vote to confirm Brett Kavanaugh to the Supreme Court, October 6, 2018. (Reuters/Jonathan Ernst)

There is no substitute for evidence and due process.

Through much of the last month, the American people have been treated to a version of the emotional and ideological argument that’s dominated the American academy for much of the last ten years. The argument goes something like this: Women rarely lie about rape. Thus, the failure of criminal or civil justice systems to achieve overwhelming rates of conviction or impose liability at the rates of predation means that fundamental reform is mandatory.


Consequently, we must make it easier for women to bring claims, protect them from the rigors of proving claims, and utilize decision-makers trained to understand and respond to the unique trauma of victims. Moreover, when considering sexual-assault claims outside of courts, understand that due process is less important when a man’s liberty isn’t at stake. After all, a campus court isn’t a criminal trial. It’s an evaluation of academic suitability.

The result of this argument has been wholesale national reform — part of it mandated by the Obama administration’s Department of Education, and part of it willingly undertaken by colleges themselves — that has caused universities to lower burdens of proof, channel serious claims into summary proceedings, restrict the ability to cross-examine witnesses, and even limit access to evidence in an effort to streamline the process of punishing sex offenders.

It’s been a disaster.


From coast to coast, accused students — typically men punished for sexual assault with barely a chance to defend themselves — are filing lawsuits containing often-shocking claims. Judges, accustomed to the value of due process, often find themselves stunned at the unfairness of campus proceedings. And if you think that wrongful convictions for sexual assault aren’t serious because the men don’t go to prison, well then talk to the young men whose careers and reputations are shattered before they’ve had a chance to build a life.


In the days after the Brett Kavanaugh confirmation, when the op-ed pages were still filled with examples of women’s rage, a California state court of appeals handed down a decision in a case against the University of California–Santa Barbara that should remind us all of the high costs of a rush to judgment. It should remind us all of the value of due process.

The facts of the case are relatively simple. After a night of drinking, a female student (“Jane Roe”) fell asleep on a mattress that was pressed up against a living room wall. Later that evening, a male student (“John Doe”) became intoxicated and lay down on the same mattress. She was under the covers. He was fully clothed on top of the covers, with his back to Jane. There were two eyewitnesses sitting on a couch, talking less than three feet away.


Jane testified that she woke up to discover that John was molesting her. She was too terrified at first to cry out and then finally, when the assault ended, screamed for everyone to get out of the apartment. John denied the claims and instead claimed that he first heard Jane’s story when “she woke [him] up by basically yelling about someone hurting her.”


The two eyewitnesses testified that it would be “physically impossible” and “not physically possible” for Jane’s claims to be correct. They saw Jane wake up “confused, disoriented, and mumbling in foreign languages.” They thought she was having a bad dream.

Jane reported the alleged assault to police, and two days later submitted to an exam by the city’s Sexual Assault Response Team. The police did not take any action against John. The university, however, did. After a hearing, it sentenced him to a two-year (eight-quarter) suspension.


The university hearing was a carnival funhouse of due-process violations. First, the university allowed a detective to testify about a report that allegedly indicated that “bruising/laceration [was] noted in the anal area” without producing the actual report. The parts of the report the university did produce did not contain any such language. Moreover, the detective couldn’t say whether the finding could have any other cause. Testifying about a report the accused wasn’t able to see violates the “best evidence rule” — an evidentiary standard that “precludes oral testimony to prove the content of a writing.”

That’s basic stuff, yet it was only the beginning of the university’s problems.

Next, the university only disclosed to John the day before the hearing the fact that Jane was taking an antidepressant called Viibryd. When John tried to ask Jane about the consequences of mixing Viibryd and alcohol, she declined to answer the question. When John tried to introduce evidence that Viibryd “has many side-effects” that “become severe when alcohol is consumed . . . such as hallucinations and sleep paralysis and night terrors” the university declined to consider it. The reason? He couldn’t produce a qualified expert.

As the court of appeals noted, this “placed John in a catch-22; he learned the name of the medication Jane was taking too late to allow him to obtain an expert opinion, but the Committee precluded John from offering evidence of the side effects of Viibryd without an expert.”

And that’s not all. John was forced to represent himself. His lawyer could only advise and support, but the university allowed its general counsel to “actively participate and to make formal evidentiary objections.” As a consequence, “A student, whose counsel cannot actively participate, is set up for failure because he or she lacks the legal training and experience to respond effectively to formal evidentiary objections.”

So, let’s review — the university violated a basic rule of evidence, withheld key information from John until the day before the hearing, refused to let him question the accuser about that information, and then allowed its lawyer to render objections to John’s case. The court’s conclusion was stinging: “It is ironic,” said the court “that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy.”

In other words, the university stacked the deck. It biased the proceedings against John, and in so doing violated his fundamental constitutional rights. Note that the court did not excuse these violations because it was ruling on a mere academic hearing. Bad processes hurt people, even when those bad processes don’t result in prison.

I’m singling out the UCSB case simply because it is so recent. It’s but one example among many. In fact, two weeks before the California court handed down its opinion, the Seventh Circuit Court of Appeals heard arguments in a case that Brooklyn College professor K. C. Johnson — perhaps the nation’s foremost expert on Title IX adjudications — called “unusually troubling, even in the Title IX realm.”

The guilty finding led to a loss of the accused student’s ROTC scholarship and Navy career, after a process in which the accuser neither appeared at the hearing to speak and answer questions, but didn’t even submit a statement to the hearing. (The evidence in the case was a Title IX investigator’s report and a statement written on the accuser’s behalf by a university counselor.) The complaint alleged that the accused student had no chance to present exculpatory witnesses, including a roommate who said that the alleged assault never occurred. As Judge [Amy Coney] Barrett noted, “It was a credibility contest in which you not only did not hear directly from [the accuser], you didn’t even read words that she had written.”

I wonder if that student is consoled that its “only” his Navy career at stake. The goal of any adjudication is justice, and centuries of experience have taught us that justice is elusive when due process is denied. We cannot have our culture believe that the way of the university is the way forward for our nation. The guiding principles should be clear. Respect women and hear their claims. But “believe women”? No, believe evidence, and give every accused a fair opportunity to defend his liberty, his education, and his career.