Polis Rape Remarks Stoke Necessary (?) Controversy

Rep. Jared Polis.

Rep. Jared Polis.

MONDAY UPDATE: Rep. Polis himself answers some questions in the comment section below.


It’s been a hot topic for a couple of days now, as the Denver Post’s Elizabeth Hernandez reported late last week:

U.S. Rep. Jared Polis said Thursday that colleges should be able to use a lower standard of proof to expel students accused of sexual assaults on campus…

“If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people,” Polis said. “We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”

A private college, Polis also argued, may want to use a “preponderance of evidence” standard or lower threshold, such as a “likelihood standard.”

“If I was running one I might say, well you know, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual,” he said.

The audience at the hearing applauded his stance at one point, but the remark drew a sharp reaction from critics.

“Sharp reaction” may be a bit of an understatement. The fierce debate over laws and due process rights in sexual assault cases has pitched wildly back and forth in recent years, as an increasing preponderance of evidence that rape is a huge problem on college campuses is pushed back on by a vocal and generally conservative “men’s rights” movement. Anecdotal events like questionable reporting by Rolling Stone about a rape case at the University of Virginia are misused to discredit a mountain of statistical data. New individual studies released on the subject are immediately attacked by a robust internet and popular media culture of self-reinforcing rape apologetics.

Into this fraught debate steps Rep. Jared Polis of Boulder, who with his characteristic machete-through-red-tape attitude declares that a lower burden of proof may be sufficient in some cases for some schools, as he disclaimed it private schools. Polis Tweeted not long after, clarifying again that he wasn’t talking about a criminal burden of proof. Pundits from the Boulder Daily Camera to the Washington Post nonetheless have reacted more or less in rhetorical horror, warning of the loss of fundamental due process rights for the accused this would invite, and scoffing at the idea that having to change schools is a minor inconvenience for persons accused of rape.

For our part, we feel obliged to err on the side of sensitivity toward victims of sexual assault, recognizant of the struggles faced historically and today with a culture that tends to excuse or at least downplay this pervasive crime in too many cases. That means we’re not going to criticize Rep. Polis for making what we know many readers will believe is staking out controversial but necessary ground–in a debate that sorely needs better acknowledgement of what rape victims face seeking justice.

For those who are going to disagree, the comment section is open for you too.

52 Community Comments, Facebook Comments

  1. mamajama55mamajama55 says:

    I blame Jared's tie. If one must wear such a tie, then over-the-top-I-don't-care-what-you-think remarks follow naturally. You can see Jared and his tie at 1:57 in the Hearing video below.


    Expelling ten men (probably men) and insisting they go to school elsewhere as a consequence for being accused of sexual assault is hyperbole, and probably not an effective response. So blame Jared’s tie for probably not the smartest thing he’s ever said.

    But there needs to be a consistent process, including criminal investigation by regular police departments, in these cases. And the "Yes means Yes" campaign, in which both partners affirm positively that they do want sex,needs to become the new socio-sexual norm, instead of , "OK, she's drunk, unconscious, passive, silent, or out of it, so I get to do what I want" norm which prevails today. This also puts some responsibility back on women to break out of the passive mode, without cornering us back into the "Well, she wore revealing clothes, so she obviously asked for it" fallacy.



    • DavieDavie says:

      The confusion to me is the pseudo-legal "code of conduct" that most universities have to guide standards of behavior and in this case punish students if they violate them.

      However, for serious crimes (actually, for any crime), I think it obvious the administration should defer to local authorities and let the judicial process play out.  If a student is charged because there is probable cause, then suspension from the university would seem appropriate to protect the accuser and other potential victims.  If they are found guilty, by all means expel them (they would be serving prison time anyway).  But if they are not found guilty, then it's up to the administration to determine if the "preponderance of evidence" standard such that a civil suit would employ is sufficient to justify expulsion.

      • Andrew Carnegie says:

        Davie,  If the local cops investigated all crime on campus including under age drinking and drugs, the Ivy league would be shut down.  Society as we know it would cease to exist. Obama would still be in jail, well there is that.

