"De Minimus Non Curat Lex, Bro": Scott Greenfield On Campus Rape Tribunals

A great piece from Scott Greenfield on the subject of rape court grand inquisitors:

In a twit, K.C. Johnson pulled out a bit from lawprof Paul Gowder’s comment to Tamara Lave’s post at PrawfsBlawg that looks, well, just horribly bad.

Honestly, I’m not even sure why we need an adversary process at all. In light of the fact that the fundamental purpose of such process is to exclude individuals who prey on these closed communities, it seems reasonable as a first-pass to me to have an inquisitorial process in which accusations are investigated by neutral trained professional staff, and then action is taken based on an overall conclusion as to the impact that that student’s presence would have on the learning environment.

Posted by: Paul Gowder | Sep 3, 2015 12:49:05 PM

The notion of an “inquisitor” has a bad rap, harkening back to the Spanish Inquisition, though in other countries, the inquisitorial system is the norm and, if done properly, isn’t such a terrible thing. By “done properly,” I mean that the inquisitor is truly a “neutral trained” person.

Gowder’s idea sounds horrible for two reasons, the first being that he contorts the purpose by saying “[I]n light of the fact that the fundamental purpose of such process is to exclude individuals who prey on these closed communities.” That’s one of those “begging the question” assertions, since no one knows whether the accused “preys” on anyone until after it has been determined that a wrong has occurred and the accused is the person who committed the wrong.

But worse, Gowder conflates the harm envisioned by our imaginings of dangerous rapists with the reality of what colleges call sexual assault. Assuming Gowder’s right, then most of the accused shouldn’t be subject to inquisition because their conduct has nothing to do with preying on anyone.  Claims of consensual sex with, say, post-hoc regret, or a beer and a claim of intoxication, don’t fit his “preying” fact, so nothing to see here, everybody go home.

The other part of his inquisitorial notion is that, as a “first pass,” with the next pass inclusive of appropriate due process protections, it should vet the bad claims out if the inquisitor was, indeed, neutral and trained. The problem is that they are trained, but trained to condemn, rationalize common excuses for evidentiary lapses, see rape and sexual assault in every contact, and believe the accuser no matter what. That ain’t exactly neutral.

No, it's not. The parallel manufacture of kangaroo courts for rape cases on campus is a disaster for due process and the men who suffer under such broad definitions. As Greenfield says, "You’re a survivor of an attempt to hold your hand? That’s what it’s come to, what these researchers intend to include to prove their desired outcomes?"