Apart from Claire McCaskill, no senator has more aggressively advocated weakening due process protections for students accused of sexual assault than New York senator Kirsten Gillibrand. She continued her anti-due process crusade in two high-profile moves this week.
First, Gillibrand invited Columbia student Emma Sulkowicz as her special guest for the State of the Union address. Sulkowicz has attracted international media attention for her “performance art” project of carrying a mattress around campus to protest what she considers Columbia’s insufficient response to a student she claims sexually assaulted her. No evidence exists that the student did, in fact, sexually assault her: even under Columbia’s extraordinarily imbalanced sexual assault policy, which tilts nearly all procedures in the advantage of the accusing student, the disciplinary panel didn’t find Sulkowicz’s allegation credible. Why Gillibrand came to believe Sulkowicz remains unclear.
It’s also unclear what message Gillibrand intended to send in selecting Sulkowicz, whose approach to criminal justice issues appears to be precisely what members of Congress should not encourage. Sulkowicz found the time to speak about her experiences with MTV, the Guardian, a local TV station, and several other media sources—but she wasn’t able to spare the time to follow through with the police about her complaint. (Or at least so she implied—the student she accused has suggested that actually the police looked into the matter and elected not to continue with the investigation, something that Sulkowicz never had previously admitted). It would seem that a senator would want to encourage actual crime victims to speak with police instead of the media, rather than the reverse. A cynic might suggest that the New York senator, like Sulkowicz, is more interested in public relations than in securing justice.
Even more troubling, however, was a Huffington Post essay penned by Gillibrand to accompany her invitation. The New York senator explained that she reached out to Sulkowicz to show solidarity with a student who “carries her mattress everywhere she goes to symbolize the burden she carries every single day as long as her rapist is still on campus.” Note the senator’s remarkable word choice. Gillibrand didn’t say “as long as her alleged rapist is still on campus.” Or “as long as the person she says raped her is still on campus.” No: Gillibrand, a sitting U.S. senator, has described a Columbia student as a “rapist”—that is, someone guilty of a criminal act—based solely on an allegation from a single person. And not merely a generic type of allegation, but one that even Columbia didn’t deem credible and the police did not pursue. As FIRE’s Ari Cohn has pointed out, with this statement Gillibrand laid “bare her disregard for rights of the accused.” For the senator, “allegations of rape = guilty of rape.”
Imagine the reaction of the Times editorial page if a New York senator on virtually any other criminal justice issue described as guilty of a criminal act a resident of the state who (a) hadn’t even been criminally charged and (b) had been deemed non-culpable of any criminal activity by an internal inquiry. Doubtless we’d encounter a (not inappropriate) history lesson on the importance of due process and the presumption of innocence to the American project, and a denunciation of the senator as ill-informed at best and a demagogue at worst. Yet on this matter, the Times (both in the editorial and on the news side) has ignored Gillibrand’s comments.
I suppose that, at the least, Gillibrand deserves praise for her candor. But the idea that someone making laws for all of us could actually believe that a person can be guilty solely on the basis of an accusation is a chilling thought.