Process, Evidence, Closure

There’s an interesting, complicated discussion of sexual assaults at Swarthmore in this week’s student paper, stemming partly from the case of a student last semester who was accused of having committed assaults and has not returned to campus this semester.

One of the consistent things that many students concerned with the issue say they want is a more open campus dialogue about the general issue of sexual assault but also some kind of resolution or closure on this specific case. As a contribution to dialogue, I want to point to one specific issue at the heart of much of the expressed dissatisfaction.

The students interviewed in the article seem generally satisfied with the counseling and support services provided by the college to victims of assault, and with the degree to which these services lay out some of the options and choices that victims have about how to deal with what’s been done to them. The issue for some is with what the college does in judicial or punitive terms.

In this case, it seems that the victims did not want to bring the accused into the judicial system outside of the college. As the article points out, there are a lot of reasons why they might not want to. One would be the difficulty of having to narrate and thus relive the incident itself in an institutional environment that is anything but consoling or supportive, where there is an expressly adversarial dimension to the way that their story gets authenticated as legal truth. The lawyer for the accused tries to find a way to discredit the accuser’s narrative, and the system itself by its nature is supposed to be scrupulously neutral about the truth of the narration until a jury has found it to be true beyond a reasonable doubt.

If we can step outside the usual terms of the acrimony about “political correctness” and so on, into the deeper waters of how we think about narration, memory and experience, I think just about anybody, of any political leaning, could acknowledge that stories and memories have immense human power, and that the circumstances under which we tell our stories transform us as individuals, and make our lives either deeply fulfilled or despoiled. A story I tell in an intimate moment that connects (and exposes) me to another person is very different from a story I am required by law to tell in front of an indifferent audience, even if both stories are exactly the same.

So I understand the reluctance to enter into the judicial system, or even a quasi-judicial campus system for this reason and others, including potentially a sympathy for the life and future of the accused. A victim who knew her attacker could well wish that her attacker be compelled to some kind of responsibility or understanding without wanting him to spend years of his life in jail.

But that’s the problem: we don’t have a middle ground in which we can compel an individual to do some things without having to go through a judicial process, nor should we. If we understand why it is emotionally traumatic to have to testify in front of an indifferent public institution, then we should also understand why compelling people to enter into therapy, confess their crimes, sit in workshops, or be marked forever in civic records as a transgressor against the community is serious business. You can’t say “I understand why you don’t want to testify in front of a court” and then say, “It’s only a workshop, it’s only therapy, it’s only a notation on transcript: it’s not a big deal. It’s not jail“. It cuts both ways: it is a big deal. For the same reason that the trauma of having to narrate private experience in public is a big deal: because all of those things forge a compulsory relation between private selfhood and a public transcript of experience. It is something to which someone is subjected.

If those consequences are a big deal, then there’s got to be a due process for arriving at truth that allows for public scrutiny, that protects the rights of the accused as well as the accuser, that starts as neutral towards the question of what happened, if not at all neutral in its views of the meaning of the crime itself. E.g., an institution can have a prior belief that sexual assault is an extraordinarily serious violation which it will pursue vigorously, but when there is a question of consequences for an accused person, it has to start as neutral towards whether that accusation in that instance is true and it has to ask of the accused that they be willing to step outside of the private support system into a public judicial system charged with making a finding of truth.

Maybe the formal judicial system in the United States isn’t the best model for determining that kind of truth. There are a lot of reasons to question it. But some of its basic requirements strike me as indispensible: that its workings be public, that it be neutrally disposed at the outset towards the truth of any given accusation, that it have persistent rather than ad hoc procedures. I don’t have any problem with a private college privately deciding that it no longer wants to enroll a given student for almost any reason. That comes along with deciding freely whom you admit and don’t admit. But if what people want instead is a permanent note on a transcript, a compulsory requirement to attend counseling, a judicial-type consequence, then there’s got to be an established judicial procedure which by its character is necessarily completely different than a support system. On one level, I can’t help but feel that some of the concerned students want the college to impose judicial-type consequences for assault without the accusers having to undergo judicial-type scrutiny, to derive punishment and consequences out of the necessarily private, non-judgemental, emotionally healing logics of a counseling and support system.

There are really good reasons not to get those two things intertwined, even when the only judicial consequences being sought involve counseling, therapy or even mandatory dialogue between the accused and accuser. I think that one of the victims is right when she says of the accused, “this kid needs some serious counseling”. But I wish she could see why administrators said that there wasn’t any way to make that come about. That can’t happen unless a serious judicial procedure happens, and if the accused isn’t here, there isn’t any way to compel him to come here and be a part of that procedure without turning to the court system outside the college. Because even in a very small way, that deprives that person of his liberty. There isn’t any way to investigate that doesn’t require the public collection of testimony, and public scrutiny of the same. The victim observes that the college told her that either she and the other accusers “do something or nothing happens”. Yes, that’s right. That’s how it needs to be.