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Claire McCaskill Declares War on Due Process
MInding the Campus ^ | July 10, 2014 | KC Johnson

Posted on 07/10/2014 11:51:58 AM PDT by SAVEOURSOULS

Over the past several months, Claire McCaskill (D-Missouri) has emerged as the Senate’s most ferocious opponent of campus due process. One of the upper chamber’s unequivocal defenders of the Office for Civil Rights, McCaskill also attempted to browbeat the American Council of Education for representing its members, and convened several town hall sessions on campus sexual assault to which she didn’t invite defense attorneys or civil libertarians.

So it should come as little surprise that McCaskill’s report on campus sexual assault not only backs the OCR’s efforts, but also contains recommendations that go beyond even the OCR’s due process-unfriendly approach. Given McCaskill’s status as a former prosecutor, her disdain for basic fairness has to raise questions about how she handled cases in her previous career.

McCaskill’s 12-page report (with 100-plus pages of survey results) rests on the curious premise that also plagued the White House Task Force document—uncritically accepting that the colleges face an unprecedented wave of violent crime (one in five women will be sexually assaulted) while simultaneously not recommending any increased law enforcement presence on the nation’s campuses. Instead, McCaskill recommends increased training for campus security officials. She offers no explanation for this approach, instead making her point implicitly: it seems that because “many sexual assault survivors prefer to avoid reporting to police at all,” the senator isn’t interested in changing federal law to ensure that crimes are investigated by the people who are actually trained to investigate them. Instead, she wants an expensive (paid for, it seems, by colleges) training effort to produce security forces that would duplicate the efforts of local police.

The report’s most troubling conclusions address the campus disciplinary process. Incredibly, McCaskill claims that too many colleges have “biased or harmful sexual assault adjudication procedures”—biased, that is, against the accuser. How could she possibly reach such a conclusion?

No Jury of a Student’s Peers

According to the Missouri senator, too many schools (less than half of the total) allow students to participate in the disciplinary process. McCaskill raised two objections to such a process. First: “student participation can present privacy concerns for survivors who can be forced to divulge intimate and painful details of their experiences to peers that they live and study among.” Second: the policy creates “conflicts of interest, as students may know the survivor and/or the alleged perpetrator.”

These are odd objections. Any university disciplinary policy should have a manner of dealing with conflicts of interest, which after all can occur with faculty or administrator panelists just as easily as with student panelists. And McCaskill provides no substantiation for her assertion that “privacy concerns” would be any greater when an accusers are “forced to divulge intimate and painful details of their experiences” to a resident advisor or other administrator with whom “they live” or a professor from a department where they study.

Given the absurdity of McCaskill’s rationalizations for excluding student disciplinary panelists, what could be her actual motivation for this recommendation? A clue can be seen in the language her report uses. Discussing the status of a disciplinary panel—which occurs, keep in mind, before any adjudication—McCaskill describes the two parties: “the survivor” and the “alleged perpetrator.” But at the stage when the sexual assault is “alleged,” before any adjudication, how is there a “survivor”? Could it be that the Missouri senator, a former prosecutor, believes that all those who file allegations are automatically survivors? What happens in the event of a false allegation?

McCaskill’s recommendation, alas, appears designed to guarantee that these “survivors” receive vindication, one way or the other. Administrators and professors are subject to pro-conviction pressures that student disciplinary panelists can avoid. Administrators, who serve at the will of the school, could easily believe (or be guided to believe) that presuming guilt would serve the interests of their school, lest it receive an OCR investigation for finding too many students not culpable. Faculty panelists are drawn from a faculty disproportionately one-sided on gender-related questions. Assistant professors from humanities and some social sciences departments are particularly vulnerable: could a not-guilty vote be used against them (surreptitiously, of course) in a subsequent tenure vote?


McCaskill’s second procedure-related objection regards the need to train members of the disciplinary panels. “Institutions,” she writes, “are also failing to provide adequate training for the individuals who adjudicate sexual assault claims. This is particularly problematic because of pervasive and culturally ingrained misunderstandings of what constitutes sexual assault, such as the prevalence of acquaintance rape versus stranger rape, what constitutes consent, the type of conduct that constitutes rape, and how trauma can impact the survivor’s demeanor and memory.”

