Month: June 2016

The recently released report detailing Baylor University’s significant missteps in handling sexual assault cases is an impressive document. It argues persuasively that university administrators ignored the complaints of female students in order to protect Baylor’s football team. 

Baylor’s Board of Regents has fired Head Football Coach Art Briles and demoted President Ken Starr. They have implemented a plan to bring the university into full compliance with Title IX—the federal statutes that requires colleges to police sexual harassment and assault—and have apologized to the Baylor community. 

Note that the report is the Regents’ summary of the results of an independent investigation conducted by law firm Pepper Hamilton. The lawyers did not prepare their own written report, which lead my colleague Anthony Fisher to cry foul: 

Keeping secret the highly relevant names and deeds of those responsible for this situation is bad enough. The fact that this investigation hasn’t even yielded a written report works very much in favor of an institution which would like the public to believe that it has found religion (so to speak) and will never stray from the path again. 

There’s a whole lot of “transparency and accountability” not being pursued here. 

Baylor’s myriad failings are obvious, and it’s not at all clear things will get noticeably better for victims of sexual assault at the university, although Title IX is infamous for encouraging universities to over-correct their rape adjudication procedures. 

Slate‘s Nora Caplan-Bricker thinks the Baylor situation makes a great argument for getting universities even more involved in policing rape. In a provocative piece titled “The Crisis at Baylor Proves Colleges Should Handle Rape Cases, Not Leave Them to the Courts,” she writes: 

The courts eventually fulfilled their role—but if Baylor had listened to the first woman who spoke up, it may have been able to prevent a string of horrendous crimes. 

This is one key reason why schools must be involved in adjudicating sex crimes. It can take years for a criminal case to wind its way through the courts. Schools can move faster to investigate serious charges and remove perpetrators who pose a demonstrated harm to other students. The criminal justice system is also poorly equipped to handle cases of rape and sexual assault: Because so many rapes have no third-party witness, its often difficult to provide evidence “beyond a reasonable doubt.” An estimated three in every 100 rapes result in punishment through the criminal system, and many survivors of sexual violence decide they will face less trauma staying silent than seeking justice in court. Victims can receive a fairer hearing under the “preponderance of evidence” standard that schools employ—though it’s important to note, as legal experts have argued, that this lower evidentiary standard must be paired with careful investigation and legal representation in order to preserve the rights of both accuser and accused. 

As slow and awful as the criminal justice system is—and there’s specific evidence the Waco police screwed up here, too—there’s just no reason to expect poorly-trained university administrators to handle these things better, and lots of reasons to expect them to behave even worse. Baylor is an example of this very phenomenon: the school evidently cared more about its football team than about justice for victims. While it’s possible Baylor can be reformed, why on earth would we hold up this model—the administrative investigation model—as superior to courts? 

Anti-rape activists come across as impatient about the pace of justice, and it’s easy to see why. The way the criminal justice system treats rape victims has improved dramatically over time, but it’s still far from perfect. Yes, it’s a difficult allegation to prove. Yes, it takes a lot of time. But shouldn’t advocates work to improve that system—the one designed to administer justice to violent criminals—rather than investing time and effort in a system doomed to failure? 

The more the activists—including those in the federal Office for Civil Rights, which ensures Title IX compliance—get their way, the more one-sided these campus rape investigations become. Note that this is by design: these people want it to be easier for colleges to punish accused students. They favor reducing the burden of proof, vesting investigatory powers in a sole (and often biased) administrator, and violating the rules of evidence precisely because these things are an impediment to their preferred outcome. 

But this strategy has consequences of its own, and we are seeing them unfold before our very eyes. Accused students who were disciplined under standards of relaxed fairness are now suing the institutions that deprived them of due process, and they are winning. 

This puts universities in a difficult position. On one hand, the federal government has threatened them with loss of funding for failing to comply with its strained interpretation of Title IX. On the other hand, lawsuits brought by wrongfully expelled students could cost the institutions a lot of money. But then again, lawsuits brought by students who say their Title IX right to a sexual-harassment-free environment was violated could also cost a lot of money. Still, complying with Title IX is itself quite costly: universities have to hire scores of coordinators and investigators that grow the administration and drain financial resources. For many colleges, sexual assault is a lose/lose/lose/lose issue. 

