By ASHE SCHOW (@ASHESCHOW) • 1/6/16 2:34 PM
Two students expelled for campus sexual assault are suing their university, alleging racism played a role in their case.
The two accused students, identified in the lawsuit as Justin Browning and Alphonso Baity, II, are both African-American. They were accused by a white woman, identified in the lawsuit only as M.K., after an encounter at a party.
Browning and Baity were expelled despite the fact that every witness interviewed corroborated the accused students' story, and that witnesses came forward to say that M.K. bragged about the encounter as a consensual act. Not only were they expelled, but the expulsions came just two days after the accusation was filed, and campus procedures regarding sexual assault accusations were not followed.
The two students are suing the University of Findlay in Ohio, which has a student population of more than 5,000. Of that total, just 3 percent were African-American in the fall of 2014, when the case took place. This percentage is slightly higher than the surrounding city of Findlay, which has an African-American population of just 2 percent.
Every university employee who handled the accusation was white. In addition to the usual claims of gender discrimination, violation of due process and breach of contract that are common among accused students suing their schools, Browning and Baity's lawyers are including two counts of racial discrimination.
I've read and reported on numerous lawsuits by accused students — and every one has been stunning. So you'll have to believe me when I say this one is the most incredible I have ever seen.
In the fall of 2014, Browning and Baity were roommates at a campus-owned house, along with two other men. M.K., the accuser, became friends with all four, and frequented the home numerous times in the first months of the school year.
On Sept. 20, 2014, the roommates and some other friends, along with M.K., attended a house party together. The lawsuit alleges that M.K. appeared to drink from a Gatorade bottle, but did not appear intoxicated at all throughout the night.
Also from the Washington ExaminerAt the party, M.K. hugged Baity (who did not drink at this party) and asked where Browning was. When she found him, she took his phone and entered her number, then led him to the dance floor where the two danced and kissed. M.K. asked Browning to leave the party with her, and the two returned to Browning's residence along with two other friends.
The friends talked when they got back to the residence, but after a few minutes, M.K. and Browning went to Browning's room and engaged in sexual activity. The lawsuit makes sure to detail the activity and the consent provided by M.K. The lawsuit claims that "Browning never coerced, threatened, forced, or otherwise made or threatened M.K. to perform any sex act or engage in any type of sexual activity or physical contact." It also says M.K. never told Browning "no" or "stop" and gave no indication, whether directly, indirectly or implicitly, that she did not consent.
"To the contrary, M.K. affirmatively consented to the sexual activity(ies) by saying 'yes,'" the lawsuit says. "At all times, M.K. initiated all sexual activity and physical contact of a sexual or intimate nature with Browning, and physically and verbally encouraged and voluntarily consented to such contact and interaction."
These same descriptions are used to describe the sexual encounter M.K. had with Baity that evening.
When Baity returned to the house later that evening, he found M.K. and Browning engaged in sexual activity in his room. He entered to retrieve a phone charger. When she saw Baity, M.K. suggested he join in the activity, according to the lawsuit. Baity agreed and he and M.K. engaged in sexual activity while Browning remained on his own bed.
Baity left the room and joined his friends and roommates in the living room. Soon after, M.K. left the room without clothes on, and laughed about needing to vomit, though she didn't. She remained naked and sat on the couch to talk with everyone.
At some point M.K. returned to the bedroom with Browning and again engaged in sexual activity. Again, the lawsuit claims the acts were consensual and that M.K. initiated.
Throughout all of this, the roommates and friends heard sounds coming from the bedroom that indicated consensual sexual activity.
M.K. left in the morning and returned to her dorm, where she discussed the previous night with other women in the dorm, including the resident assistant. According to at least one of these women, M.K. bragged about the evening and her sexual activity with Browning and Baity. M.K. never suggested any sexual assault took place.
Around that same time, M.K. also told another of her friends about the sexual activity with Browning and Baity; again, she was bragging. She even interacted with Baity and his friends in the days following the encounter.
Yet 10 days later, M.K. would accuse Browning and Baity of sexual assault.
The university has a duty to investigate sexual assault accusations due to a reinterpretation of Title IX, the federal statute banning sex discrimination. The university claims to provide a "prompt, fair and impartial investigation and resolution to all alleged incidents of discrimination prohibited by Title IX." The school also says it will conduct its investigation within 60 days of receiving a complaint. Two days certainly falls under that timeframe, but given the seriousness of the charges (sexual assault by two men on the same night), two days seems an implausible timeframe to find two students responsible.
The university's investigation policy also mentions hearings, but none were ever held. The lawsuit also claims neither Browning nor Baity received specifics about the allegation against them.
The university didn't even interview M.K. about her report, nor did it follow up on any of the witnesses M.K. named in her report, according to the lawsuit. The university didn't seek video evidence alluded to by M.K. in her report.
The university did interview one of Browning and Baity's African-American roommates. They did not interview their other two African-American witnesses. The students believe this is due to the university believing that "because of their race, ethnicities, and/or gender" the statements of the other two African-American witnesses "would be biased in favor of Plaintiffs and contain no useful information."
The lawsuit claims this was racial discrimination against the two accused students as well as the two other African-American witnesses.
As evidence for this discrimination, the lawsuit notes that the school interviewed the two white women who were present at the house the night of the encounter. The accused students believed these women were chosen as witnesses because the school thought they would side with the white female accuser.
They didn't, however, as the two women corroborated the accused students' version of events. The lawsuit alleges that the women's refusal to side with the accuser led to retaliation against them by the university. One of the female witnesses was terminated from her work-study job and took another position with the university. The other female witness was threatened with expulsion. She was saved when her mother called the school.
Further, the university appeared to try and bring up Baity's past sexual history by interviewing a woman he previously dated (who was not present on the night in question). This, too, did not turn out well for the university, as the woman said that Baity was always respectful with her and never forced or coerced her into sex. She also said he was never violent or abusive.
Despite witnesses corroborating the accused students' side of the story, Browning and Baity were expelled two days later.
No recordings or transcriptions exist of any interviews conducted by the university. In a bizarre procedure, two administrators would interview a witness and take separate notes, then one of the two would create a "summary" statement and combine the notes. The original, separate notes would then be discarded.
On Oct. 3, 2014, two days after M.K. filed her complaint and 13 days after the sexual encounter, Browning and Baity received expulsion letters. Each student was allowed to appeal the decision within 72 hours, and even though they were forced to move back home (each lived outside of Ohio), they filed their appeals within the time allowed.
Yet before the 72-hour period ended, and before the appeals were heard and decided upon, the university sent out a campus-wide email naming Browning and Baity and announcing their expulsion for sexual assault.
One of the original women M.K. bragged to saw the email and was disgusted. She contacted her resident adviser (who had also heard the boasting) to discuss the false accusations. Her resident adviser told her to leave it alone because the matter was closed.
Browning and Baity's appeals were both denied (how could they not be, when the entire campus already believed they were guilty?). They each received the same letter about their finalized expulsion — only the names were changed.
Another friend of M.K. who had heard her boasting sent an email to the university after the final expulsion letters were sent. This friend told the university that M.K. had bragged about the consensual sexual activity. Two days later — and now a week after the accused students had first been expelled and forced off campus — the university interviewed this friend of M.K. The friend again said that M.K. had bragged about the evening and that everything had been consensual.
The same day this friend was interviewed, one of the other African-American roommates who had been present but not interviewed previously, was finally interviewed by the university. He, too, corroborated the accused students' version of events. He also mentioned to the university that videos of the night in question existed, but the university never attempted to locate these videos.
The accused students were led to believe that M.K. also went to the police with her accusation but that no charges were filed after a police investigation. Neither student has been charged with a crime.
The students allege racial discrimination in their lawsuit, and note that the only other students expelled from the university for sexual assault were other African-Americans, each accused by white women. The students also claim in their lawsuit that university officials have said the school's policy is to find in favor of female accusers.
In an email to the Washington Examiner, the University of Findlay defended itself against accusations that it conducted an unfair investigation.
"The university conducted this process with integrity and fairness," wrote Joy Shaw, the school's media relations coordinator. "We will vigorously defend the process and our decision."
By R.S. McCain
Sexual savagery on the streets of Germany:
Roving packs of men sexually assaulted dozens of women on New Year’s Eve in western Germany’s city of Cologne, officials said, describing the attacks as unprecedented.
The spree suggested a “new dimension of organized criminality,” German justice minister Heiko Maas told a press conference on Tuesday.
Police said the attackers — who struck in pairs and groups of up to 20 men — appeared to be part of a larger, 1,000-strong group that had gathered in one of the city’s main plazas for New Year’s celebrations.
Cologne’s police spokesman Thomas Held told NBC News that authorities had fielded around 90 complaints of pick-pocketing, groping and at least one of rape.
Eye witnesses described getting groped multiple times near the city’s train station and its famed cathedral.