This is a remarkable, and troubling, passage. At a practical level, we’ve seen how this type of “training” works, from the few institutions where training material has leaked out. (To the best of my knowledge, no college or university has voluntarily publicized its sexual assault training materials.) At Stanford, however, panelists are told that an accused student who is “acting persuasive and logical” is a sign of guilt. At Duke, as the McLeod lawsuit revealed, the training items likewise seemed designed to make the panelists inclined to find guilt.

At a theoretical level, in the criminal process jurors in sexual assault cases receive no “training”—since doing so would likely be deemed as unfair to the accused. McCaskill provides no explanation as to why special training is necessary for sexual assault in the college disciplinary process when it’s not used in the criminal process. And the subjects on which McCaskill demands “training” all seem to make it more likely that accused students would be found guilty.

Due Process

Lest there be any doubt, McCaskill spends several paragraphs all but expressing contempt for the idea of fairness for accused students. As the ACE general counsel noted, McCaskill’s document “treats the rights of the accused as an afterthought, which colleges and universities clearly cannot do.”

In the real world, campus tribunals are wildly unfair to the accused, for reasons virtually anyone who follows the issue knows (most accused students can’t use lawyers; often they can’t cross-examine the accuser; almost always they have limited discovery rights; they can be branded a rapist on a preponderance-of-evidence threshold).

McCaskill fantastically dismisses this record; in her version of reality, and “contrary to these concerns, it appears that some institutions actually afford certain due process elements more frequently to alleged perpetrators than they do to survivors.” (Note that, again, her language implies that an accuser is automatically a “survivor.”) On what does she base this highly counterintuitive claim?

The senator cites three elements: that 15% of schools have resisted OCR’s reinterpretation of Title IX to retain a “clear and convincing” standard; that an insufficient number of schools utilize group punishment (“sanctions” against fraternities or athletic teams, apparently if an accused student is a member); and “82% of schools allow alleged perpetrators to challenge hearing members regarding impartiality or conflicts of interest, while only 78% provide the same right to survivors.” (Note that, for a third time, her language implies that an accuser is automatically a “survivor.”)

At what point will members of Congress start resisting the witch hunt?

TOPICS: Constitution/Conservatism; Government; News/Current Events

1 posted on 07/10/2014 11:51:58 AM PDT by SAVEOURSOULS
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Is there a part of the Bill of Rights they don’t want to erase??

2 posted on 07/10/2014 11:53:48 AM PDT by GeronL (Vote for Conservatives not for Republicans)
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The only reason McCaskill is Senator is because in 2004 lots of Missouri Republicans crossed over to the Democrat primary and voted for her in order to get rid of Bob Holden.

Until then nobody had heard of her.

3 posted on 07/10/2014 11:55:08 AM PDT by E. Pluribus Unum ("The more numerous the laws, the more corrupt the government." --Tacitus)
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To: All

Thank you, Todd Akin!


4 posted on 07/10/2014 12:03:31 PM PDT by MplsSteve
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To: E. Pluribus Unum

Claire McCaskill defeated Jim Talent in 2006, due to judicial activists who allowed polling places, in both Kansas City and St. Louis, to remain open hours after thy should have closed. As I recall, Kit Bond was absolutely furious and made swore that he would get election reform before the next election. We see how that turned out....

5 posted on 07/10/2014 1:44:16 PM PDT by LSAggie
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To: LSAggie
I remember that.

Claire has a lot in common with Ubama. Neither one of them have ever won an election in their entire lives. They both just clear the field of any opposition by manufacturing a "scandal."

6 posted on 07/10/2014 1:49:32 PM PDT by E. Pluribus Unum ("The more numerous the laws, the more corrupt the government." --Tacitus)
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To: GeronL
McCaskill has already helped to nullify one of the most important provisions of the Constitution. If and when honesty, competence, and a media not afraid of speaking the truth returns, the extent of her complicity will be understood. Obama, in the words of the author of the 14th Amendment Congressman John Bingham, speaking to the House in 1866, was not born “of parents not owing allegiance to any foreign sovereignty.” Those words express precisely what our framers, had we listed, tried to protect us from.

