Evan Gerstmann argues in Campus Sexual Assault: Constitutional Rights and Fundamental Fairness (Cambridge University Press) that while American higher education certainly has long needed to combat the problem of student-to-student sexual assault, its current approaches are ill-considered.
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Evan GerstmannIsaac H. Gerstmann
Evan Gerstmann argues in Campus Sexual Assault: Constitutional Rights and Fundamental Fairness (Cambridge University Press) that while American higher education certainly has long needed to combat the problem of student-to-student sexual assault, its current approaches are ill-considered.
Unfortunately, says Gerstmann, a professor of political science at Loyola Marymount University, those approaches often make matters worse for victims, are unfair to the accused, and could make successful prosecution of serious perpetrators less likely.
“We can do better,” says Gerstmann, who practiced law for five years before he became a political scientist who specializes in interactions of law and politics. Among the shortcomings he sees is that many colleges, in an understandable rush to reduce the incidence of sexual assault, have formed tribunals marred by “severe deprivations of due process.”
Often, for example, they lack such common features of criminal-justice proceedings as the accused students’ rights to see the evidence against them, directly question the witnesses against them, or call witnesses on their own behalf. In seeking to enforce now-common “affirmative-consent codes,” many such tribunals end up unfairly defining sexual assault, he argues. The codes restrict students’ sexual autonomy “by limiting how they may express their consent,” he writes, and “do not reflect the way that most college students behave.”
Frequently, he says, the tribunals fare poorly in differentiating clumsy, immature, often drunken sexual advances and impositions from actual assaults. Effective cooperation with the local police is essential, he says, in part because colleges lack the resources to take on that task alone. But first the colleges must reasonably determine, in deliberations with due process, whether an illegal or perhaps simply unethical act has occurred, he says.
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That summary merely sketches Gerstmann’s fine-detailed parsing of the challenges of getting investigations right, as he dissects decisions in cases at numerous colleges. But he has no doubt, he says, that his analysis will provoke hostile responses from all over the political map, as will his assertions that something is wrong when an appellate court upholds a campus tribunal in spite of its “grave concerns” about the process; that many statistics about campus rape come from dubious studies; and that higher education’s response to a perceived “epidemic” or “crisis” of sexual assault recalls other panics in American life — over, for example, illegal immigration, “superpredators,” and terrorism within U.S. borders.
“I expect to take a fair amount of heat over this book, and that’s OK,” Gerstmann says. First, he explains, he wants only what advocates for victims of campus rape want: a reduction in the incidence of sexual assault, but through an approach he considers more measured and likely to succeed. Second, he has been in the firing line before, for his arguments that the historical and then-persisting denial of same-sex marriage and other rights of sexual minorities was a breach of due-process rights. He made that case in The Constitutional Class: Gays, Lesbians, and the Failure of Class-Based Equal Protection (University of Chicago Press, 1999) and developed it in Same-Sex Marriage and the Constitution (Cambridge, 2004). He says: “Now so many people are pro-same-sex marriage, but I was a real outlier on that when I first started writing about it.”
Critics of the status quo are often asked: What better solutions do you offer? Gerstmann says due process offers one better path, and so does “restorative justice.” That range of interventions, which few colleges use, seeks to resolve disputes, redress wrongs, and even promote healing as an alternative to merely assessing blame and imposing punishment. In the case of sexually unethical behavior on a campus, Gerstmann says, the approach can entail brutally honest discussions about the actions committed and the harm done.
He hastens to add, however, that “it can’t be clear enough that where someone has committed a crime, restorative justice is no substitute for criminal prosecution.” Restorative justice is “only suited to cases where the victim does not want the police involved, or where the situation doesn’t amount to a crime, where it’s more ambiguous,” he says. “There are plenty of situations like this.”