Justice at Cornell Requires More Than Campus Comfort

A young woman, known to the public only as Jane Doe, tells campus police she was drugged and raped by several men at a university fraternity house. She later repeats her account to the university’s own disciplinary investigators. Years pass; a civil complaint names seven fraternity members; students speak of a dark cloud over the campus; they say they are ashamed. The local prosecutor initially declines to bring charges. Only after new information and public scrutiny does that office reopen the matter, and only after “serious questions” are raised about the first inquiry does the governor appoint a special prosecutor and the state’s chief law officer open an active criminal investigation.

In my “Wealth of Nations” I argued that the sovereign has three duties: defence, a certain administration of justice, and public works not to be expected from private interest. Here it is the second which is on trial. The question is not yet whether particular young men are guilty; it is whether the first line of magistrates and constables did what men entrusted with other people’s safety are bound to do. When the governor says the woman was “failed at every turn,” she does not assert a conviction; she alleges a failure of that administration of justice which holds society together.

In “The Theory of Moral Sentiments” I supposed an impartial spectator, well-informed and disinterested, whose sentiments we consult when we judge our own conduct. Imagine that spectator placed in the fraternity house, in the campus police office, in the university clinic, in the prosecutor’s chambers. He might differ, as lawyers now differ, on whether conviction can be secured; but he would feel instant resentment at any heedlessness, any haste to close the file, any preference for the quiet of the institution over the safety of the vulnerable. To be praised for prudence when one has in truth been merely convenient is to be loved without being lovely.

Self-interest, under rules of justice, is the great coordinator of society; the butcher and brewer serve us because the law obliges them to keep their contracts. But when the rules are weak or the incentives perverse, that same self-love turns, with very little malice, into the “vile maxim” of all for ourselves and nothing for other people. Local prosecutors are judged by conviction rates, by budgets, by relations with powerful neighbours; campus police by the university’s desire for calm; administrators by rankings and donations. If none is clearly answerable for the safety of young women, the system will reliably produce soothing statements and unreliable protection.

One must therefore view with the most suspicious attention any arrangement by which a great university, a prosperous fraternity, and local dignitaries are left to examine themselves. People of the same trade, I once remarked, seldom meet without hatching a small conspiracy against the public; people of the same campus, one might add, seldom convene a committee without first considering the reputation of the college. That the fraternity house became, in one report, a crime scene, and yet yielded no prosecution, is precisely the sort of dissonance that warrants an authority from outside the circle of local sympathies and local fears.

The appointment of a special prosecutor and the opening of a fresh criminal inquiry are thus not an affront to local autonomy but an application of comparative competence. When those closest to the matter are entangled by past decisions, social ties, or simple error, it is proper that another magistrate, at a greater remove, should take up the file. The state’s duty is not to guarantee conviction, which no government can honestly promise, but to guarantee that a grave allegation is investigated with diligence, impartiality, and an evident concern for both the accuser’s safety and the accuseds’ rights. Anything less instructs every future victim to keep her misery to herself.

Some will object that the case is old, that evidence is imperfect, that students’ indignation is an unsafe guide to punishment. They are right about the evidence, and wrong about the conclusion. The more difficult conviction becomes, the more scrupulous the process must be, and the more carefully authorities must show their work. If, after a thorough and independent inquiry, no charge can be proved, the community will at least know that indolence and partiality were not added to misfortune. When a society cannot always secure justice, it must at least refuse to be seen as its accomplice.