“It was horror. Although we shouted and hit around us, the guys did not stop. I was desperate,” a 28-year-old woman identified as Katja L. told Cologne’s Express newspaper, saying she was groped about 100 times while walking 600 feet.
(It was almost as bad as a University of Virginia frat party.)
Another woman, who did not give her name, told Bild newspaper that several men attacked her and her friend. “They had circled us and started to grope us. They were everywhere with their hands,” she said. . . .
Police on Monday had said the suspects appeared to be of “Arab or North African descent,” sparking fears on social media they were among around 1 million asylum seekers who have flooded Germany this year.
American feminists, who have incited irrational hysteria over a non-existent “rape epidemic” on U.S. college campuses, will ignore this news. American feminists never said a word about the Rotherham Horror, in which English girls as young as 11 were pimped out by Muslim predators. American feminists don’t want to call attention to certain crimes committed by certain criminals, and it is not just Juanita Broaddrick’s rape accusation against Bill Clinton that feminists demand that we ignore. The feminist movement in the United States is controlled by the Democrat Party, and therefore rape is just a talking-point to them, an “issue” that feminists help Democrats exploit for partisan purposes. Because feminists are dishonest partisans, their agenda requires a lot of deliberate falsification — the phony “1-in-5” statistic, the UVA rape hoax, etc. — and it also requires feminists to ignore a lot of actual rapes which do not fit the Democrat Party-approved propaganda narrative.
Feminists have expended enormous effort to create the impression thatrape is a crime commonly committed by “privileged” college boys. This falsehood serves the interests of the Democrat Party in several ways, especially because demonizing “privileged” (i.e., white, middle-class, heterosexual) males is part of a message that helps Democrats mobilize female voters, minority voters and gay voters. This is a type of hate propaganda which masquerades as “progressivism.”
By an obverse principle, the Democrat Party propaganda machine (including feminists) ignore any news that would suggest either (a) mass immigration is harmful to American society, or (b) Islam is dangerous. No matter how many violent crimes against women in the U.S. are committed by illegal aliens, no America feminist will ever call attention to such a crime, because all immigrants are presumably part of the Democrat coalition, and it’s bad publicity to mention how much harm their party’s constituents inflict on innocent Americans. (This is why liberals ignorerampant crime in Chicago and other Democrat Party strongholds.) Similarly, because most Republicans believe that radical Islam poses an existential threat to American civilization, Democrats (including feminists) pretend that Muslims are less dangerous than Methodists, Mormons or Mennonites. For more than three decades, feminists have been shrieking about the theocratic menace posed by “the Religious Right” (i.e., any Christian who votes Republican) and yet at the same time, feminists demand that Americans believe Muslims are all harmless misunderstood victims of “Islamophobia.”
American feminists will tell any lie if it helps the Democrat Party, and you will be accused of “hate” if you dare to tell the truth about what unrestricted Muslim immigration will mean:
Just five arrests have been made by German police after central Cologne was transformed into a war-zone on New Year’s Eve, as an estimated 1,000 migrants celebrated by launching fireworks into crowds and sexually assaulting German women caught up in the chaos.
The sordid details of the horrifying sexual assaults and attacks made against ordinary Germans by large gangs of migrants in Cologne in the early hours of Friday morning are just now emerging. . . .
One woman had her tights and underwear torn off by the crowd, and a police source quoted said there had been “rapes” at the station that night.
So far, police have identified 80 victims of the gangs, 35 of which were subjected to sex attacks. Others were assaulted or robbed. Officers suspect there are many more as of yet unreported cases from the night, and are appealing for victims to come forward after their ordeals. . . .
In addition to the sex attacks, there were several brawls between migrant gangs at the railway station, and large numbers of fireworks were fired into the crowds and at the hapless police.
This violent mayhem is coming soon to an American city near you, thanks to the Democrat Party and their feminist propaganda squads.
By R.S. McCain
“But the hatred of women is a source of sexual pleasure for men in its own right. Intercourse appears to be the expression of that contempt in pure form, in the form of a sexed hierarchy; it requires no passion or heart because it is power without invention articulating the arrogance of those who do the f–king. Intercourse is the pure, sterile, formal expression of men’s contempt for women . . .”
— Andrea Dworkin, Intercourse, 1987
“Male power is systemic. Coercive, legitimated, and epistemic, it is the regime.”
— Catharine MacKinnon, Toward a Feminist Theory of the State (1989)
“There are politics in sexual relationships because they occur in the context of a society that assigns power based on gender and other systems of inequality and privilege. . . . [T]he interconnections of systems are reflected in the concept of heteropatriarchy, the dominance associated with a gender binary system that presumes heterosexuality as a social norm. . . .
“As many feminists have pointed out, heterosexuality is organized in such a way that the power men have in society gets carried into relationships and can encourage women’s subservience, sexually and emotionally.”
— Susan M. Shaw and Janet Lee, Women’s Voices, Feminist Visions (fifth edition, 2012)
“Ultimately, there was a disenchantment with the ‘No means no’ framework — by requiring women to say no, we reinforce the idea that sex is something women, by definition, have, which men are trying to get, and of which women must be the moral guardians.”
— Jill Filipovic, “America, pop culture and tackling sexual assault,” Oct. 10, 2015
You probably have to read a lot of feminist theory (and I’ve been immersed in it for months) to understand that feminist rhetoric about a “campus rape epidemic” isn’t actually about rape. There has been no such “epidemic” on America’s university and college campuses, or anywhere else for that matter. Statistics from the Justice Department show a remarkable decline in the incidence of sexual assault in recent decades, which may be explained by a number of factors, including legislation (e.g., sex-offender registries) and technological advances in law enforcement, including DNA testing and widespread video surveillance. Sexual predators are less likely to get away with their crimes, and more likely to be locked away for long sentences when apprehended, preventing them from becoming repeat offenders.
American women are now less at risk of rape than at any time in the past 40 years, and the emergence of a frantic hysteria about “rape culture” on college campuses therefore seems contradictory — unless you understand how feminist theory “problematizes” heterosexuality.
To those who have read my book Sex Trouble, or followed the continuing discussion here, it is unnecessary for me to explain that feminist theory views heterosexuality as practically synonymous with male supremacy. Andrea Dworkin’s 1979 declaration that “the essence of so-called romance . . . is rape embellished with meaningful looks” was perhaps the most vivid expression of this view, but radical theory has been so widely promulgated within academic feminism (particularly within university Women’s Studies programs) that it is taken for granted.
Anyone who has read Catharine MacKinnon’s Toward a Feminist Theory of the State recognizes that what Jill Filipovic is calling into question — “the idea that sex is something women, by definition, have, which men are trying to get” — is simply normal human heterosexual behavior. The dynamics inherent to the testosterone-fueled male sexual drive as a biological force of nature, and the social customs necessary to restraining this unruly force, are not really controversial, except in feminist theory, which emphatically denies that there is any such thing as “human nature.” Because social customs surrounding sexual behavior have traditionally required certain female responsibilities (i.e., placing women in the role of “moral guardians,” as Filipovic says), feminists have sought not merely to destroy these customs (thus to absolve themselves of responsibility, moral or otherwise) but have attacked as “sexist” our basic understanding of normal sexual behavior.
What Filipovic describes as feminist “disenchantment with the ‘No means no’ framework” amounts to an admission that the recent rhetorical fury about “rape culture” is actually an attempt to move the goalposts, in such a way as to criminalize normal male sexual behavior. The confusion created by so-called “affirmative consent” policies (also known as “yes means yes”) is understandable because most people would be shocked senseless if they stopped to consider what it actually means. Under the rules of “affirmative consent,” any attempt by a male to initiate sexual activity with a female, under any circumstances, is presumed to be sexual assault if she says it was. If a man and a woman have any sexual contact whatsoever — a kiss, a hug, anything — and she subsequently claims this contact was “unwanted,” “unwelcome” or “coerced,” then he is presumed guilty of sexual assault.
The ‘Regret Equals Rape’ StandardWe have seen this scenario made explicit by numerous recent lawsuits filed by male students protesting the denial of due-process rights in university “sexual misconduct” cases. An official at Washington and Lee University in Virginia, for example, reportedly told students that “regret equals rape,” which the plaintiff said led to his girlfriend claiming he had raped her. In other cases, notably the “Mattress Girl” episode at Columbia University, it appears that accusations of sexual assault were acts of revenge by women who felt spurned after a sexual hookup did not lead to a romantic relationship. Obviously, the kind of “hell hath no fury like a woman scorned” situation outlined in the Nungesser v. Columbiacomplaint should alarm any parent who has a son attending college, or hoping to do so in the future. Any male student could be subjected to this kind of heinous treatment if he has any interaction with a female classmate which she subsequently regrets. Indeed, hysterical claims about a “campus rape epidemic” seem to have inspired some female students to invent sexual assaults by fictitious assailants, as in theinfamous Rolling Stone hoax at the University of Virginia. In the UVA case, evidence suggests that the student “Jackie” so desired to be accepted as a member of the sexual assault “survivor” community on campus that she created the character “Haven Monahan” from whole cloth, and made up a tale about a gang rape that never happened, an imaginative tale perhaps inspired by narratives of previous assaults she had heard about through her involvement in anti-rape activism.