        • DavieDavie says:

          AC, what you seem to be missing is the difference between a crime and a collegiate code of conduct violation.  The problem we are discussing is that crimes (which may or may not be covered in the code of conduct) should be reported to the police if the victim wants to have it pursued.  

          The issue seems to be that when the college cops/administration get involved, it has resulted in botched or suppressed investigations, and at the least can cause delays that can result in lost evidence and reluctant witnesses.

          Would Aurora police have reacted to the potential threat if the Aurora shooter's psychiatrist had gone to them instead of the campus cop who did nothing?  

          Think about that for a moment.

          • Andrew Carnegie says:

            A college administration administering justice is a joke.  If it is a crime, the victim and the mall cops that work for the college need to report it to the police and get the hell out of the way.

            • mamajama55mamajama55 says:

              OMG. I'm agreeing with AC.

              With a caveat: College administrations have more resources to staff rape hot lines and support groups. These groups can help guide victims to choose to report…or not ( to answer one of Pcat's earlier objections). Rape and domestic abuse hotlines have existed for years, and have helped victims through this dilemma.

              But I'm pretty sure that any professional paid staff of the university has an obligation to report an assault, or any other felony crime, to the regular police. There really is no option to dither. If a victim gets as far as to say ,"This happened. Was this an assault?" and through a counseling process comes to decide that the answer is "Yes," then it needs to proceed through investigation and reporting from that point.

              • SocialisticatProgressicat says:

                It's actually not true that all professional staff have an obligation to report, although some states are driving that way– in error, I believe.  Mandated reporting threatens victims more than it helps, in my opinion.

                Endangering a Trust

                • mamajama55mamajama55 says:

                  There seems to be a lot of inconsistency and confusion about who is mandated to report in higher education under the Clery law, and who has leeway. Here is CU's Clery policy, which seems to say that they are only obligated to report crime stats and tell students how and where to report crimes. That's why I think that Polis may be on the right track, however inartful his statement was; we need consistent policies and laws across institutions and state lines.

                  I know what the law is with children, and I'm a mandatory reporter. The way I deal with this is that I tell students upfront: "I read your journals and I listen to what you choose to share in class. If you share that you are being hurt or abused, or plan to hurt or abuse someone else, I have to report that to the councillor and to the school resource officer. I do not have the choice to keep that secret."

                  Middle school and high school kids seem able to understand this well enough – when they want to share, they do I'm guessing that college students could also handle making that decision. Here's some reasons why that law is a good idea: 15 years ago, a young girl wrote in a journal that her little sister was getting molested. I did not report this right away. When the parent of this child went to court to modify his visitation rights, this information could not be part of the court record. Probably, the child continued to be molested.

                  Here's another reason: Jerry Sandusky, the football coach who may have molested dozens of young boys and students, but because the university wanted to protect its donor base, it wasn't reported until decades later, when these young men had grown up and any physical evidence had long since disappeared.

                  Prompt mandatory reporting could have saved some kids a lot of pain and grief in just those instances.

            • DavieDavie says:

              While you are using an overly broad brush, you seem to have come around to agreeing with me on this one point.

              Code of conducts are all well and good, and college tribunals fine for infractions like plagiarism, cheating or other academic violations.

              But crime is crime, and victims should report them to the proper authorities — not be impeded by campus cops that work for an organization with a "reputation" to defend.

              But while the wheels of justice turn on criminal matters, the college does need to decide what to do about the status of that student, particularly for a violent crime.  A not guilty verdict is not the same as innocent.  It simply means it didn't meet the standard of beyond a reasonable doubt.  Botched investigations contribute to that outcome.

              • BlueCatBlueCat says:

                Agree and am fine with preponderance of evidence as in the example of the civil judgement against OJ. Not fine with a system that punishes anyone on accusation alone, especially under the assumption that probably only one or two out of ten (once again simply accepting Jared's own estimate, an estimate that seems highly unlikely BTW, for the sake of argument) actually did anything wrong but, what the heck, throw them all out. Having to transfer under suspicion of being a rapist is no big deal.  Ri-i-i-ight.

