The “claim to fame” of empiricism is that it forces us to let go of our bias, our preconceived notions that we usually chalk up to such nonsensical vagaries as “common sense,” and look at the harsh reality as demonstrated by numbers. Campus sexual assault and rape is such an inflammatory issue as to provide a compelling slate for empiricism. Unfortunately, one of the foremost proponents, Kansas Lawprof (who just received tenure) Corey Rayburn Yung, reveals that it just can’t be done.

In a recent post at Concurring Opinions, Yung castigated George Will for politicizing the issue. That view was challenged as being merely the opposite political view of Will, to which Yung responded:

I do think that Will and others are “downplaying” rape on college campuses, but that doesn’t mean I support any particular assessment regarding the magnitude of the problem. My point is that the authors are either assuming their conclusions or cherry-picking data among conflicting reports. That is downplaying regardless of the true level of rape on campuses.

His criticism of Will wasn’t unfounded, but his professed agnosticism toward “any particular assessment” while concluding that Will was “downplaying” rather than being inaccurate revealed that he took sides in the absence of reliable data and definitions as well. It’s dangerous business to criticize others for being blinded by politics while holding yourself out as a paragon of empirical purity.

Yung has now taken the next step of offering the mechanism by which campus accusations of rape and sexual assault, whatever they may be, should be adjudicated. His purpose in doing so appears to right a rather curious wrong:

In this opening paragraph, Yung pulls a dreaded “George Will” by loading his language (“railroaded”?), creating a strawman (“punishment of innocent men was the norm”) and offering no cites to support his issue (“case after case surfaces”). An ignominious start indeed.

Yung then cherry picks Yale and the curious case of Emma Sulkowicz, a Columbia student, whose accused “rapist” was found not responsible by the University, which apparently proves the University failed. He bolsters this with statistics taken from the Rape, Abuse & Incest National Network, “the nation’s largest anti-sexual assault organization,” which might not be the best source of unbiased evidence.

If an attempted murderer was left on campus with his or her intended victim, we would be horrified. If a student brutally assaulted another, we would want the university to take action to protect the victim. Even in the non-criminal cases of sexual harassment at universities, defendants are separated from victims without waiting for a civil suit to be completed in the plaintiff’s favor. As a matter of simple humanity, universities need to protect rape victims by having a mechanism to remove/punish rapists.

Aside from the appeal to emotion, “simple humanity,” of protecting “rape victims” by removing/punishing “rapists” in the absence of adjudication, the comparison to murder (and later, to “alleged murderers, brawlers, burglars, and other violent criminals”) ignores certain realities, that there is hard evidence, independent witnesses, proof, that a crime occurred.

While the nature of rape is different, in that it tends not to occur in front of witnesses, and doesn’t always have evidence to distinguish consensual sex from rape, in some measure due to the ever-changing definition of rape, this doesn’t make the analogy any more apt. It’s unconvincing to compare a murder, a dead body being hard to dispute, with an alleged rape, reported days or months later based on change of heart or based on the number of beers the participants shared.

Does this mean universities have designed effective and fair sexual assault tribunals? Absolutely not. I have been critical of the uneven protections and ad hoc processes often used. However, simply letting the criminal justice system resolve the matter, as many have proposed, is unrealistic and wrong.

The linked HuffPo article, by women’s rights advocate Tyler Kingkade, offered to show that the criminal justice system is apparently worse than the colleges toward prosecuting rape is perhaps the telltale of how fatuous a claim this is. The police won’t arrest and prosecutors won’t prosecute alleged rapists just because there is no evidence whatsoever! Don’t they know that if a woman says she was raped, she was raped? Don’t they know that whoever a woman accuses of rape is a rapist? A RAPIST! Clearly, this is not a system to be trusted.

In the comments to Yung’s post, Orin Kerr asks what the “’effective and fair sexual assault tribunal’ you advocate would look like? What burden of proof, evidentiary standards, counsel, judges, etc. would you have?” Yung provides his list:

Defendant can bring counsel, but no Gideon right to counsel

For anyone curious, as I am, about how a clash between race and gender would pan out in the halls of academia, this is the answer. While racial diversity is sought by providing need-based scholarships to the poor, it ends at the accusation of rape.

Fact finding is limited to student conduct policies in place (no ex post facto application)

The rejection of ex post facto is good, but defining adjudication based on student conduct policies, the efficacy of which is left to the whims of university folks, is absolutely nuts. They can define rape as unwanted staring in the Student Handbook.

No right to compel victim to testify (even though the victim almost always has to)

The current trend is that it’s too painful to force an accuser to testify, to be questioned by her rapist, even though this puts the conclusion first and is perhaps the most intellectually absurd idea around. But if you close your eyes tight enough, and scream “lalalala,” you can pretend this makes sense in some alternate universe. Not even the qualification, “though the victim almost always has to,” saves this,

Fact-finder should be a person with independent authority (Title IX coordinator might work); no student juries

I have no clue what this means. So no jury of an accused’s peers, but no qualifications to adjudicate?

Evidence rules should generally match those of arbitration proceedings

This is something of a trick for the unwary, as arbitration doesn’t use the rules of evidence.

Rape shield rules should apply

Rape shield rules were once controversial, as they deprive an accused of potentially relevant evidence in the name of political correctness. Ironically, this is the least controversial piece today, given how far the train has gone off the tracks.

Some form of determinant punishment guidelines should guide punishment

It’s unclear whether this means a rote sentence, without regard to mitigation and proportionality, or just a minimum/maximum punishment. Either way, it offers no guidance without knowing what determinant punishment is being proposed.

The ultimate factual question is whether the student code of conduct or honor code was violated

While the accused will be tainted in perpetuity as being a “rapist,” a crime of heinous magnitude, the basis will be its definition in a school’s honor code, such as failure to obtain written advance consent with a 3-day post-coital period of retraction.

There would be no issue if this was promoted as one newly-tenured lawprof’s politicized vision of how to address his presumed epidemic of rape and sexual assault on campus. The internet is littered with such visions, though they usually appear at Jezebel or Slate XX factor, where clearly biased advocates try to sell their wares to the choir.

But it’s not acceptable from a lawprof who wants to wear the clothing of an unbiased empiricist, while promoting such deeply-biased views. Yung is allowed his views as to what constitutes an “effective and fair sexual assault tribunal.” He’s just not allowed to claim to be the unpoliticized voice of empirical reason by trying to conceal his bias behind scholarly pretense. And lest my assessment be deemed uncharitable, as it was last time, this is about as charitable as I can muster.