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Witch Hunt on Campus

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 [1] 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.

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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 [2]—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).

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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 [3] 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.

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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 [4] 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.”

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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” [5] case, the incident [6] 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 [7], 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 [8] lock an accused student in a basement. An official at Dartmouth really did [9] ask, in a public forum, “Why could we not expel a student based on an allegation?” A Department of Education document really does [10] say that allowing cross-examination can contribute to a “hostile environment.”

But a few of my alarms rang true:

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 [14]. But they are disappointing nonetheless, especially when The Campus Rape Frenzy promises to be a high-priority target for activists to discredit.

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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 [15] 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 [16] 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 [17] the alarm [18] 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.
Follow @RAVerBruggen [19]

6 Comments (Open | Close)

6 Comments To "Witch Hunt on Campus"

#1 Comment By Michael Kaiser On January 23, 2017 @ 12:53 am

Sorry, but as with all spineless writers–which essentially covers the entire spectrum on this subject–who cover the topic, the reviewer has to throw out the gratuitous bow to purported victims by stating that there will be six “sexual assaults” committed against female students for every 1000 female students. Why don’t you really make it sound scary. Extrapolate it out to 10,000 students, then you can say there are 60 “sexual assaults.”

#2 Comment By Jack Shifflett On January 23, 2017 @ 8:18 am

A reasonably balanced article like this one ought not to be unreasonably and misleadingly titled: there is no justification for referring to a non-existent “Witch Hunt on Campus”. The Obama guidelines may be questionable, as may campus administrators’ interpretation and application of them; but attempts to deal with what is admittedly a complicated issue do not constitute a “witch hunt”. (For what it’s worth, I live in Missoula, Montana, where a high-profile “he said, she said” sexual assault case resulted in (among other things) a public trial, a verdict of “not guilty,” and a scathingly critical book by Jon Krakauer.)

#3 Comment By Mike E On January 23, 2017 @ 10:43 am

One other problem is that Title IX sanctions can be quite severe, and even the prospect of unfavorable publicity from a Department of Education investigation can be very embarrassing to administrators — but adjudicating a student a rapist under a “preponderance of the evidence” (51% to 49%) test has thus far carried far less consequences. Consequently, adjudicating the student a rapist is temptingly more convenient for college adjudicators.

I’m not suggesting bad faith on the part of the colleges. But this is what’s humanly to be expected from human nature in a bureaucracy.

#4 Comment By Dusty Rhodes On January 23, 2017 @ 3:43 pm

I work in the criminal justice system, and for a number of years provided “sex offenders treatment” at the local jail. I’d like to say that that campus rape cases are high profile, but probably not typical.

The more typical sex offender is someone with either borderline intellectual functioning or mild intellectual disability. Often the victim is a person of a similar mental age to the perpetrator. So, if the victim is 8 or 12 or 13, the perpetrator may have a chronological age in, typically, his twenties, but a mental age closer to the victim.

The other issue is that these offenses, especially the campus offenses, occur within the context of a cultural shift in terms of etiology of problems. Today, all problems are assumed to be the result of some kind of sexual trauma. It doesn’t really matter if there is any evidence of actual trauma, if a person is depressed, anxious, or acting out, then many people today believe there MUST have been some history of trauma.

Thus the motivation for the witch hunt.

#5 Comment By EliteCommInc. On January 23, 2017 @ 4:55 pm

Again, despite being highly critical of the previous executive. Attempting lay at his feet the mess and mass of coercive policies on this issue doesn’t have much in the way of veracity. While I would agree the coverage may make it appear that way. There has been a consistent, persistent onslaught against not only due process but every aspect of relational contact on this issue. The current string of policies were no issued in the WH. They have been pressed among psychologists, psychiatrists, counselors, social theorists, educators, and the legal profession with growing speed and aggressiveness since the the 1980’s.

I would grant the H leadership on the question has been nonexistent. Instead the WH chose to follow the liberal and feminist lead, expanding the definitions of rape and sexual assault to feed the argument. Even the Justice departments data on the number of assaults obtained via surveys, phone surveys leaves a good deal to be desired in collecting useful data sets.

What women and their supporters have argued for is in reality a pass for personal accountability for their intrapersonal exchanges. The arguments are loaded with unknowables as if they are in fact known or as if the unknown is truth. For example, if there are x number of rapes, there must be an x number of unreported rapes. The problem is that there is no known formulas for accurately determining what is unknown.

Let’s take for example the principle that every woman must be believed. That by definition makes every accused guilty. It ignores, circumstance, nature of relationship, communication etc.

The double standard on accountability resulting from the consensual use of alcohol is completely untenable.

#6 Comment By Chris On January 25, 2017 @ 2:56 pm

The “Dear Colleague” letter of 2011 placing the issue of preventing sexual assault of college students under the purview of Title IX enforcement is one of the greatest and most pernicious uses of federal power in education. I would like to see the current administration repeal the policy.