Because “normal human interaction is now being redefined as sexual assault,” as Ashe Schow of the Washington Examiner has explained of the current climate on campus, male students “need to stop viewing sex merely as pleasure or as an expression of affection or love, and begin seeing it as a potentially life-ruining moment.” Stripped of due-process rights in Title IX procedures, so that he has no protection against false accusations, any male who is sexually active on campus exposes himself to destruction, as Schow writes:
The situation has gotten so bad that one parents’ group has begun distributing flyers on California campuses warning students of how easy it is to be accused and expelled.
The reality of it is this: There is little trust anymore between the sexes. Women are being told that men, especially men they believe are their friends, are waiting to get them drunk and rape them. This in turn is leading men to believe that women are going to accuse them of sexual assault for just about any reason, even for consensual sexual encounters.
How did we get here? The origins of feminism’s “rape culture” discourse can be traced back to the Women’s Liberation movement of the late 1960s and ’70s. Treatises like “Rape: The All-American Crime” (Susan Griffin, 1971) and Against Our Will: Men, Women and Rape (Susan Brownmiller, 1975) depicted rape as an exercise of male power that was inherent in, and necessary to, the system of male supremacy. Brownmiller described rapists as “front-line masculine shock troops, terrorist guerrillas” who served to keep women captive and subjugated under a regime of pervasive sexual fear. This feminist concept of rape as an instrument of political power gained currency within a movement that was, at that time, beginning to call into question the legitimacy of heterosexuality. Radical feminists denied that heterosexual behavior was “natural.” There was no biological “urge” or “instinct” involved in the observable patterns of male and female sexual behavior, feminists insisted. Instead, all of this was “socially constructed” by an oppressive male-dominated system that proponents of feminist gender theory now call heteronormative patriarchy. Viewing sexual behavior in this political context of systemic and collective male power, it is impossible for feminists to view any sexual behavior as private or personal. No man or woman is merely an individual in feminist theory, but each is viewed as acting within a system where men (as a collective group) exercisepower to unjustly oppress women (as a collective group).
The most notorious expression of this view was arguably Andrea Dworkin’s 1987 book Intercourse — which condemned heterosexual intercourse as an expression of male “contempt” for women — but if Dworkin was more flamboyantly outspoken than some of her feminist comrades, she was not an isolated “extremist,” as some have claimed. Women’s Studies professors embraced this ideology.
At a 1980 meeting of the National Women’s Studies Association, Michigan State University Professor Marilyn Frye declared her belief “that most women have to be coerced into heterosexuality.” This idea of heterosexuality as “imposed” on women was incorporated into an all-encompassing theoretical analysis in Heterosexuality: A Feminism & Psychology Reader (edited by Sue Wilkinson and Celia Kitzinger, 1993) which cited Dworkin six times (pp. 76, 77, 78, 128, 208, 231-2) and Frye five times (pp. 20, 23, 175, 199, 211). Similarly, in Loving to Survive: Sexual Terror, Men’s Violence and Women’s Lives (Dee L.R. Graham, 1994) we find Dworkin cited nine times (pp. 87, 93, 116, 123, 162, 2000, 206, 275, 276) and Frye also cited nine times (pp. 100, 109, 110, 112, 113, 115, 209, 214, 243). In her book, Dee Graham, a professor of psychology and women’s studies at the University of Cincinnati, described female heterosexuality as resulting from emotional trauma similar to “Stockholm Syndrome.” In Chapter 4 of Loving to Survive, she argues that “women’s fear of male violence” inspires homophobia and is correlated with “support of heterosexism and male-female roles”:
Men’s violence against women encourages women to bond with “kind” men for protection against other men, setting the stage for men’s one-on-one oppression of women (Brownmiller 1975; Dworkin 1983) and the institutionalization of heterosexuality. This violence is mystified as normal under the guise of the masculine sex role. . . .
If love of men arises from terror brought on by male threat to female survival, women have to defend against any feelings that might challenge our love for men. Is this one of the reasons that most women vehemently deny their own lesbian feelings? . . .
Because of the coercive conditions under which heterosexual love arises, it has a regressive quality for women. . . . However, as a survival strategy, heterosexual love may be safer for women in the short run than any other alternative short of collective action (such as that offered by the feminist movement) by women against male violence and tyranny.
This idea of women’s heterosexuality as a pathology, symptomatic of a mental illness or the result of patriarchal indoctrination, is quite commonly accepted in academic feminism. A student in an “Introduction to Feminist Theory” class declares, “every time I walk out of this class I just become more sexually confused!” The student who reported this explains how, being in a university Gender Studies program, “the more I seem to learn, the more I question how the person I am today seems to be merely product of socialization.”
The ‘I-Didn’t-Think-It-Was-Rape’ ProblemIf there is nothing natural about sexual behavior — if biology is irrelevant and “socialization” is all-powerful — then it follows logically that “men’s one-on-one oppression of women” within the “coercive conditions” of heterosexuality, to quote Professor Graham, can be abolished by changing the “gender binary system that presumes heterosexuality as a social norm,” to quote Professors Lee and Shaw. Thus, after a long detour into feminist theory, we return to Jill Filipovic’s “disenchantment with the ‘No means no’ framework.” Filipovic describes how the Internet functioned as a sort of digital “consciousness-raising” session:
The early 2000s birthed the first generation of feminist blogs, and sexual violence was high on the To Blog About list. Blogs quickly developed their own rules of engagement and their own vernacular, with writers adding “trigger warnings” to content about sexual assault, commenters debating the utility of standard sexual-assault prevention tips, and women writing openly, if sometimes pseudonymously, about their own rapes and their I-didn’t-think-it-was-rape rapes and all the other assaults on women’s physical autonomy and right to bodily safety that add up to a bigger thing called “rape culture”.
That most women are raped by someone they know, often in their late teens or early twenties, was not news. Neither was the fact thatmany of them didn’t identify what happened as rape, exactly, since it didn’t fit that stranger-in-the-bushes scenario that so many women are raised to fear. But many women still carried anger and, sometimes, shame or sadness or confusion, and feminist spaces online offered women from many different backgrounds — although disproportionately college-educated and middle- or upper-middle class — the chance to talk about it or, at least, read about it, with a large like-minded audience. That connectivity and the domino “Aha!” moments the conversations sparked — moments of, “Why are we telling young women it’s their responsibility to drink less to avoid getting raped?” and “Why do we think acquaintance rape is some sort of misunderstanding?” and “Why should sexual consent focus on women assenting or refusing, rather than both parties wanting it?” — in such great numbers across so many of the barriers of race and class and age and location, that was new.
What we see Jill Filipovic developing here are two related ideas:
The normal way sex happens, where men are the pursuers whose interest initiates the encounter, with women either rejecting or acquiescing to the male’s advances, is unacceptable from the feminist perspective. Any male effort to persuade a woman to engage in sexual activity is offensive and degrading. Sexual activity should never occur except when the female “enthusiastically” solicits such activity. What is most disturbing to me in this is the way feminists have exploited the “campus rape epidemic” (a phony crisis manufactured by the use of Statistical Voodoo and Elastic Definitions) as an excuse to delegitimize the normal pattern of heterosexual behavior. Jill Filipovic writes:
Instead of the push-pull of sexual pressure and rebuff, feminists largely said sex should be entered into mutually, with both parties enthusiastically consenting. The question shouldn’t be whether a woman said no — and if she failed to appropriately lock her theoretical chastity belt, well, too bad — the question should be whether she wanted sex and therefore said yes to it. Anything less isn’t just crappy sex — it’s a violation. . . .
Today’s college freshmen were just entering adolescence when [the 2007 anthology] Yes Means Yes! was published. The college students of the past several years came of age at a time when feminism was increasingly cool, and had unfettered access tofeminist content online that is significantly more radicaland diverse than just about anything on the internet a decade ago. It’s no surprise that those same young women brought a kind of feminist entitlement to their campuses: the simple belief that sex is something they get to choose to enter into, no matter what.
Unfortunately, as many of those same young women are now learning, that view isn’t as widely held off the feminist internet. The idea of sex as a battle, one party cajoling and the other assenting or rejecting, runs deep in the American psyche, to the point where a whole lot of people have a difficult time imagining a different social model, let alone a legal one.
You can read the whole thing. Filipovic’s suggestion of “a different social model” as the basis for a legal standard where men are deemed guilty of rape if a woman later says did not consent “enthusiastically” raises the question of how such a standard could be enforced. Preventing rape is a laudable goal, but that’s not Filipovic’s goal. Her goal is to make men responsible for women’s post-coital regret.
