The trial of the summer is taking place in a Colorado federal court. Taylor Swift is facing off against a Denver radio personality named David Mueller. At issue is a brief encounter in June 2013. Mueller and his girlfriend took a picture with Swift after a concert. Swift said that Mueller groped her by putting his hand on her behind. Her security team notified Mueller’s employer of the incident, and they promptly fired him. TMZ obtained a picture of the fateful moment:
Taylor Swift — The 'Sexual Assault' Photo I Wanted to Keep Secret (PHOTO) https://t.co/qT5FRZLo4T
— TMZ (@TMZ) November 12, 2016
Incredibly — and in spite of the awkward pictorial evidence — Mueller sued Swift, attempting to hold her responsible for his lost salary and other business opportunities. Rather than settle the case quietly, Swift did something unusual. She countersued — asking for only $1 in damages — and demanded a jury trial.
That trial is taking place now, Swift took the stand this week, and news of her testimony rocketed around the pop-culture internet. BuzzFeed, ever opportunistic, has already posted its summary of Swift’s “Bada** and amazing” quotes, and I have to confess — they are pretty strong. Swift was incredibly defiant during cross examination. For example, in response to a question asking if she was critical of her bodyguard for failing to prevent the incident, she responded, “I’m critical of your client sticking his hand under my skirt and grabbing my a**.” When the defense asked her why the front of her skirt appears unruffled in the photo, she said, “Because my a** is located on the back of my body.” There’s more, but you get the idea.
So, what the heck does this have to do with Title IX? What bearing does this case have on the alleged campus-rape crisis and the ongoing ideological and legal battle over campus courts, burdens of proof, and due process? It’s simply this: Swift is showing America — in the most public way possible — that when it comes to adjudicating claims of sexual assault, the choice isn’t a binary one between criminal prosecution and campus kangaroo courts. There’s a third option: civil litigation.
A criminal-justice-only approach to sexual assault suffers from a number of flaws. The high burden of proof (necessary when a man’s liberty is at stake) means that an unknown number of meritorious but difficult-to-prove cases never make it to court. Also, when the prosecutor is in ultimate control, the accuser can sometimes feel a bit like a helpless bystander in her own case. And the extreme penalties themselves can sometimes deter reporting. A victim can be angry or hurt about an encounter, but not angry enough to seek prison for the accused.
But what about campus courts? I’ve written extensively about their many deficiencies. The results are exactly what you’d expect from a system built by highly ideological activists who were convinced that they could create a process where (1) it would be easy for women to come forward; (2) their claims would be relatively simple to adjudicate; and (3) justice would be done. Accused students are often denied any substantial legal assistance, access to witnesses, full information about the charges against them, the power to conduct legal discovery, and the ability to effectively question their accusers. Their cases are typically adjudicated before “tribunals” full of poorly trained ideologues who completely ignore standard rules of evidence.
The results arepredictably abysmal. The irresistible ideological force met the immovable constitutional object. It turns out — surprise, surprise — that sexual-misconduct claims tend to be anything but “easy” to decide, and that government entities don’t in fact enjoy carte blanche to violate students’ civil liberties for the sake of “social justice.”
But there’s another way, the Taylor Swift way. Civil litigation requires plaintiffs to prove their case only by a “preponderance of the evidence.” Moreover, a plaintiff runs her own case. She can choose to file, she can choose her lawyers, and she can choose to settle. Courts also have far more power than campus tribunals. Unlike a campus court, they can issue injunctions and order defendants to pay compensatory and monetary damages.
At the same time, however, the accused enjoys the full array of due-process rights. He can use a lawyer. He has a right to see the evidence against him, a right to question witnesses, and a right confront his accuser. Oh, and the case goes before an impartial judge and a jury of his peers, not an ideologically stacked tribunal of social-justice warriors. The civil-litigation system corrects all the due-process flaws of campus kangaroo courts while also granting the accuser far more power to seek justice for wrongdoing.
A court-focused campus response to Title IX would be easy enough to construct. When women come forward to report assault, trained employees could inform them of their legal options, connect them with the police (if appropriate), and refer them to lists of lawyers. The university could then separate accuser and accused through no-contact orders throughout the resulting legal process. Then, when the court case is over, the university could take action based on the results — results obtained through the use of full and appropriate due process.
There is no perfect solution. Ideologues have to understand that justice is hard, even under the best of circumstances. There’s simply no way to easily, cheaply, and justly adjudicate sexual-misconduct claims. And there’s certainly no way to painlessly try these cases. It took bravery for Swift to make her claims. But bravery can be contagious, especially when it’s this public. Once you abandon the dangerous quest for legal utopia, you can see the solutions staring you in the face — solutions that have been there all along. Follow Swift’s lead. There is a place for legal disputes: in a court of law.