In February of 2008, McCaskill, then co-chair of Senator Obama’s presidential campaign committee, co-sponsored, along with Senator Obama, Senate Bill 2678, the ‘‘Children of Military Families Natural Born Citizen Act’’. While the bill could have no force, since Congress has no authority, short of amendment to interpret the Constitution, SB 2678 was to infer that Senator John McCain was not in violation of Article II Section 1 Clause 5, the Natural Born Citizen requirement for our presidents. SB 2678 did not pass out of the Senate Judiciary Committee.

Democrats had thoroughly demonstrated, in Congress and in two law suits, that John McCain was not eligible, even while most of us feel his military record entitled him. The Panama Canal Zone was not sovereign U.S. Territory until 1937. McCain's role in 2008 was to silence all eligibility questions to allow Obama to run, even when Obama told us slyly that he was naturalized by U.S.Code, based upon the 14th Amendment, in which Article II Section 1 is specifically not mentioned.

Obama said “I am a native-born citizen of the U.S.” Being native-born didn't make American Indians citizens. The 14th Amendment made Obama a citizen, as it made Wong Kim Ark, born in the U.S. to alien resident parents a citizen, but not natural born. Natural born citizens are not citizens made by man's law but by nature's law, as explained in dozens of Supreme Court cases, obscured in 2008 by John Podesta’s henchmen working for the Center for American Progress, and aided by a complicit media. Soros/Podesta’s people knew, and explicitly edited some twenty five Supreme Court Cases provided on the web site, the most patronized by the naïve citizenry. The edited cases cited Minor v. Happersett, which established precedent for the common-law definition. Justia’s CEO, Tim Stanley, admitted the corruption, but blamed it on a programming error, and blocked the public from exploring what else progressives may have corrupted to aid the misdirection project. Progress's Chief Information Officer, Karl Malamud, was part of the fraud, and participated in the editing of cases on Cornell Law's web site.

When S.2678 failed, Senator McCaskill hurriedly submitted Senate Resolution 511, clearly anticipating the failure of SB. 2678, solicited the devious cover letter in early March from Obama’s constitutional law professor Larry Tribe and the guileless Ted Olson. The letter is in the S. 511 record in the Senate Archive. It was written to confuse anyone who doesn't read carefully. McCaskill’s co-sponsor was Pat Leahy, Chair of the Judiciary Committee.

Remember, Democrats owned the Senate in 2008, and still wouldn't pass McCasskill/Obama’s S. 2678. A properly and carefully prepared amendment might have passed, but this was all politics to provide cover for Obama. Obama, who never claimed to be a natural born citizen, prefers to suppress the allegiance to our Constitution required of military officers, and has no interest in addressing a constraint thought about by our framers, but which we may no longer wish to retain - children of military citizens being born on sovereign U.S. territory. Obama honestly told us that his intention was to create a police force larger and better equipped than our military, one that would report to him and not be bound by the Constitution he feels “won't let me do what I feel we need to do.”

7 posted on 07/10/2014 2:26:37 PM PDT by Spaulding
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To: LSAggie

No, she beat Jim Talent because Jim Talent was never a very good statewide candidate. You are thinking of the Mel Carnahan/John Ashcroft race in 2000, when Ashcroft was beaten by a dead man.

That same year Talent lost the governor’s race to possibly the worst governor in the history of Missouri, Bob Holden.

Talent did manage to beat the Widder Carnahan in a special election in 2002 for the Senate seat Ashcroft lost. He then lost to McCaskill in 2006 by running one of worst campaigns in history. One of his spots attacked McCaskill for not paying property taxes when it turned out that her brother (I think) was supposed to pay the taxes on one of her properties where he was staying. Talent looked like a fool.

McCaskill lost a bid for governor to Republican Matt Blunt in 2004 after beating incumbent, cuckolded, gamma-male PeeWee Holden in the Democrat primary.

8 posted on 07/10/2014 2:37:06 PM PDT by old3030 (I lost some time once. It's always in the last place you look.)
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