“Dubious claims about ‘rape culture’ are an attempt to create an all-purpose scapegoat for the emotional dark side of promiscuity,” Robert Tracinski wrote in February 2015:
College campuses have long since been taken over by a culture in which casual sex with acquaintances is considered normal and where slightly outré sexual experimentation is strongly encouraged, all of it spurred on by alcohol, which figures prominently in most of these cases. But it’s clear that some young women are not psychologically prepared for this. They have casual relationships and hookups, but then feel regret and emotional trauma when the experience ends up being emotionally unsatisfying or disturbing. Then they are encouraged, by the feminists and “rape culture” activists, to reinterpret the experience as all the fault of an evil man who must have coerced them.
It’s a system which systematically preys on and exploits the emotional vulnerability of young women in order to use them as publicity fodder for an ideological agenda.
Don’t let your sons or daughters become part of this problem — drunken hookups that turn into “he-said/she-said” dramas — but beware of the “ideological agenda” of feminism. They are moving the goalposts, attempting to redefine sexuality and reorganize society, as part of a radical War Against Human Nature.
By ASHE SCHOW (@ASHESCHOW)
As I wrote in my column yesterday, not all accusations of campus sexual assault are black and white. Yet colleges are treating accusations as if the accused were a potential rapist, even when the accusation involves nothing more than requesting social media connections one too many times.
Kimberly Lau, a lawyer who has defended wrongly accused students in more than 40 cases, released a statement regarding a recent survey purporting to show that one-in-four women will be sexually assaulted while in college.
Lau notes what other critics of the survey, including me, have pointed out: that it relies on an overly broad definition of "sexual assault" in order to inflate its numbers for scary headlines. Lau has specific knowledge of the ways normal interactions, though possibly jerkish, have been elevated to the level of assault, warranting severe punishment.
One of Lau's cases involved a male student who received a deferred suspension, was banned from his graduation and branded a sex offender on his transcript for stealing a kiss and exchanging inappropriate text messages that were later deemed harassment. Another case saw a male student suspended for a year because he sent multiple Instagram follow requests to a female student and once looked at her on campus.
Even if these behaviors were inappropriate, is a one-year suspension justified instead of, say, someone simply telling the kid to stop?
Most college kids who get that kind of warning from an authority figure would be thoroughly frightened enough to stop. But disrupting their life for a year over social media requests and what could have been an errant look?
On today's college campuses, anything deemed offensive can be used as a weapon against college men in accusations of sexual assault and harassment. And colleges, under pressure from the federal government to find students responsible, have created pseudo-court systems that eviscerate due process in order to get those findings.
"Herein lies the problem with campus tribunals determining if a crime of sexual misconduct was committed," Lau said. "[S]tudents can be wrongly accused because the accusation becomes the proof or, simply, because the definitions are too broad and too ambiguous; students can be accused months or even years after the incident; and those wrongly accused are denied due process."
Lau has had some success defending kids from exaggerated or wrongful accusations. Most recently, she helped a student accused of sexual assault (who was suspended for a year and a half) settle with his university. The student was punished despite the accuser admitting to police that she "may have stretched the truth" because she was "pissed off" and wanted "the s--- to be scared out of him." She also lied to police.
As policies continue to expand the definition of sexual assault, more students wrongly accused of terrible crimes will have to sue their universities in order to get their lives back.
By ASHE SCHOW (@ASHESCHOW)
A campus crime report from the University of Miami has found that 1-in-5 reported rapes are "unfounded," a finding similar to that of a recent Harvard University report.
Colleges across the country are releasing campus crime statistics, and it turns out campus sexual assault might not be as rampant as recent "studies" claim. Even worse for advocates of draconian sexual assault policies that eviscerate due process is the notion that a good chunk of the accusations are false.
"Forcible sex offenses on campus went up from four in 2013 to five in 2014, with one case being reported as 'unfounded,'" reported the Miami Hurricane student newspaper. "Four of the five cases were reported in student residencies, where the one 'unfounded' case occurred."
One might notice that literally 1-in-5 reports were "unfounded," meaning there was no basis for the report, as there were only 5 reported rapes in 2014. That's far fewer than at Harvard, which saw 33 reported rapes.
Again, if this statistic is repeated anywhere in the media, proper caveats will be attached, something lacking from reports of studies purporting to show that 1-in-5 women are sexually assaulted in college.
The first caveat is that the 1-in-5 false rape report came from the university's Coral Gables campus, which is the main university campus. There were no reports of forcible rape at the university's Rosentiel School campus, but there were three reports (none of which were determined to be unfounded) at the Miller School of Medicine. Adding in the Miller School numbers (even though it's not the main campus) would lower the percentage of unfounded reports.
The other caveat is that, as with Harvard, this is just one school. Other schools might have higher or lower rates of false or unfounded reports.
Another thing we don't know from these statistics is any details about the reports. We've seen before that some accusations are wrong, stemming from regretted drunken hook-ups, but wouldn't fall into the "unfounded" category because at the very least, some form of sex took place. And in some of those instances, the universities were under pressure to find students responsible, even if the evidence didn't support the finding.
There has so far been radio silence from the mainstream media when it comes to the inconvenient statistics being revealed in these campus reports. Reports of sexual assault are up (slightly), but those numbers don't coincide with the hysterical claims that 1-in-5 women are being sexually assaulted while in college.
Harvard, reports amounted to just 0.15 percent of the student population claiming to experience a rape, and of that, a quarter of the reports were false or unfounded. At Miami, with just 5 reports, only 0.03 percent of students experienced a rape and reported it. And again, a fifth of them were unfounded.
In contrast, there were 133 drug law violations and 277 liquor law violations at Miami in 2014, a steep drop from 2013, but still far, far higher than reports of sexual assault. Yet those issues don't receive anywhere near as much attention, perhaps because they don't include the "war on women" narrative those in the media prefer to report.
An assistant secretary of education thinks she can rewrite rape law by writing a letter.(Photo: Chris Pietsch, The (Eugene, Ore.) Register-Guard via AP)
It appears to many — including me — as if theObama administration is engaged in a war on college men. Using debunked statistics, the president, the vice president and various other political officials have falsely claimed that there’s an epidemic of rape on college campuses, even though campus rape is, in fact, falling, just as off-campus rape is. (And, in fact, rape is less common on campus than off).
And, ever since the Department of Education issued a ”Dear Colleague" letter to universities in 2011, in essence ordering them to adopt new and draconian campus “sexual assault” rules that treat accusations as presumptively true and force the accused — almost always men — to prove their innocence, sometimes even very strong evidence of innocence is ignored.
Spearheading this effort has been Assistant Secretary of Education for Civil Rights Catherine Lhamon, who has characterized the letter as binding on colleges and universities even though it is not a law, was not adopted as a formal or informal rule making after notice and comment under any law, and appears to have very little to do with the federal anti-discrimination law Title IX, which says only that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Title IX was supposed to force colleges to admit women to programs formerly reserved for men. The law says nothing about sexual assault, sexual harassment, or the duty of universities to investigate criminal behavior on their own instead of referring crimes to law enforcement. But through a period of interpretation and reinterpretation, that simple statutory language has produced reams of federal paperwork that, in effect, turn a simple academic non-discrimination rule into a rape law that lacks the due process protections and evidentiary standards of actual rape law.
Now it appears that Congress has noticed. Sen. Lamar Alexander, R-Tenn., crashed a Senate hearing last week to grill Deputy Assistant Secretary of Education Amy McIntosh about past statements by Lhamon that purported to establish the “guidance” letter as binding law. How could this be binding, asked Sen. Alexander, when it’s simply a letter issued without any of the procedures required for administrative rule making?
McIntosh didn’t offer much of an answer, and that’s because there isn’t one. As some, including Ari Cohn, have argued for a while, the Department of Education is acting unlawfully here.
A law, to be binding, must pass both houses of Congress and be presented to the president's desk, where it must either pass into law or be vetoed and then overridden by a two-thirds vote of each house. Because this procedure, which the framers of our Constitution designed in order to make lawmaking difficult, turns out to make it difficult to pass laws, we also allow administrative agencies to issue regulations that are binding as law. But those regulations can be issued only after a draft is published and the public has a chance to comment, via either formal or informal rule making.
A mere letter from a bureaucrat, which is all the “Dear Colleague” letter is, has no binding authority. At most, it suggests that the bureaucrats might be willing to go to court to try to convince a judge that their interpretation of the statute is correct.
So why did colleges roll over? Law blogger Scott Greenfield suggests that it’s because the colleges are also warring against college men: “After all, why should a college risk the loss of its lifeblood (federal money) for the sake of protecting a few guys, particularly when the colleges pretty much agree with Lhamon’s progressive ideals?”