Ad it’s easy to see why: universities are not neutral institutions. They are not impartial. Their incentive is to protect their reputations, not merit out justice to trauma survivors. Trying to change the incentives has caused a number of other disasters, as we have seen. 

It’s possible to believe that universities should do more to accommodate students involved in sexual assault disputes—provide them different housing options, for instance—without accepting the wholesale replacement of the criminal justice system with a frequently inept and unfair jury-by-educrat procedure. University-led adjudication might make life easier for some rape victims in the short term, but the public should want these accusations carefully vetted by trained professionals in the courts—not because the women are lying, but because we want charges against actual rapists to stick. It’s not enough to shuffle them around from campus to campus. 

This is one of those cases where the easy thing isn’t the right thing. The long-term public interest is better served by investing actual cops and courts with the power to police rape. If reforms are needed, those reforms should be targeted at the institution that can do the most good, and that institution isn’t higher education. 

A new study published in the current issue of the journal Archives of Sexual Behavior finds that Americans accept and engage in same-sex experiences more than ever. Using survey data collected since 1972 by the General Social Survey involving more than 33,000 participants, the researchers report that “same-sex sexual experience has doubled, and acceptance of same-sex sexual experience has quadrupled.” From the study’s press release: 

The percentage of men who have had sex with at least one man increased from 4.5 percent to 8.2 percent; the percentage of women who have had sex with at least one woman increased from 3.6 percent to 8.7 percent. The percentage of adults who have had both male and female partners (bisexual behavior) increased from 3.1 percent to 7.7 percent. Among 18 to 29 year olds in the 2010s (Millennials), 7.5 percent of men have had a gay sexual experience, and 12.2 percent of women have had a lesbian sexual experience. The increases in same-sex experiences were largest among whites and in the South and Midwest.

Since more Americans are evidently engaging in same-sex sexuality, it is not too surprising that acceptance of it has substantially increased:

Those who believed that “sexual relations between two adults of the same sex” was “not wrong at all” hardly changed between 1973 and 1990 (from 11 percent to 13 percent). Acceptance then steadily rose, reaching a near majority in 2014 at 49 percent. Among 18 to 29 year olds, acceptance rose from 15 percent in 1990 to 63 percent (a clear majority) in 2014.

Based on their findings, the researchers conclude that the “cultural change of the last few decades extends beyond simple tolerance of gay, lesbian, and bisexual individuals and their civil rights to include acceptance of same-sex sexuality and the freedom to engage in same-sex sexuality–or at least the freedom to report one has done so on a survey. Either way, Americans have experienced a fundamental shift toward acceptance of same-sex sexual behavior and a greater willingness to engage in it.”

Matt Kibbe, a longtime grassroots activist in the small government field as chieftain of FreedomWorks from 2004-15 and more recently a Rand Paul supporter via the SuperPAC Concerned American Voters, will be launching a new SuperPAC to promote the Libertarian Party candidacy of Gary Johnson and William Weld, to be called “AlternativePAC.”

“I have been talking to donors for several weeks as the reality of a Trump vs. Clinton ticket really sunk in. There is real interest in the Libertarian ticket, and Gary Johnson has an historic opportunity,” Kibbe said in an exclusive email this morning. 

“So I am launching a new SuperPAC to help raise awareness, drive messages, and change the conversation on social media. I think I can raise significant funds for this,” he wrote. In a later phone interview, he was not able to name specific donors who might give big money to the PAC. 

“The potential is bigger, I think, than just a ‘libertarian moment,'” Kibbe wrote in the email. “Done well, we can trigger a political realignment that’s been brewing for a long time. We will offer an attractive alternate to the two flavors of authoritarianism, cronyism, and all-war-all-the-time foreign policies of the other two candidates. For the first time, millions of voters will Google the word ‘libertarian’ in their quest to find a better political choice.”

While Kibbe did not this morning lay out his specific tactics, he wrote that “the power of the two-party duopoly is waning, and insurgent candidates with different ideas now have a seat at the table. Our PAC will use data, technology, narrative and cutting edge social media to target disaffected constitutional conservatives, independents, and Bernie progressives looking for something different, something hopeful, with a message of personal liberty, economic opportunity, and justice for all.”

