Now is the time that we, as a country, reflect on the record of the previous administration and nervously watch as a new president takes on the world’s most powerful office. And in a book due for release tomorrow, K.C. Johnson and Stuart Taylor Jr. urge us to consider one part of the Obama legacy in particular: his administration’s stoking of “witch hunts” against college students accused of sexual assault.
The Campus Rape Frenzy is not without its flaws. But it paints a disturbing and powerful portrait of the ideologies and disciplinary procedures that reign at this nation’s colleges.
Let’s be clear from the outset: sexual violence is a real threat to women of college age. Even according to the lowest credible estimate—that of the Bureau of Justice Statistics (BJS)—a group of 1,000 college-enrolled young women will experience six sexual assaults in the typical year. Even small colleges, therefore, can expect that at least a handful of their female students will be assaulted, though not necessarily on campus or by a fellow student. One-third of these assaults are completed rapes, another quarter are attempted rapes, and the rest are threats or other assaults (such as unwanted groping).
And as Johnson and Taylor note, the BJS estimate may well be low. The survey it relied upon is conducted in-person and by telephone, and some women may hesitate to discuss what happened to them. The survey also does not specifically prompt women to report incidents in which they were incapacitated by alcohol to the point that they could not consent.
Campus activists, however, think the true number is much higher. For decades they have claimed that 20–25 percent of female students will be assaulted during their time in college—something like ten times what one would expect from the BJS number—and they have various surveys to back them up. The problem, as Johnson and Taylor explain, is that those other surveys suffer from problems at least as bad as the ones plaguing the BJS report. They often classify non-criminal incidents as sexual assault or have low response rates (meaning the people who took the survey are likely not representative of the overall population). And sometimes, the results are just odd: in one survey, more than 40 percent of students who reported being forcibly raped said they didn’t report it to police because they didn’t think it was serious enough.
A related question is how often men are falsely accused of sexual assault. Unfortunately, this is something no one can really know. Some rape accusations are proven true, and others fall apart upon examination—but a great many are “he said/she said” claims that cannot be labeled true or false with any confidence. Johnson and Taylor wade through a variety of studies that, using different data and different (sometimes indefensible) methodologies, reach estimates ranging from 2 percent to 17 percent to 41 percent.
The “he said/she said” nature of so many of these cases is also, it must be said, a very real obstacle to punishing rapists. Too often, even the guilty can plausibly deny their accusers’ allegations.
The Obama administration and campus administrators had a simple response to this complicated state of affairs. They accepted the highest estimates of sexual-assault rates and the lowest estimates of false-accusation rates—and then, convinced they were attacking a problem of epidemic proportions and ran little risk of punishing the innocent, tarred accused students as rapists and kicked them out of school without providing them much of an opportunity to defend themselves.
Innocent students treated this way suffer irreparable damage to their education, their reputations, and their employment prospects. Johnson and Taylor profile several who show signs of post-traumatic stress. Those who are guilty, by contrast, are perfectly free to continue assaulting women, because colleges have no authority to actually incarcerate anyone. Indeed, the BJS reports that young women who are not enrolled in college have higher victimization rates than enrollees.
Reasonable people can disagree as to how, exactly, colleges should deal with sexual assault. There is a good argument to be made that this is an issue for police, not campus disciplinary processes. As Johnson and Taylor discuss, the latter lack key elements of a real trial, such as subpoena power, and were designed to address academic infractions such as plagiarism, not felonies. But there is also an argument that colleges have a duty to protect the students under their care by expelling probable rapists, much the way employers are expected to stop sexual harassment in the workplace. Indeed, if we are truly to believe that one-fifth of college women are sexually assaulted, we could easily support numerous other measures as well, such as sex-segregated campuses or a draconian crackdown on underage drinking.
And if colleges are to get involved in these cases, reasonable people can disagree as to what exactly the process should look like. What individual or tribunal should decide whether an accusation is true, and what should the burden of proof be? Should it be the “preponderance of the evidence” standard that prevails in civil trials (which are sometimes used to seek damages from unconvicted rapists)? Or should it be the higher “clear and convincing evidence” standard that many colleges used until recently? How much time should the accused have to prepare his defense, what role should his lawyer play if he chooses to hire one, and should he be allowed to cross-examine his accuser? Should he be suspended as he awaits the proceedings, so that an alleged victim doesn’t have to share a campus with her alleged rapist?
No reasonable person could defend the system we have now, however. Thanks largely (but not entirely) to “guidance” from the Obama administration—written under the authority purportedly granted by Title IX, the federal law forbidding sex discrimination in higher education—many schools have put together the most extreme possible combination of the options mentioned above. A single “investigator-adjudicator” handles the cases, meaning they “investigate, prosecute, and convict, with little effective power of review,” as a district judge once put it. The accused have little time to prepare a defense, lawyers are barred from playing an active role, and cross-examination is not allowed.