Greenfield notes that once Columbia University was sued by a male student claiming that his Title IX rights were violated because of the university’s response to a false accusation, it changed its mind and decided that Title IX didn’t create much in the way of student rights after all. Greenfield concludes: “Regardless of whether one embraces the policy choice embodied in Lhamon’s ‘Dear Colleague’ letters or not, there is no doubt but that it was imposed without lawful authority and adopted by schools who chose to sacrifice one segment of their student population to appease another segment. This is not the law. This is not what Title IX mandates. And they know it, even if you don’t.”
Greenfield is right. It’s nice that members of Congress are taking notice. But male college students and their parents, as well as alumni and trustees — and those women noticing that there’s a shortage of college-educated men all of a sudden — need to ask why there’s a war on college men, and why colleges, seemingly, are on the other side.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY's Board of Contributors.
In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors. To read more columns like this, go to the Opinion front page.
No Indictment Against Woman In Sex Case
Texan, 31, was charged with assaulting man while he slept
By Christina Hoff Sommers
On January 27, 2010, University of North Dakota officials charged undergraduate Caleb Warner with sexually assaulting a fellow student. He insisted the encounter was consensual, but was found guilty by a campus tribunal and thereupon expelled and banned from campus.
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A few months later, Warner received surprising news. The local police had determined not only that Warner was innocent, but that the alleged victim had deliberately falsified her charges. She was charged with lying to police for filing a false report, and fled the state.
Cases like Warner’s are proliferating. Here is a partial list of young men who have recently filed lawsuits against their schools for what appear to be gross mistreatment in campus sexual assault tribunals: Drew Sterrett—University of Michigan,“John Doe”—Swarthmore, Anthony Villar—Philadelphia University, Peter Yu—Vassar, Andre Henry—Delaware State,Dez Wells--Xavier, and Zackary Hunt—Denison. Presumed guilty is the new legal principle where sex is concerned.
Sexual assault on campus is a genuine problem—but the new rape culture crusade is turning ugly. The list of falsely accused young men subject to kangaroo court justice is growing apace. Students at Boston University demanded that a Robin Thicke concert be cancelled: His hit song Blurred Lines is supposedly a rape anthem. (It includes the words, “I know you want it.”) Professors at Oberlin, University of California, Santa Barbara, and Rutgers have been urged to place “trigger warnings” on class syllabi that include books like the Great Gatsby—too much misogynist violence. This movement is turning our campuses into hostile environments for free expression and due process. And so far, university officials, political leaders, and the White House are siding with the mob.
It appears that we are in the throes of one of those panics where paranoia, censorship, and false accusations flourish—and otherwise sensible people abandon their critical facilities. We are not facing anything as extreme as the Salem Witch Trials or the McCarthy inquisitions. But today’s rape culture movement bears some striking similarities to a panic that gripped daycare centers in the 1980s.
In August 1983, an anguished mother reported to the police that her 2-year old son had been horrifically abused in the McMartin preschool in Manhattan Beach, California. She described a network of underground tunnels where school staff had sodomized her child and forced him to watch animal sacrifices. The mother was mentally disturbed and her story had no basis in reality. But the news media seized on the story, and paranoia about Satanic Cults became a national epidemic. Parents were already on edge: advocacy groups, politicians, and the media had warned that nearly 50,000 children were being abducted by strangers, and 4,000 of them murdered, every year. As news of the McMartin barbarity spread, daycare personnel in schools across the nation found themselves implicated in the crime of satanic-ritual child abuse. A national network of abuse-therapists promptly materialized. Through the use of intimidating interviewing techniques, they egged on children to “remember” terrible abuses in their daycare.
The abuse therapists were joined by an influential group of conspiracy-minded feminists, including Gloria Steinem and Catharine MacKinnon. When a few civil libertarian feminists—Carol Tavris, Wendy Kaminer, Ellen Willis, and Debbie Nathan—tried to blow the whistle on the witch-hunt, they were vilifiedby the conspiracy caucus as backlashers, child abuse apologists, and “obedient ‘daddies’ girls of male editors.”
From the start of the scare in 1983 until its ending in the mid-1990s, untold numbers of children were subject to manipulative therapies and hundreds of innocent adults faced charges of ritual child abuse. Several of the accused would spend years in prison for crimes that never happened. A recent Slate article called it “one of the most damaging moral panics in America’s history,” which only began to abate when skeptical journalists got round to checking facts and asking questions. A 1985 story in the Los Angeles Times informed readers that, according to FBI reports, the number of child kidnappings by strangers in 1984 was 67, not 50,000
Today’s college rape panic is an eerie recapitulation of the daycare abuse panic. Just as the mythical “50,000 abducted children” fueled paranoia about child safety in the 1980s, so today’s hysteria is incited by the constantly repeated, equally fictitious “one-in-five women on campus is a victim of rape”—which even President Obama has embraced.
The one-in-five number is derived from surveys where biasedsamples of respondents are asked an artful combination of straightforward and leading questions, reminiscent of the conclusory interviews behind the daycare agitation. A much-cited CDC study, for example, first tells respondents: “Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault.” Then it asks: “When you were drunk, high, drugged, or passed out and unable to consent, how many people ever had vaginal sex with you.” (Emphasis mine.) The CDC counted all such sexual encounters as rapes.
Reputable studies suggest that approximately one-in-forty college women are victims of rape or sexual assault (assault includes verbal threats as well as unwanted sexual grabbing and fondling). One-in-forty is still too many women. But it hardly constitutes a “rape culture” requiring White House intervention.
Once again, conspiracy feminists are at the forefront of this movement. Just as feminist psychologists persuaded children that they had been abused, so women’s activists have persuaded many young women that what they might have dismissed as a foolish drunken hookup was actually a felony rape. “Believe the children,” said the ritual abuse experts during the day care scare. “Believe the survivors,” say today’s rape culturalists. To not believe an alleged victim is to risk being called a rape apologist.
Some will say that these moral panics, while overblown, do call attention to serious problems. This is deeply mistaken. The hysteria around daycare abuse and campus rape shed no light: rather they confuse and discredit genuine cases of abuse and violence. Molestation and rape are horrific crimes that warrant serious attention and vigorous response. Panics breed chaos and mob justice. They claim innocent victims, undermine social trust, and teach us to doubt the evidence of our own experience.
E.M. Forster said it best in A Passage to India, referring to a panic among “good citizens” following a highly dubious accusation of rape: “Pity, wrath, and heroism filled them, but the power of putting two and two together was annihilated.”
By Emily Yoffe
Sexual assault on campus is a serious problem. But efforts to protect women from a putative epidemic of violence have led to misguided policies that infringe on the civil rights of men.
Drew Sterrett couldn’t know that when his friend slipped into his bottom bunk late one night in March of his freshman year, she was setting off a series of events that would end his college education. It was 2012, and Sterrett was an engineering student at the University of Michigan. The young woman, CB, lived down the hall. A group of students had been hanging out in the dorm on a Friday evening—there was drinking, but no one was incapacitated—when CB told Sterrett that her roommate had family members staying in their room and she needed a place to spend the night. Sterrett loaned her a shirt to sleep in and assumed she’d crash on the mat he and his roommate kept for visitors. Instead, CB came and lay down next to him on his bed. The two had made out in the past but had no serious romantic interest in each other.
They talked quietly, started kissing, and then things escalated, as they often do when two teenagers are in bed together. When it became clear they were going to have intercourse, CB asked Sterrett about a condom, and he retrieved one from a drawer. Their sex became so loud and went on for so long that Sterrett’s roommate, unable to sleep in the upper bunk, sent Sterrett a Facebook message around 3 a.m.: “Dude, you and [CB] are being abnoxtiously [sic] loud and inconsiderate, so expect to pay back in full tomorrow …”
The two finally finished and went to sleep. The next morning, Sterrett says CB told him that she wanted to keep their interlude private. He thought she was embarrassed that she’d had sex with a friend and agreed not to talk to others about it. They saw each other frequently in the dorm until the school year ended.
Sterrett was home in New York for the summer when he was contacted by a university official, Heather Cowan, program manager of the Office of Student Conflict Resolution, and told to make himself available for a Skype interview with her and another administrator. No reason was given.
As the interview got under way, Sterrett realized that CB must have told Cowan something disturbing about their one-time assignation. Becoming concerned about the tenor of the questions, he asked the administrators if he should consult a lawyer. He says they told him that if he ended the interview in order to seek counsel that fact would be reported to the university and the investigation would continue without his input. He kept talking. He told Cowan that he and CB had had a consensual encounter while his roommate was only a few feet away. As the interview was coming to a close, Sterrett says the administrators told him this matter was confidential—though he’d still not been explicitly told what the matter was—and that he should not talk to anyone about it, especially not fellow students who might be witnesses on his behalf.
The University of Michigan.