                As a matter of fact the premise that 80% to 90% of accusations are probably baseless, which would mean 80% to 90% of the accusers are horrible people, sounds as insane as anything else in that ridiculous statement. I have no idea where Jared came up with that figure. But he did and seems to think punishing that high a percentage of innocent people, already apparently victimized by that high a percentage of evil little false accusers, is perfectly reasonable.

                I think there must be something to PCat's idea that he must have been thinking out loud. Possibly while high because the more you examine what he said the more ludicrous it appears from top to bottom and from every possible angle. 

                • DavieDavie says:

                  Agree completely.  I think Jared regrets what he said, and the discussion has been very helpful for him and most of us too (Moddy ain't gonna learn, no way, no how!).  Might even lead to some useful legislation.

                  Heck, even AC agrees with us and vice versa on a couple key points.  That's gotta be worth something.

  2. BlueCatBlueCat says:

    I'm sorry but, no, I can't get behind kicking out a hypothetical innocent 80% to 90% (no idea whether that part's true or not but for the sake of Polis' argument accepting it) as being anywhere close to justifiable. Getting kicked out of the school you selected, maybe worked very hard to get into, feel is the best place for you to be to work toward your chosen career path and where you may have important relationships with mentors and friends is a very, very big deal.  

    As the mother of a son and the sister of three brothers I'm very much opposed to this cavalier attitude towards what Polis here estimates to be a huge number of innocent young men as being any sort of reasonable response to this problem. I don't accept that my innocent son, brother or nephew shouldn't matter as much as anyone else's daughter, presumably even if that daughter falsely accuses my son, the only possible interpretation of a presumption that only one or two out of ten of the accused is really guilty.

  3. itlduso says:

    I always thought American jurisprudence was partially founded on Blackstone's formulation, "All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer."  (At least that's what I stated in voir dire when I was selected to sit on a murder trial that I ended up as the foreman.  My response was to a question of what "innocent until proven guilty" meant to me.)

    Jared Polis is turning this on its head.  You're wrong on this one, Jared.

  4. Diogenesdemar says:

    Thanks Jared for demonstrating that you don't have to be a Republican to be dangerously wrong about something …

  5. BlueCatBlueCat says:

    I bet this response from so many of us politically correct libs might be surprising to our rightie trolls. Bet they expected us all to say that if just one rape victim can be protected from ever having to see her attacker again on campus it's fine for any number of innocent male students to be thrown out of school. Besides, Polis is gay and married so shouldn't we defend anything he says? After all, they're used to throwing out anything in the constitution they claim to love so much or the Bible they claim should determine our laws whenever anything in either of those documents proves inconvenient to pushing their agenda. Shouldn't we Johnnies do it too? If we don't, how are they going to use all those brilliant "Johnny does it too" arguments?

  6. mamajama55mamajama55 says:

    Universities are floundering on this issue. And while they continue to flounder, victims are taking the law into their own hands – anonymously publishing lists and names of accused rapists. We have just got to get consistent and fair rules and procedures on this.

    Lost in this is that 3% of victims are estimated to be male or transgender – either directly assaulted or as part of frat "hazing" or "initiation" rituals. There is some sick stuff going on, and university culture cooperates in hiding it and accepting it. Remember, Mitt Romney participated in a beatdown and forced haircut on an apparently gay student at his private high school. If a young man is assaulted and/or raped as part of a frat ritual, did he give consent? Is he likely to report? How about a transgender student?

    I have a son, too, platoons of college-age nephews, and hundreds of former and current sexually active male and female students. I would want them to have due process if accused of any kind of assault.

    But even more so, I want them to know what "consent" is. I want them to be empowered to say "yes" and to say "no", and to say, "I've changed my mind."


  7. SocialisticatProgressicat says:

    A "preponderance of the evidence" standard is a reasonable position to take.  This is not a criminal trial– nobody will be deprived of fundamental liberty as a result– and the standard is the same used in most civil trials, which I think is the better analog than criminal trials.  One person accuses another of wronging them and is required to have the better of the evidence to have their position take the day.

