Brett Sokolow has been a model of inconsistency in the campus “rape wars.” As president of the National Center for Higher Education Risk Management (NCHERM), he has carved out a reputation as a foe of due process, but he surprised almost everyone this past spring by suggesting that he had knowledge of between eight and thirteen cases in which a male student was brought up on sexual assault claims on the basis of weak or non-existent evidence. In “a lot of these cases,” a NCHERM document noted, “the campus is holding the male accountable in spite of the evidence—or lack thereof—because they think they are supposed to, and that doing so is what OCR wants.”
At the same time, Sokolow has proved almost wholly unconcerned with the relationship between these unjust outcomes and procedures that tilt heavily in the favor of the accuser. Even as he recognized a surge in dubious convictions, he praised the OCR’s due process-unfriendly “Dear Colleague” letter. And last week, he curiously attacked FIRE’s efforts to achieve procedural fairness in campus sexual assault cases. Sokolow charged that FIRE’s criticism of OCR’s mandate that colleges use a preponderance-of-evidence in sexual assault cases reflected a “one-sided role in the gender wars.” Why? Because using anything other than a 50.01 percent level of certainty “only [emphasis added] protects those who would sexually assault others.”
Tell that to Caleb Warner, the former University of North Dakota student. He was found culpable for sexual assault under a preponderance threshold—even as his accuser was charged by police with filing a false report. It’s hard to imagine UND would have falsely branded him a rapist if it had used a clear-and-convincing threshold. It’s also hard to imagine that someone who has conceded that students are being improperly found culpable, as Sokolow has, could similarly suggest that colleges having a threshold with a 75% certainty of guilt “only” protects rapists.