Courtesy of Jeffrey Smith/Flickr
Later, Sterrett would consult a lawyer and file a lawsuit against the university alleging he’d been deprived of his constitutional right to due process. This account is drawn from the legal filings in that ongoing case. These include Sterrett’s caseagainst the university, affidavits from witnesses sworn on Sterrett’s behalf, the university’s response, and a deposition of CB taken by Sterrett’s lawyer. (Through his lawyer, Sterrett declined to speak to me. A Michigan spokesman said the university cannot comment on a pending case. CB has remained anonymous in court filings. I contacted her lawyer, Joshua Sheffer, who sent the following statement: “While we strongly disagree with Plaintiff’s description of the night in question, we do not feel that it should be played out in the press.” It continued: “This lawsuit is between Plaintiff and the University of Michigan; my client wishes only to put this traumatic event behind her and move forward with her education and life.”)
Cowan told Sterrett over Skype that there would be restrictions placed on him when he returned to campus for his sophomore year. Sterrett and CB were part of a special program called the Michigan Research Community, and members lived together in a residence hall. Although Sterrett and CB had continued to live on the same floor until the end of the school year, and she hadn’t complained about his presence, Cowan told Sterrett that he would be removed from the dorm. He was also told that he could not be in the vicinity of CB, which meant he was in effect barred from entering the dorm, cutting him off from most of his friends.
The events that prompted the university to take these actions against Sterrett are detailed in an affidavit sworn on Sterrett’s behalf by LC, a friend of CB’s and her sophomore year roommate. LC stated that in July she received a call from an “emotionally upset” CB who explained that her mother had found her diary. LC recalled that CB explained that the diary “contained descriptions of romantic and sexual experiences, drug use, and drinking.” (CB confirmed the contents of the diary in her own deposition.) During the phone call, CB asked LC if she remembered the night CB had sex with Sterrett. LC didn’t, because CB had never mentioned it. Now CB told her, “I said no, no, and then I gave in.” Eventually, as described in CB’s deposition, CB’s mother called the university to report that CB would be making a complaint against Sterrett. CB’s mother drove her to campus, and CB met with Heather Cowan.
2 An Overcorrection
We are told that one of the most dangerous places for a young woman in America today is a college campus. As President Obama said at a White House event in September, where he announced a campaign to address campus violence, “An estimated one in five women has been sexually assaulted during her college years—one in five.” (At an earlier White House event on the issue, the president declared of sexual violence, “It threatens our families, it threatens our communities; ultimately, it threatens the entire country.”) In recent weeks, Rolling Stone’s lurid account of a premeditated gang rape at the University of Virginia has made the issue of campus sexual violence front-page news. (The reporting and the allegations in the article have since been called into question, and Rolling Stone has issued a statement acknowledging that the magazine failed to properly investigate and corroborate the story.)
Sexual assault at colleges and universities is indeed a serious problem. The attention it’s receiving today—on campus, at the White House, in the media—is a direct result of the often callous and dismissive treatment of victims. For too long, women who were assaulted on campus and came forward were doubted or dismissed, and the men responsible were given a mild rebuke or none at all. Those who commit serious sexual crimes on campus must be held to account.
Colleges, encouraged by federal officials, are instituting solutions to sexual violence against women that abrogate the civil rights of men.
In recent years, young activists, many of them women angry about their treatment after reporting an assault, have created new organizations and networks in an effort to reform the way colleges handle sexual violence. They recognized they had a powerful weapon in that fight: Title IX, the federal law that protects against discrimination in education. Schools are legally requiredby that law to address sexual harassment and violence on campus, and these activists filed complaints with the federal government about what they describe as lax enforcement by schools. The current administration has taken up the cause—the Chronicle of Higher Education describes it as “a marquee issue for the Obama administration”—and praised these young women for spurring political action. “A new generation of student activists is effectively pressing for change,” read a statement this spring announcing new policies to address campus violence. The Department of Education has drafted new rules to address women’s safety, some of which have been enshrined into law by Congress, with more legislation likely on the way.
Unfortunately, under the worthy mandate of protecting victims of sexual assault, procedures are being put in place at colleges that presume the guilt of the accused. Colleges, encouraged by federal officials, are instituting solutions to sexual violence against women that abrogate the civil rights of men.
Schools that hold hearings to adjudicate claims of sexual misconduct allow the accuser and the accused to be accompanied by legal counsel. But as Judith Shulevitz noted in the New Republic in October, many schools ban lawyers from speaking to their clients (only notes can be passed). During these proceedings, the two parties are not supposed to question or cross examine each other, a prohibition recommended by the federal government in order to protect the accuser. And by federal requirement, students can be found guilty under the lowest standard of proof: preponderance of the evidence, meaning just a 51 percent certainty is all that’s needed for a finding that can permanently alter the life of the accused.
More than two dozen Harvard Law School professors recently wrote a statement protesting the university’s new rules for handling sexual assault claims. “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process,” they wrote. The professors note that the new rules call for a Title IX compliance officer who will be in charge of “investigation, prosecution, fact-finding, and appellate review.” Under the new system, there will be no hearing for the accused, and thus no opportunity to question witnesses and mount a defense. Harvard University, the professors wrote, is “jettisoning balance and fairness in the rush to appease certain federal administrative officials.” But to push back against Department of Education edicts means potentially putting a school’s federal funding in jeopardy, and no college, not even Harvard, the country’s richest, is willing to do that.
Hard-line policies like Harvard’s are necessary, government officials say, because undergraduate women are in unique peril. Often-cited studies of sexual violence at colleges describe an epidemic. But each of these studies has serious methodological limitations. In some cases, the studies make sensational assertions that are not supported by the underlying data. In others, the experiences of one or two campuses have been made to stand in for the entirety of America’s higher education system.
Sen. Kirsten Gillibrand, D–New York, is a co-sponsor of the bipartisan Campus Accountability and Safety Act, or CASA, expected to be voted on next year. The legislation would, among other things, require all colleges provide a confidential adviser to guide victims through the entire process of bringing an accusation while no guidance or assistance is mandated for the accused. Gillibrand said in announcing the legislation, “We should never accept the fact that women are at a greater risk of sexual assault as soon as they step onto a college campus. But today they are.”
This is one of the frequently made assertions about campus violence, but the evidence to back it up is lacking. Being young does make people more vulnerable to serious violent crime, including sexual assault; according to government statistics those aged 18 to 24 have the highest rates of such victimization. But most studies don’t compare the victimization rates of students to nonstudents of the same age. One recent paper that does make that comparison, “Violence Against College Women” by Callie Marie Rennison and Lynn Addington, compares the crime experienced by college students and their peers who are not in college, using data from the National Crime Victimization Survey. What the researchers found was the opposite of what Gillibrand says about the dangers of campuses: “Non-student females are victims of violence at rates 1.7 times greater than are college females,” the authors wrote, and this greater victimization holds true for sex crimes: “Even if the definition of violence were limited to sexual assaults, these crimes are more pervasive for young adult women who are not in college.”
Rennison, an associate professor at the School of Public Affairs at the University of Colorado Denver, recognized in an interview that her study goes against a lot of received wisdom. “Maybe that’s not a really popular thing to say,” she said, adding, “I hate the notion that people think sending kids off to college is sending them to be victimized.”
Any woman who is raped, on campus or off, deserves a fair and thorough investigation of her claim, and those found guilty should be punished. But the new rules—rules often put in place hastily and in response to the idea of a rape epidemic on campus—have left some young men saying they are the ones who have been victimized. They are starting to push back. In the past three years, men found responsible for sexual assault on campus have filed more than three dozen cases against schools. They argue that their due process rights have been violated and say they have been victims of gender discrimination under Title IX. Their complaints are starting to cost universities. The higher education insurance groupUnited Educators did a study of the 262 insurance claims it paid to students between 2006 and 2010 because of campus sexual assault, at a cost to the group of $36 million. The vast majority of the payouts, 72 percent, went to the accused—young men who protested their treatment by universities.
Assertions of injustice by young men are infuriating to some. Caroline Heldman, an associate professor of politics at Occidental College and co-founder of End Rape on Campus, said of the men who are turning to the courts, “These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape.” Sen. Claire McCaskill, D-Missouri, a co-sponsor of the CASA bill, said to the Washington Post of these suits, “I don’t think we are anywhere near a tipping point where the people accused of this are somehow being treated unfairly.”
I’ve read through the court filings and investigative reports of a number of these cases, and it’s clear to me that many of the accused are indeed being treated unfairly. Government officials and campus administrators are attempting to legislate the bedroom behavior of students with rules and requirements that would be comic if their effects weren’t frequently so tragic. The legal filings in the cases brought by young men accused of sexual violence often begin like a script for a college sex farce but end with the protagonist finding himself in a Soviet-style show trial. Or, as in the case of Drew Sterrett, punished with no trial at all.
3 The Punishment
At the beginning of his sophomore year, Drew Sterrett was in limbo. He did not know whether he would face further disciplinary action as a result of the accusation against him, and indeed no formal written charge was ever issued. The single, cryptic Skype interrogation—the one that blindsided Sterrett over his summer vacation—was to be his sole hearing with campus administrators. He never met them in person. Sterrett’s suit against the university accuses it of violating his constitutional right to due process. But as he waited out the fall, often there didn’t seem to be any process.