    Where Jared went off the rails was with the statement that we should be kicking guys out of college left and right (perhaps based on the number of collar pops), and the ridiculous idea that people at the next school apparently won't know why and will happily accept them.  Jon Stewart once talked about a mistake The Daily Show made on a story blasting Fox News, and the fact that the error allowed Fox to make the story about the mistake and not the larger point.  I'm afraid Jared just did this and made a really interesting idea look foolish and able to be easily dismissed.  Gotta keep the ego in check.

    • BlueCatBlueCat says:

      Agree that's where Jared went off the rails. And the notion that getting kicked out of school even if you're in the estimated 80 to 90 percent (his own assumption) innocent is no big deal is flat out insane. It's like saying to all the parents of all those sons… go ahead, sue this school. You can bet I would. The human and monetary cost would both be staggering.

  8. Jared Polis says:

    I support the "preponderance of the evidence" standard. The hypothetical situation I brought up was for a private college, I was making the point that they can set their own standards within the backstop of criminal law. I personally would not advise them to use a 20% standard, I think that preponderance of the evidence is an established best practice. It's what CU uses and is far more effective than the criminal standard of beyond a reasonably doubt in ensuring that rather than chasing off the victim to another college, that the perpetrator has to transfer if the bulk of the evidence shows he or she is guilty.



    • SocialisticatProgressicat says:

      Is this quote, then, inaccurate?

      If I was running one I might say, well you know, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual

      If you wouldn't advise them to do that, then you might not want to start by saying, "If I was [sic] running one…"  Not for nothing, but that sounds to me a lot like what you'd do if you were running one of those schools, and in my experience, it's the way people recommend a course of action.  Not every hypothetical needs to be explored ad absurdum, and that one certainly didn't.

      The truth is that a standard for proceedings that resulted in 70-80% of respondents being wrongly tarred as rapists doesn't work any better than the one we have now that seems to have the opposite problem.  We can't feed into the narrative that we're on a witch hunt for frat boys, or criminalizing sex (yes, I know that one spikes the irony meter) that the defenders of sexually violent behavior are using.

  9. Jared Polis says:

    I support the "preponderance of the evidence" standard. The hypothetical situation I brought up was for a private college, I was making the point that they can set their own standards within the backstop of criminal law. I personally would not advise them to use a 20% standard, I think that preponderance of the evidence is an established best practice. It's what CU uses and is far more effective than the criminal standard of beyond a reasonable doubt in ensuring that rather than chasing off the victim to another college, that the perpetrator has to transfer if the bulk of the evidence shows he or she is guilty.


    – See more at: http://coloradopols.com/diary/75718/polis-rape-remarks-stoke-necessary-controversy#comments

    • BlueCatBlueCat says:

      Unfortunately what you said was this and this, I’m sorry, is flat out insane. You can’t really mean you think it’s fine for 80% to 90% who did nothing to have their lives disrupted and their reputations tainted by being kicked out of school because that’s what this says, plain as day.

      “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people,” Polis said. “We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.” 

      Shana Tova.

      • Republican 36 says:

        I agree BC. Look what happened when the Duke University Lacrosse team was accused of sexual assault. The coach lost his position and several of the players ended up with criminal charges against them but when the investigation was all over, the authorities found that no criminal activity had taken place. The coach finally landed a position with a small college in Rhode Island but he and his former players will have to live with the fact that anytime someone Googles their name the allegations will appear as an item in the search. No one should receive either criminal or civil punishment for something they didn't do.

        • mamajama55mamajama55 says:

          The Duke Lacrosse case was an outlier. A) a purported victim of gang rape reported – and, according to RAINN, 68% of sexual assault victims do not report. B) the university acted to censure the athletes, and this happens in fewer than 7% of reported assaults. Even though that particular accusation turned out to be false, it will forevermore be cited as reason why campus rape is not a problem, and accusers should not be believed.

          This is the context of Polis' "hypothetical situation". While I agree that his wording was terrible (I still blame the tie),he was making the point that the pendulum needs to swing back to protecting victims, rather than protecting the accused. "Preponderance of evidence" should be the standard all schools, public or private, should use.