The burden of proof is a mere preponderance of the evidence—and a tacit presumption of guilt hangs over the proceedings, making it especially easy for accusers to reach that threshold. Adjudicators have often been trained that false rape accusations are vanishingly rare, and training materials often matter-of-factly refer to all accusers as “survivors” or “victims.”
This book contains horror stories aplenty. Readers will already be familiar with some: the late-George W. Bush-era Duke lacrosse case (the subject of a previous book by Johnson and Taylor), the recent Rolling Stone article that took at face value an outlandish allegation of rape at the University of Virginia, the “mattress girl” case, the incident featured in the documentary The Hunting Ground. But Johnson and Taylor shine a spotlight on many, many more.
There are several common threads. Alcohol is almost always involved. Long periods of time often pass between the sexual encounter and the allegation of assault. Accusers’ stories change. False accusations stem from guilt (as some encounters involve infidelity), subsequent fights in the relationship, or strong suggestions on the part of campus officials eager to believe that rape is widespread. And even when exculpatory information comes to light—frequently in the form of text messages or social-media posts that are inconsistent with the accuser’s story—schools sometimes ignore it or withhold it from the accused. A case at Amherst, whose graphic details I will not go into, is particularly illustrative of nearly all of this.
This brings me to my one criticism of The Campus Rape Frenzy. The authors’ deluge of unbelievable stories makes for gripping, frightening reading, and it makes it easier to digest the book’s intricate descriptions of the relevant legal details. But unbelievable stories are, well, hard to believe, spurring readers to check questionable claims with their own research. I haven’t comprehensively fact-checked the book, but I did run down the footnotes for a handful of claims that set off my BS detector.
There were some false alarms. Campus security at Colgate really did lock an accused student in a basement. An official at Dartmouth really did ask, in a public forum, “Why could we not expel a student based on an allegation?” A Department of Education document really does say that allowing cross-examination can contribute to a “hostile environment.”
But a few of my alarms rang true:
- The authors write that the federally funded Campus Sexual Assault Study classified people as sexual-assault victims if they “had intimate encounters while even a little bit intoxicated.” In fact, to gauge incapacitation, respondents were asked if they’d had sexual contact while they “were unable to provide consent or stop what was happening because you were passed out, drugged, drunk, incapacitated, or asleep”—which, while arguably imprecise, is a far cry from “a little bit intoxicated.” (The source of the confusion may be a follow-up question asking if the respondent had been “drinking alcohol,” but this is asked only of those who said yes to the first question. It’s one of several follow-ups aiming to uncover the circumstances surrounding their incapacitation.)
- Johnson and Taylor describe a University of Wisconsin policy as “essentially tell[ing] students that if they fear disciplinary trouble for ‘improper use of alcohol,’ they can get a free pass by accusing another student of sexual assault.” The policy in question just says that when a student reports a sexual assault, she won’t be punished for consuming alcohol if that is part of the story. It’s hard to imagine this issue being handled any other way: if a 19-year-old reports that she was raped after getting drunk at a party, in what universe does the college then punish her for underage drinking?
- In a spat between two female lawyers involved in this issue, one told the other to “stop using your gender and your status as a feminist to persuade others that you are also an advocate for women’s safety and equality.” This comes through in The Campus Rape Frenzy as a demand to “stop describing herself as a woman.”
These aren’t fatal misrepresentations; any book this densely packed with facts is bound to have some minor issues like this, given that (contrary to popular perception) books are generally not fact-checked by a third party. But they are disappointing nonetheless, especially when The Campus Rape Frenzy promises to be a high-priority target for activists to discredit.
It is difficult to fight the trend away from due process. Some wrongly accused students have turned to lawsuits; one argument they make is that bias against the accused is effectively anti-male, and thus, ironically, a violation of Title IX. There have also been efforts at reform within academia, including Harvard Law’s decision to offer more rights to the accused than the rest of the university does. State legislatures could get involved as well, though few show much desire to—indeed, some have gone the other way, requiring colleges to apply an “affirmative consent” rule in sexual-assault cases. (This is the “yes means yes” standard, in which one’s sexual partner must overtly consent to each escalation of the encounter.)
And of course, the new Trump administration could withdraw Obama’s “guidance” and give colleges more discretion. His pick for education secretary, Betsy DeVos, has supported the Foundation for Individual Rights in Education, which is strongly supportive of due process for accused students (and is cited heavily in The Campus Rape Frenzy). Liberals have already raised the alarm about what this could mean. Others may hope they’re right to be worried.
My own guess is that we will see a sort of ratchet effect, at least until the current wave of political correctness dies down. Without Obama’s guidance, colleges probably would not have stripped away due-process protections to the extent that they did. But that doesn’t mean they’ll go back in the opposite direction if given the opportunity. Whatever the federal government does, it seems unlikely that college administrators, who lean strongly to the left themselves, are going to take on liberal campus activists to make it harder to discipline students for sexual assault.
Robert VerBruggen is managing editor of The American Conservative.