Through September and October, he heard nothing further about the charge. Unbeknownst to him, CB was having second thoughts, as she explained in a deposition taken as a result of Sterrett’s case against the university, because she wasn’t sure she wanted Sterrett to be able to read her statement against him. The only word he received from school administrators during this period was a warning email from Cowan, in October. One day Sterrett was walking with a friend who was putting his bike away at Sterrett’s old dorm. CB saw him near her residence and contacted Cowan, who informed Sterrett that the visit gave an appearance of “retaliatory contact.” He replied to Cowan and said it was troubling that his mere presence near a residence hall was considered an act of impropriety and asked that the investigation be finished “as quickly and compassionately as possible for everyone involved.”
On Nov. 9, 2012, Sterrett was given a one-page document titled “Summary of Witness Testimony and Review of Other Evidence.” It consisted primarily of summaries of statements from anonymous witnesses. For example, it stated: “Two witnesses stated the Complainant reported to them that she tried to push the Respondent off her.” (CB didn’t know who these two witnesses were. She confirmed in her deposition that in her original statement to Cowan, she never said that she had tried to push Sterrett off her.) It also stated: “[A] witness reported that the Respondent told them that he engaged in penetration with the Complainant and ‘she was saying ‘no,’ and that it was just—it was ‘just like a second,’ and then he stopped, and then the Complainant left.’ ” (In her deposition, CB acknowledged this was not how their sexual encounter transpired, although she maintained that at some point she said “no.”)
The document made clear to Sterrett that CB was claiming that she had said “no” during their encounter. He put together a lengthy rebuttal. Of CB’s claim, he wrote, “I cannot state it more clearly that this is untrue. I asked her if she wanted to have sex; she said ‘yes.’ ” (CB’s assertion was also challenged later by an affidavit sworn on Sterrett’s behalf by his freshman year roommate, the one in the upper bunk. The roommate said that he saw CB get into Sterrett’s bed of her own volition and that his bed and Sterrett’s were so close that he would have heard if she had exclaimed, “no” or “stop.” He stated that he was annoyed that their sex was keeping him awake and that as a friend of both he would have intervened if he felt something untoward was happening.)
Courtesy of Slava/Flickr
Sterrett’s rebuttal also noted that Cowan’s document failed to mention the role CB’s mother played in bringing the accusation against him after she found her daughter’s diary. CB’s roommate, LC, in an affidavit sworn on behalf of Sterrett, said that over the summer CB’s mother had called her repeatedly warning her not to talk to Sterrett and to take CB’s side in all proceedings. LC stated that she never saw any change in CB’s behavior from the time of the alleged assault until the end of freshman year. But, she said, CB’s personality changed dramatically after her mother found her diary and the fall semester began. In her affidavit, LC said it pained her to speak against her friend, but she stated: “It is my belief, based on my personal observations and conversations with CB, that it is possible CB manufactured a story about a sexual assault in response to the conflict CB described occurring between her and her mother in the summer of 2012.”
On Nov. 30, Sterrett received Cowan’s final “Sexual Misconduct Investigation Report.” His lawsuit states that the final report failed to take note of anything he had written in his rebuttal. The final report was longer than Cowan’s previous one, and included further allegations that either CB herself did not corroborate or appeared unsupported by the available evidence. For example, it stated: “The Complainant framed the events in question as a sexual assault to witnesses the day following the event.” In her deposition, CB acknowledged that she didn’t do that, that in fact she’d never used the words “sexual assault” to describe what happened. The report said that Sterrett’s roommate was asleep during the entire sexual encounter. This was contradicted by the time-stamped Facebook message complaining that he was being kept awake.
The report also said that Sterrett had confessed to his roommate that he’d had a nonconsensual encounter with CB. When Cowan interviewed the roommate—who says she never told him the purpose of her investigation—he had mentioned that Sterrett said he regretted the encounter with CB. In Cowan’s report, that statement is described as a confession of sexual violation. But as the roommate clarified in his affidavit, Sterrett was not expressing “that he had done anything morally or legally or ethically wrong.” He was expressing regret for sleeping with someone in their group of friends.
The final report came to this conclusion: “[I]t is determined that the Respondent engaged in sexual intercourse with the Complainant without her consent and that that activity is so severe as to create a hostile environment.” His punishment was that he was suspended from college until July 2016—after CB graduated. In order for the university to consider reinstating him, he would have to agree that he had engaged in sexual misconduct. Whether or not he returned, the finding would stay on his permanent record. Sterrett’s lawsuit says a university official acknowledged to him that these sanctions would “limit his educational, employment and career opportunities.”
“He had no idea he was on his way out no matter what he said or what the facts were.”
Deborah L. Gordon, Drew Sterrett’s lawyer
With the help of a lawyer, Sterrett filed an appeal to the Office of Student Conflict Resolution. He included affidavits from classmates who said their words had been misconstrued and even falsified, and included the statement by Sterrett’s roommate that CB was a willing participant and that the roommate would have heard and intervened if CB had said no. The university’s response was to stand by its finding that Sterrett was responsible for sexual misconduct but to change the reason. Now Cowan issued an addendum stating that Sterrett had committed sexual misconduct because CB was too drunk to consent. (In her deposition, CB acknowledged that while she had been drinking, she was not incapacitated.)
Upholding the finding that he committed sexual misconduct required Sterrett to leave the university. But he had already decided not to return to school after winter break of his sophomore year. His lawyer explained in an email that Sterrett felt the restrictions put on his movements in order to avoid running into CB—he could be expelled if she saw him and felt his presence was “retaliatory”—made it impossible for him to be at school. Sterrett filed another appeal, this one to Michigan’s university Appeals Board. In July 2013, it upheld the sexual misconduct finding, though it agreed to place Sterrett on disciplinary probation instead of suspension. The probation, however, came with onerous conditions, according to his lawyer: He would now be barred from any university housing and was prohibited from enrolling in any class in which CB was enrolled (and thus prohibited from registering and enrolling in classes until CB had finalized her schedule). He declined to return.
The University of Michigan.Courtesy of Jessica Pittenger/Flickr
In April of this year, Sterrett filed suit against the university. The suit states that the public university violated his 14th Amendment rights of due process and that Michigan contravened its own procedures for disciplinary hearings, which call for written notice of allegations against a student, sufficient time to prepare for an arbitration or other meeting (Sterrett says there was no arbitration or meeting), knowledge of the names of witnesses, the opportunity to pose questions to the complainant or other witnesses, and more. As a result of these violations, his suit says, he was subjected to a process that was “capricious, reckless, incomplete, [and] lacked fundamental fairness.”
Michigan has asked the United States District Court for the Eastern District of Michigan to dismiss Sterrett’s suit. Its motion to dismiss outlines the university’s version of events. Michigan asserts Sterrett was given fair notice of the charges against him, citing the fact that Sterrett’s own suit stated that he “gleaned” that he was being accused of sexual assault from his Skype interrogation. The motion states that Sterrett was given several opportunities to file his rebuttals and appeals, concluding, “That’s not lack of due process. It’s abundant process.” It also noted that Sterrett decided to file a lawsuit rather than returning to the university under the sanctions and restrictions it offered. The statement issued by CB’s lawyer noted, “The University of Michigan thoroughly investigated the matter. Plaintiff and my client each had an opportunity to present evidence. Plaintiff was found responsible; he appealed that decision, and it was upheld.”
I spoke to Sterrett’s lawyer, Deborah L. Gordon. She said that like many similarly accused young men, Sterrett believed that once a responsible investigation was undertaken, everything would be straightened out. “He had no idea he was on his way out no matter what he said or what the facts were,” she said. She hopes to get the case to a jury, but she says the university is making every legal effort to delay. Sterrett should be graduating from college next spring, but the sexual misconduct charge against him has made it virtually impossible for him to be accepted as a transfer student elsewhere. He was accepted to one well-regarded university, but the offer was rescinded when the school heard of his disciplinary finding at Michigan. Now 22, he’s hoping that if his suit is successful, he will be able to finish his education—some day.
4 The Numbers
One campus rape is one too many. But the severe new policies championed by the White House, the Department of Education, and members of Congress are responding to the idea that colleges are in the grips of an epidemic—and the studies suggesting this epidemic don’t hold up to scrutiny. Bad policy is being made on the back of problematic research, and will continue to be unless we bring some healthy skepticism to the hard work of putting a number on the prevalence of campus rape.