          I guess I'd like to see the way public schools report suspected sex assault and child abuse as a model for campus reporting. That is, at the first hint of abuse of any type, the teacher or another adult must report, to the counselor, Principal, or other authority. That person in turn must report to the police, who then investigate. This all needs to happen within 24 hours.

          This certainly results in some investigations that lead nowhere, as there are kids who accuse in order to get attention or for revenge. But an investigation by experienced police officers quickly weeds these out, and results in protecting victims.

          As many others have said on this issue, allowing universities to come up with their own guidelines and investigation protocols results in ineffective enforcement and wildly divergent outcomes, as well as little protection for victims. So I'm afraid that we're back to "Federal overreach" again – that is, there needs to be one standard for quick referral for criminal investigation for every institution, whether it gets public funding or not. 


          • SocialisticatProgressicat says:

            First, I agree that the congressman's intention was to support a standard that moves colleges to a model that is more supportive of victims.  He simply allowed himself to think out loud to the detriment of his argument (something I've done myself, I, too, suffer from the urge to work things through out loud).  I also agree that we need to come up with a minimum standard that colleges and universities must follow (maybe within the scope of Title IX)

            I am, however, wholly against any form of mandatory reporting like in elementary or secondary schools.  Mandatory reporting may be necessary for children who may not be able to effectively make decisions for themselves, but I cannot believe that adults don't have the right to make their own choice.  Every rape victim has the right to seek redress or not as they choose, and forcing their experience into an investigation before they are ready risks traumatizing them again.

            The choice to report and of the venue(s) for action are the victim's to make.  we have to create the systems that allow them to make those choices and give them the support they need regardless of what they choose. Which is why this bill, currently under consideration, is so awfully wrong.

          • Republican 36 says:

            I hope you don't believe I think campus rape isn't a problem. Even one is. The Duke University Lacrosse team case doesn't stand for the idea that campus rape isn't a problem. Its an example of a university administration that reacted and made decisions that will affect these individuals forever before they had the facts. I don't believe we should establish a standard that allows that to happen. If we did, a lot of innocent people would be harmed.

          • BlueCatBlueCat says:

            Outlier or not, people are not percentages. They are individuals. Group punishment of innocent individuals based on statistical probabilities is not OK, is profoundly unjust and profoundly un-American.

            No matter how Polis cares to explain what he said in terms of preponderance of evidence, what he actually said in the accurate quote in question was that it's perfectly OK to punish completely innocent students because they were accused even if there is no preponderance of evidence against them, even if it's only likely that one or two out of ten are guilty of anything, and that it does the innocent no serious harm to kick them out of school for something they didn't do. That's nonsense.

            He can stick by that or he can retract it but he can't successfully pretend his own plain words don't mean what they clearly do mean. 

            • Andrew Carnegie says:

              Polis' idea is nuts.  But then again I am a conservative who believes in the idea of innocent until proven guilty.  If you are charged with a crime, the burden of proof is beyond a reasonable doubt.  Rape is a crime.  Pretty simple stuff.

              • FrankUnderwood says:

                They're facing expulsion from school, not prison and a felony conviction. Different parties initiating different proceedings with different possible sanctions means different standard of proof.

                Besides, didn't you guys get the memo sent out by the RNC after the Todd Akin and Richard Mourdoch fiascos? Whenever the work "rape" is the topic, smart Republicans simply keep their mouths shut and say nothing. 

                • BlueCatBlueCat says:

                  Polis’ idea that it's OK to punish all ten of a group of accused even if there's only reasonable evidence against one or two is , indeed, nuts. While this puts me in agreement with AC on this one thing, in my defense, even a blind squirrel finds a nut once in a while. In this case, AC is that blind squirrel.

              • SocialisticatProgressicat says:

                Not really, because rape is also a tort, as is murder– see the OJ case where a criminal conviction couldn't be obtained, but a civil proceeding, with a different evidence standard, found him responsible– and nobody who goes in front of a school hearing is having a criminal case adjudicated.