On abortion, though Johnson is verbally pro-choice, his record is more nuanced and might not be a total deal killer to social conservatives. Johnson signed a partial birth abortion ban as governor of New Mexico and said in a May 2011 Republican Party presidential debate in South Carolina that “I’ve always favored parental notification, I’ve always favored counseling and I’ve always favored the notion that public funds should not be used for abortion.”

Even rock-ribbed social conservative Republicans, Kibbe anticipates, can look at the Libertarians and understand the difference between “personal opinions and the role of the federal government.”

Kibbe said in our phone interview that he’s not just reaching to the right. There is also a growing opportunity with “Bernie Sanders supporters upset with their likely nominee Hillary Clinton, who is essentially a neocon crony capitalist.”  

Similarly, Kibbe said in our interview, he hopes Republicans can respect the “only ticket that has Republican governors who have actually governed, balanced budgers, reined in regulatory abuses in very blue states” for years, which he says have traditionally been seen as “key to political success. Even the Bill Kristols of the world should ultimately have to say, of these three choices” Johnson/Weld is the best.

Given Johnson’s framing of himself most recently as a “skeptic” about intervention, not a non-interventionist, and willingness to condemn the Iran nuclear deal, Kibbe feels that the Ted Cruz end of disenchanted Republicans might be able to get over even their usual discomfort with Libertarian foreign policy for a candidate who Kibbe thinks is unique in respect for the Constitution.

Does Kibbe think things like “dancing stripping L.P. national chair candidate” James Weeks II will just make too much big money run from the brand? “I don’t think it matters that much,” Kibbe says. “I will be at the Democratic and Republican conventions as well, and I guarantee you there will be weird, exotic people there as well.”

Concerned American Voters will continue as a Rand Paul-oriented PAC focused on his Senate race. 

Chalk up another win for the third-party doctrine. The 4th U.S. Court of Appeals (in Virginia) has ruled in a 12-3 vote that cellphone users do not have an expectation of privacy with their location data and that police can get that information from phone companies without a warrant.

The majority ruling invoked the third-party doctrine, which has typically been the case in these rulings. In Supreme Court cases from the 1970s, the court ruled that a person has no expectation of privacy for records or information that he or she voluntarily turns over to third parties. Back in the day, these cases were referring to things like very simple phone call records logged by telecoms or bank deposit slips. The amount of information that is available about us through third-party records has dramatically increased, but the precedent has not yet be reconsidered by the top court.

This ruling may end up preserving the status quo. There have been several cases challenging the idea that phone location data should count as a third-party record, but so far courts have been upholding the precedent (eventually in this case, since a smaller panel initially ruled otherwise). Typically, the Supreme Court will take on a case like this when there are split rulings between federal courts. That’s not the situation at the moment. However, in United States v. Jones, a case from 2012 where the Supreme Court ruled that law enforcement must get a warrant to place a GPS tracker on a vehicle, Justice Sonia Sotomayor said in a concurrent opinion that it may be time for the Supreme Court to reconsider or re-evaluate when the third-party doctrine should apply in this new digital age.

In the dissenting opinion in this case, which involved authorities collecting more than 200 days of data and close to 30,000 locations, Judge James Wynn questioned whether all this information was actually “voluntarily conveyed” to third parties. He points out that previous third-party doctrine rulings were based on the idea that a person, for example called a phone number (thus giving the phone company the information about who he wanted to talk to) or deposited money in a bank (thus voluntarily giving the bank information about the transaction). By contrast, we now give out information about ourselves just by having the cellphone on us, without doing anything at all. From Wynn’s dissent:

“[T]here is no reason to think that a cell phone user is aware of his CSLI [cell-site location information], or that he is conveying it. He does not write it down on a piece of paper, like the dollar amount on a deposit slip, or enter it into a device, as he does a phone number before placing a call. Nor does CSLI subsequently appear on a cell phone customer’s statement. …

In sum, because a cell phone customer neither possesses knowledge of his CSLI nor acts to disclose it, I agree with the Third Circuit that he “has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.”

He warns:

“What this elucidates is the extraordinary breadth of the majority’s decision today. It is not bounded by the relative precision of location data, by the frequency with which it is collected, or by the statutory safeguards Congress has thought it prudent to enact. The majority’s holding, under the guise of humble service to Supreme Court precedent, markedly advances the frontlines of the third-party doctrine. The Fourth Amendment, necessarily, is in retreat.”

Read the full ruling here.