Richard Pérez-Peña, an unusually shaky New York Times reporter who covers
campus sexual misconduct cases and gets many of them wrong, has been corrected
by his bosses, though the Times
didn't announce it as a correction and managed to introduce a new error while altering the inaccurate wording of the March 19 story.
At issue is a controversial (though not at the Times) "Dear Colleague" letter sent to
colleges nearly two years ago by the Department of Education's Office of Civil
Rights. The letter recommended a major change in sexual misconduct hearings on
campus: instead of "clear and convincing evidence," colleges should invoke a
"preponderance of evidence" standard in judging guilt--in other words, 50.1
percent certainty of guilt is good enough to convict.
Yet Pérez-Peña's recent article said "The letter did not
markedly change interpretation of the
law; instead, it reminded colleges of obligations that many of them had
ignored, and signaled that there was a new seriousness in Washington about
enforcing them." I wrote about this misinterpretation here.
The NewsDiffs site, which monitors alterations in news
articles, noted
that the Times drastically changed
the faulty sentence to this: "The letter changed interpretation of parts of the
law; it reminded colleges of obligations that many of them had ignored, and
signaled that there was a new seriousness in Washington about enforcing them."
Of course, the change renders the sentence all but
senseless: how could the Office of Civil Rights have "reminded" colleges of
"obligations" they had "ignored," when these "obligations" did not exist before
the 2011 letter altered 39 years or legal interpretation?
At least even Pérez-Peña now has conceded that the "Dear
Colleague" letter did, in fact, change interpretation of the law. The article
doesn't, of course, mention how it changed interpretation: by demanding that
colleges employ the minimum possible burden of proof--preponderance of
evidence--in sexual assault/harassment cases and only in such cases; and by
ordering colleges to introduce a right for the accuser to appeal--again, only in
sexual assault/harassment cases--if a judicial panel found an accused student
not guilty. That said, the reporter's concession that the "Dear Colleague"
letter changed the law makes it even harder to understand why his article
failed to include reaction from a defense attorney or a civil libertarian.
In the event, the originally erroneous description of the
OCR's actions raises questions about the competence of the Times in covering college sexual assault cases. Assuming that his
original wording wasn't an instance of willful duplicity, it would appear that
Pérez-Peña has just discovered that the "Dear Colleague" letter changed
interpretation of the law--even though he's been writing about the OCR's highly
controversial role in campus allegations of sexual assault for more than a
year.
If the Times
got the "Dear Colleague" letter wrong, did its most recent article miss other
obvious items as well? The article focuses on events at four schools--Amherst,
Yale, UNC, and Occidental. In the portrayal, courageous, even plucky, "victims"
(the word is used twice, along with the phrase "assault survivor," even though
the article presents no evidence that any of the people discussed by Pérez-Peña
ever filed a criminal report, much less saw their case adjudicated in court
with a guilty verdict for the accused) or their allies have battled sometimes
indifferent administrators, merely seeking respect and fairness. In this
effort, they have imaginatively reached out for support to the federal
government, which has idealistically responded with the "Dear Colleague" letter
and the "reminder" of "obligations" referenced in the altered sentence from
Pérez-Peña's original article.
Yet in at least three of the article's four cases,
Pérez-Peña's "activists" have sought nothing resembling fundamental fairness.
Instead, they have championed procedural changes to decimate the rights of the
accused--all without any mention in the Times.
Take, for instance, events at Amherst. Pérez-Peña first explored
events on the Massachusetts campus in November, describing a process that
"began with a first-person account of an elite college's callous treatment of a
rape victim." (As with his recent article, neither Pérez-Peña nor his editors
seemed to have any problems with using the word "victim," rather than alleged
victim or accuser, to describe an accuser who never filed criminal charges.) In
a passage that could have been written by an Amherst PR staffer, Pérez-Peña
then revealed that "it may be that no college leader in the country was as well
prepared to face this controversy than [president] Biddy Martin . . . [who] has
written extensively on gender and sexuality, and . . . has a history of
tackling -- though not always successfully -- thorny disputes." In fact, she had
already "started overhauling the way that Amherst handled sexual assaults."
The Amherst article also quoted Dana Bolger, described in
November 2012 by Pérez-Peña as "a student activist who had criticized Dr.
Martin for not moving fast enough to address sexual assault in her first year
at Amherst. Pérez-Peña returned to Bolger--only now described not merely as a
student activist, but as "one of the leading activists at Amherst"--in his most
recent opus.
Though he gushed over her status as an activist,
Pérez-Peña couldn't find space to describe what sorts of things Bolger has
actually demanded in her activism. He needn't have looked too far: in a "Room
for Debate" item the Times published
a few days ago, Bolger proclaimed that "the criminal justice process," with its
excessively lengthy pre-trial proceedings, "revictimizes rape survivors," in
part because "the standard of proof is impossibly high." Bo contrast, "the
college disciplinary system offers survivors a shorter process and quicker
remedy," and accused students can be judged "based on a preponderance of
evidence standard."
Imagine the Times--in
a straight news article, no less--soothingly presenting an "activist" who backed
military tribunals for suspected terrorists on the grounds that there's a need
for "a shorter process and quicker remedy"; or because, in the criminal justice
system, "the standard of proof is impossibly high." But when the subject is a
figure whose goal is to make campus convictions easier, Pérez-Peña didn't even
see fit to mention Bolger's extraordinary attack on a basic principle of
American due process.
Consider as well Pérez-Peña's portrayal of events at UNC.
For his article, the reporter quoted from two of the students who filed a Title
IX complaint against the university on grounds that UNC was violating their
right to an education free from sexual harassment. While he detailed their
inspiration from the protests at Amherst, he didn't mention the UNC procedure
that the duo deemed
unfair.
At UNC, even before the implementation of the lowered
threshold associated with the "Dear Colleague" mandate, a student accused of
sexual assault couldn't be represented by counsel (or even "a person who has
passed a state bar examination") in the hearing. And the hearing panel had the
right to restrict exculpatory evidence only to material that "does not
otherwise infringe the rights of other students." This system, according to
Pérez-Peña's "activists," was so unfairly tilted against the accuser that it
required the filing of a federal complaint.
It's possible, of course, that actual victims of sexual
assault at UNC or Amherst or Yale are mistreated. Yet Pérez-Peña seems
unwilling or unable to present the debate fairly, and instead has consistently
concealed (perhaps by coincidental omission) any mention of the extreme viewpoints
on due process held by his celebrated "activists." How could any reader of the Times know that the subjects of his
reporting actually harbor profound concerns about a legal standard in which the
accused must be found guilty beyond a reasonable doubt, or believe that a
procedure in which the accused student can't be represented by an attorney is
too lenient on the accused student?
The Times, of
course, has a troubled history of slanted coverage when it comes to allegations
of sexual assault on campus. The paper's handling of the Duke lacrosse case was
so bad that it yielded an eventual apology from the sports page editor. Yet the
Times' botching of the lacrosse case
appears to have had no impact on how it treats the more general issue. In this
respect, Pérez-Peña is simply continuing the standard established by Duff
Wilson regarding Duke--ignoring procedural concerns that detract from the
preferred narrative, and framing the remaining coverage around a presumption
that an accuser's story must be true.


Comments (1)
KC,
I'm certainly glad college is far behind me
Posted by corwin | March 22, 2013 1:53 PM
Posted on March 22, 2013 13:53