Debate: Courts, not Campuses, Should Decide Sexual Assault Cases

Jed Rubenfeld and Jeannie Suk (for) and Michelle Anderson and Stephen Schulhofer (against) participated in an interesting and extensive debate on this question on September 16; video here. One of the most notable aspects of the discussion was the systematic doubt about the capacity of courts to be fair. Professor Suk noted that campus disciplinary proceedings had a disproportionate impact on the poor and minorities; Dean Anderson responded, to oversimplify, that Ferguson and other incidents make clear that the criminal justice system is worse. All sides agreed that there are excesses in campus discipline which are appropriately being weeded out in courts. Again, to oversimplify, Professor Schulhofer argued nevertheless that campus discipline was necessary for fairness to the accused; given draconian sexual assault sentences, the power of prosecutors, the pressure of sweet pleas, and the unreliability of juries, some form of accountability other than prosecution was necessary so that the lives of minor offenders (or alleged offenders) were not ruined. Taken together, I think most or all parties might agree that the criminal justice system has often been disrespectful of victims, dismissive of sexual assault claims, and also sometimes arbitrary and brutal to those charged with or convicted of sex offenses. If this is so, one wonders what makes the character or ability of professors and administrators so much higher that better results are likely in the academy.