                The standard in civil proceedings, and what the congressman and I argue should be in college tribunals, is not proof beyond a reasonable doubt.  It is proof by a preponderance of the evidence.  The fantasy that is often espoused by the Right, when they are crying persecution, is that all judgments we make should be held to the same standard we use to determine if someone should go to jail. That's asinine.

                Rape is a crime.  It's also a tort.  It's also a violation of most colleges' code of behavior.  It should be addressed by a standard of proof appropriate to the context in which the issue is heard.

              • MichaelBowmanMichaelBowman says:

                Unless it's about Hillary and her emails, then you pontificate that she's already guilty and will be 'convicted' (a word reserved for felonies, not civil matters). 

              • Duke CoxDuke Cox says:

                innocent until proven guilty.


                So…a Muslim is not a terrorist until proven to be so… a Mexican immigrant is not a smuggler until proven to be so…

                Like that?

    • Duke CoxDuke Cox says:

      With respect, congressman…you are wrong on this. The important point is this…

      better that ten guilty persons escape, than that one innocent party suffer

      for reals…

  10. DaftPunkDaftPunk says:

    If campuses weren't gun-free zones and all the co-eds were packing, this problem would solve itself.

  11. gumshoe says:

    Congressman, this is where you admit you misspoke and didn't mean to imply that you'd like to take a shit on the U.S. Constitution and Bill of Rights. 

    Now go write a big check to the ACLU. 

  12. SocialisticatProgressicat says:

    As quick as we are to cast blame, we should be to offer praise.  Thank you, congressman.

    U.S. Rep. Jared Polis, D-Boulder: 'I misspoke' on campus rape

    • mamajama55mamajama55 says:

      Good job, Jared Polis. I still disagree with you – I think we need one consistent set of policies and protocols across 1000s of campuses on sexual assault reporting, and that criminal investigations should come in very early in that process- but at least you admitted that you misspoke.

      • Duke CoxDuke Cox says:

        one consistent set of policies and protocols across 1000s of campuses on sexual assault reporting, and that criminal investigations should come in very early in that process

        This …yes.

    • BlueCatBlueCat says:

      I don't know how much credit Polis deserves for finally admitting that he, to put it very mildly, "misspoke" when he recommended kicking innocent students out of their schools but I certainly agree with this criticism in the article:

      Kerr took issue, however, with Polis suggesting last week that having accused assailants transfer schools would be a preferred solution.

      The congressman did not address that comment in his column, even though experts argue that schools dumping such students on peer institutions does not lower the risk of recidivism. As theUniversity of Michigan reports, the strongest indicator of future sexual violence is previous sexual violence.

      "It's going to follow that student to other schools," Kerr said. "The implication that they can go to school elsewhere and be normal — I don't think that's an accurate assumption to begin with."

      Isn't that exactly what the Catholic Church was doing with pederast priests all those years?  If all the schools just send those against whom they have a preponderance of evidence of sexual assault to other schools how does that make students anywhere safer? That method within the Catholic Church certainly didn't make children any safer.  As badly as the criminal justice system may handle sex crimes how is just moving sexual predators around a better solution.

      If there is a preponderance of evidence then the school should expel and bar the accused from campus and turn that evidence over to authorities in the criminal justice system. Rape is a crime, not just a violation of school rules. It's not just an individual victim's safety issue or an individual campus safety issue but a public safety issue.

      The recent history of the Catholic church is nothing if not a lesson in what a terrible idea it is to just move offenders to a different location, keeping the matter in house and out of the criminal justice system with the perpetrators free to repeat their crimes. I can't think of a clearer been there done that example.


      • DavieDavie says:

        Absolutely correct, BC.  After reading the article, where a big deal is made about not involving police or the criminal justice system, I still contend that the immediate reaction to a reported sexual assault should be suspending the student while the criminal investigation is underway.  Again, for the safety of the victim(s), but not a permanent expulsion since only the accusation stands at the moment.

        If the charges are dropped, found baseless or insufficient evidence, then the student should be reinstated.

        But you are absolutely correct that dumping the student on another university is the wrong answer just as it was for the Catholic Church and their predator priests.

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