Monday, February 24, 2020

Collective Amnesia and Public Policy: The Case of Title IX

David Super

     In evaluating policy proposals, one crucial question often is the seriousness and prevalence of the underlying problem.  Where existing policies have largely dealt with a problem, people naturally are reluctant to impose tougher measures and may even consider ratcheting down existing policies.  The awareness and memory of the severity of a problem among policymakers and voters therefore is crucial.

     This is a constant problem in anti-poverty policy.  Many upper-middle-class people wildly over­estimate the availability of jobs for very low-skilled people with tenuous child-care and transportation arrangements.  They similarly overestimate the competence and effectiveness of the agencies charged with administering anti-poverty programs.  They may assume something like the government agencies with which middle-class people interact:  sometimes annoying, but ultimately fairly reliable.  The Trump Administration and other opponents of anti-poverty programs have skillfully exploited this widespread ignorance of the realities low-income people face to advance policies denying aid to those who cannot prove regular employment. 

     This lack of awareness is a predictable result of a society sharply segregated by income and wealth:  most affluent people have little occasion to discuss these sorts of issues with low-income people.  Other policy ignorance is more deliberate:  we assume a problem away because we want to avoid the implications of dealing with it.  We accept that Bashir al-Assad, Abdel Fattah al-Sisi, andr Muhammad bin Salman are better than the alternatives because we do not want to risk higher gas prices or face our complicity in their crimes. 

     Another case in point is the Trump Administration’s imminent release of rules weakening Title IX protections.  Education Secretary Betsy DeVos has argued that current policies overreact to the extent of sexual violence.  Her supporters argue that criminal prosecution provides an adequate response.  This might sound plausible to many because we do not hear about, or forget, cases where accused sexual assailants readily manipulate the criminal justice system to avoid accountability. 

     Today’s events in particular illustrate our collective ambivalence and amnesia about sexual violence.  On the one hand, movie producer Harvey Weinstein was convicted on some counts after a trial featuring testimony of several celebrities.  On the other hand, Los Angeles is turning out en masse to pay tribute to the late basketball superstar Kobe Bryant.  Since his untimely death, he has been called a “hero”, a “role model”, and much more.  He received a tribute at the Super Bowl and had the NBA All-Star Game’s MVP award renamed for him..   

     All this ignores the seriousness of the charges against Bryant.  And rather than defend himself against those charges in court, Bryant hired lawyers who followed a well-established formula that so devastated the accuser’s life that she fled the state.  Yet despite receiving no judicial exoneration, and despite pursuing these heinous tactics, the accusations against Bryant are widely forgotten or treated as insubstantial.  Rare dissenters have been excoriated; Gayle King received death threats for merely asking about rape charges against Bryant.  Several media outlets that routinely publish me on a variety of issues wanted nothing to do with an earlier version of this essay. 

     Collectively, we will remember the Weinstein verdict as “proof that the system works” – particularly when one has well-known actresses to testify and even then only after decades of abuse – but will forget the far more typical Bryant case.  This selective amnesia plays directly into the Administration’s efforts to undermine Title IX because it obscures the criminal justice system’s woeful failure to effectively deter rape.  Remembering more clearly the Bryant case therefore is important to making sound policy choices.

     On June 30, 2003, a Colorado luxury hotel’s management directed a nineteen-year-old summer concierge to welcome Bryant.  She told sheriff’s investigators the next morning that Bryant choked her, bent her over a chair, pulled down her underwear, and raped her.  Forensic examination found injuries inconsistent with consensual sex.  Prosecutor Dana Easter said “It was a physically violent assault. It was a very degrading assault. It was clearly perpetrated by someone who thought he was entitled,” 

     Bryant reportedly first denied any sex and then said he believed it was consensual while admitting the woman never expressly agreed.  Her blood stained his shirt. 

     To prevent defendants from retraumatizing victims who report their crimes, Rape Shield Laws make evidence of an accuser’s prior sexual conduct inadmissible with two main exceptions.  First, if the defendant claims that an encounter was consensual, he may introduce his prior sexual experience with the accuser.  Second, if the defendant claims that he did not have sex with the accuser, he may introduce evidence that the accuser’s sexual encounter with someone else was the source of physical evidence. 

     Neither exception applied to Bryant’s case:  he had no prior sexual encounters with his accuser, and he was no longer denying that he had had sex with her.  Yet that did not save her:  Colorado’s version of the Rape Shield Law proved no match for Bryant’s lawyers. 

     One of Bryant’s lawyers made “almost pornographicassertions in a preliminary hearing about his accuser’s sexual history, violating a court order by repeatedly using her name in front of the reporters and curious townspeople in the courtroom.  This triggered a firestorm of tabloid harassment and countless death threats.  When she sought therapy, a tabloid offered a participant money to report on what she said.  Court personnel compounded the problem by repeatedly making confidential information public. 

     Bryant’s lawyers persuaded the trial judge to admit testimony on the accuser’s sexual history notwithstanding the Rape Shield Law.  Eventually, she concluded that the only way to escape was to ask the prosecutor to drop the charges and move out of state.  When I teach Evidence, I use the Bryant case to launch a discussion of how much the Rape Shield Law has actually accomplished. 

     Bryant subsequently settled his accuser’s civil lawsuit, avoiding the risk of a civil jury confirming her accusations.    

     The immediate result was a drop in survivors’ willingness to report sexual assaults; rape crisis counselors said that they feared the same kind of public humiliation. 

     The issue is not just that Bryant has passed away.  When O.J. Simpson dies, we surely will not see a similar outpouring of grief despite his Hall of Fame career and multiple records.  Claus von Bulow’s obituary was dominated by the death of his wife.   Even though Simpson and von Bulow were acquitted – which Bryant was not – widespread belief of their guilt has forever tarnished their names. 

     The difference likely is the nature of their alleged offenses, with our society continuing to trivialize sexual violence and remaining all-too-ready to accept any attempts to explain it away, no matter how implausible. 

     That is why Title IX is crucial.  Although it does not displace criminal prosecution, it learns from countless cases like Bryant’s that other means are needed to allow women to attend school without the threat of sexual violence.  The Administration’s proposal would disable campus disciplinary proceedings, permitting many of the same tactics that allowed Bryant to evade responsibility.

     Just as Bryant’s avoidance of a criminal conviction entitled him to remain at liberty and to continue to play basketball, nobody suggests that those found responsible for sexual assaults in campus disciplinary proceedings should suffer criminal sanctions.  But we can never achieve equal educational opportunity for women if offenders are free to retraumatize their victims continually on campus until their victims, like Bryant’s accuser, eventually disrupt their lives and flee. 

     Undoubtedly having these accusations resurface now is hurtful to Bryant’s widow and surviving children; this is regrettable.  Those heaping lofty praise upon Bryant, however, should try to imagine how it must sound to the woman whose life his defense team mauled. 

     Those celebrating Bryant also should consider the message they send to other survivors of sexual assault:  even if they bravely come forward, they may be so thoroughly discounted and pilloried that not only is their assailant not convicted but his name remains unsullied.  Further, those acclaiming Bryant should consider how this will impact men who may be tempted to force themselves on unwilling women.  We should not send them the message that violent abuses of their position will soon be forgiven. 

     Finally, forcing ourselves to remember how Bryant was able to prevent the criminal justice system from even holding a trial on credible accusations of sexual assault shows the importance of Title IX in protecting women from sexual violence.  


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