It is exceedingly difficult to get a numerical handle on a crime that is usually committed in private and the victims of which—all the studies agree—frequently decline to report. A further complication is that because researchers are asking about intimate subjects, there is no consensus on the best way to phrase sensitive questions in order to get the most accurate answers. A 2008 National Institute of Justice paper on campus sexual assault explained some of the challenges: “Unfortunately, researchers have been unable to determine the precise incidence of sexual assault on American campuses because the incidence found depends on how the questions are worded and the context of the survey.” Take the National Crime Victimization Survey, the nationally representative sample conducted by the federal government to find rates of reported and unreported crime. For the years 1995 to 2011, as the University of Colorado Denver’s Rennison explained to me, it found that an estimated 0.8 percent of noncollege females age 18-24 revealed that they were victims of threatened, attempted, or completed rape/sexual assault. Of the college females that age during that same time period, approximately 0.6 percent reported they experienced such attempted or completed crime.
That finding diverges wildly from the notion that one in five women college women will be sexually assaulted by the time they graduate. That’s the number most often used to suggest there is overwhelming sexual violence on America’s college campuses. It comes from a 2007 study funded by the National Institute of Justice, called the Campus Sexual Assault Study, or CSA. (I cited it last year in a story on campus drinking and sexual assault.) The study asked 5,466 female college students at two public universities, one in the Midwest and one in the South, to answer an online survey about their experiences with sexual assault. The survey defined sexual assault as everything from nonconsensual sexual intercourse to such unwanted activities as “forced kissing,” “fondling,” and “rubbing up against you in a sexual way, even if it is over your clothes.”
Courtesy of Maria Casacalenda/Flickr
There are approximately 12 million female college students in the U.S. (There are about 9 million males.) I asked the lead author of the study, Christopher Krebs, whether the CSA represents the experience of those millions of female students. His answer was unequivocal: “We don’t think one in five is a nationally representative statistic.” It couldn’t be, he said, because his team sampled only two schools. “In no way does that make our results nationally representative,” Krebs said. And yet President Obama used this number to make the case for his sweeping changes in national policy.
The one-in-four assertion would mean that young American college women are raped at a rate similar to women in Congo, where rape has been used as a weapon of war.
The Sexual Victimization of College Women, a 2000 study commissioned by the U.S. Department of Justice, is the basis for another widely cited statistic, even grimmer than the finding of CSA: that one in four college women will be raped. (An activist organization, One in Four, takes its name from the finding.) The study itself, however, found a completed rape rate among its respondents of 1.7 percent. How does a study that finds less than 2 percent of college women in a given year are raped become a 25 percent likelihood? In addition to the 1.7 percent of victims of completed rape, the survey found that another 1.1 percent experienced attempted rape. As the authors wrote, “[O]ne might conclude that the risk of rape victimization for college women is not high; ‘only’ about 1 in 36 college women (2.8 percent) experience a completed rape or attempted rape in an academic year.”
But the authors go on to make several assumptions that ratchet up the risk. The study was carried out during the spring and asked women to describe any assaults experienced during that academic year. The researchers decided to double the numbers they received from their subjects, in order to extrapolate their findings over an entire calendar year, even as they acknowledged that this was “problematic,” as students rarely attend school for 12 months. That calculation brought the incidence figure to nearly 5 percent. Although college is designed to be a four-year experience, the authors note that it takes students “an average” of five years, so they then multiplied their newly-arrived-at 5 percent of student victims by five years, and thus they conclude: “The percentage of completed or attempted rape victimization among women in higher educational institutions might climb to between one-fifth and one-quarter.”
In a footnote, the authors acknowledge that asserting that one-quarter of college students “might” be raped is not based on actual evidence: “These projections are suggestive. To assess accurately the victimization risk for women throughout a college career, longitudinal research following a cohort of female students across time is needed.” The one-fifth to one-quarter assertion would mean that young American college women are raped at a rate similar to women in Congo, where rape has been used as a weapon of war.
No one disputes that only a percentage of sexual assaults get reported, but the studies that have tried to capture the incidence of unreported rape are miles apart. As Christopher Krebs observed, “Some [surveys] I think create high numbers that are difficult to defend. Some create artificially low numbers that are impossible to defend.” We do have hard numbers on actual reports of sexual assault on campus thanks to the Clery Act, the federal law that requires colleges to report their crime rates. But even these figures are controversial. Minuscule sexual assault numbers have long been a consistent feature of Clery Act reporting. Victim advocates say administrators deliberately suppress their numbers in order to make the schools look safer. (Unsurprisingly, schools deny this.) In July, the Washington Post published the Clery number for 2012: There were just over 3,900 forcible sexual offenses, with most schools reporting single or low double-digit numbers. (Under the Clery Act a “forcible sexual offense” does not require the use ofactual physical force, it can simply be an act against someone’s will. Offenses include everything fromrape to fondling.) Given the approximately 12 million female college students, that’s a reported sexual assault rate of 0.03 percent.
Reported sexual assaults have been rising on campus in recent years, at a time when other campus crime is declining. (The nation as a whole has experienced a dramatic drop in all violent crime over the past few decades, including sexual assault, which is down more than 60 percent since 1995.) The rise of reporting on campus sexual assault is generally described by security experts as a function of a greater willingness on the part of women to make complaints, not an increase in incidence. Despite reports of “soaring” sexual assault rates on campus, the raw numbers remain low. At the University of Chicago, the jump from 2011 to 2013 was 83 percent: an increase from six reports to 11, which represents 0.4 percent of the university’s undergraduate women. Carnegie Mellon went up 220 percent, from five cases to 16, or 0.6 percent of the university’s undergraduate women. President Obama has asserted that only about 12 percent of sexual assault victims make a report to authorities. If he is correct, and we extrapolate from the Clery numbers, that would suggest there were 32,500 assaults in 2012, reported and not, or a 0.27 percent incidence.
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A widely held belief about a college man accused of sexual assault is that he is likely a serial predator. This is a result of the work of David Lisak, one of the most influential experts on sexual assault in the country. “College presidents don’t like to hear this, but these are sex offenders,” Lisak said at an event at Harvard in 2013. “Every report should be viewed and treated as an opportunity to identify a serial rapist.”
Lisak retired not long ago after more than two decades of teaching psychology at the University of Massachusetts Boston. He remains a consultant to universities, the military, and other institutions on sexual assault. His 2002 paper, “Repeat Rape and Multiple Offending Among Undetected Rapists,” is a foundational study in the movement to curb campus sexual assault. It’s cited endlessly, by everyone from President Obama, to college faculty members, to student activists. It’s even cited by critics of the new campus sexual assault policies.
Lisak told me that he meets understandable resistance when delivering his message to college administrators. “It’s hard to think of any of your students as a sex offender,” he said. “But the data are pretty clear. They’re not a large group. It’s a fairly small percentage, but their behavior is really consistent with everything we know about sex offenders.”
Courtesy of Caitee Smith/Flickr
In a 2011 article in Sexual Assault Report, Lisak disparaged “the widely-held view that sexual assaults committed on university campuses are typically the result of a basically ‘decent’ young man who, were it not for too much alcohol and too little communication, would never do such a thing.” (He concedes that “some campus sexual assaults do fit this more benign view.”) Instead, he asserts that the vast majority of sexual assaults on campus, more than 90 percent of them, are perpetrated by serial offenders. His work, he says, shows that these offenders are relentless, averaging six rape victims each. “They’ve perfected ways of identifying who on campus, for example, are most vulnerable.” In the 2011 article, he wrote that these “predators” were “serial and multi-faceted offenders” who “plan and premeditate their attacks” and that various prevention education programs are unlikely to be effective because “it is extremely difficult to change the behavior of a serial predator even when you incarcerate him and subject him to an intensive, multi-year treatment program.”
For the 2002 study, Lisak found 120 men, or 6.4 percent of respondents, “met criteria for rape or attempted rape,” with 80 percent of that group admitting that they took advantage of an unwilling partner’s intoxication. Of the 120, about one-third said they’d committed a single rape, and 76 men, or 63 percent, admitted to multiple offenses. Lisak calculated an average of 5.8 rapes each for these repeat offenders.
Based on these findings, Lisak says it’s likely that any young man who is accused of sexual misconduct on campus is a serial predator. He told me he arrived at this conclusion by calculating the number of rapes the self-admitted serial attackers said they perpetrated. Those rapes represented 90 percent of the total acknowledged rapes in his study.
The 2002 study is now frequently used to portray college students, some still teenagers, as among society’s most ruthless and sadistic predators. And yet the limitations of the study are such that it cannot fairly be said to describe the behavior of the majority of young men who find themselves accused. To start, though the study was of college men, it was not of college-age men (who are traditionally ages 18 to 24). Lisak’s participants ranged in age from 18 to 71. The average age of his respondents was 26.5, and and more than 20 percent were older than 30. How does a study of men in college include so many older men? Lisak recruited people from where he taught, the University of Massachusetts Boston, an urban commuter school with no campus housing. Many students are older working people returning to or just starting college. Currently, 30 percent of its students attend part time and the school’s four-year graduation rate is 15 percent. By comparison, at the state’s flagship university in Amherst, seven percent of students are enrolled part time and its four-year graduation rate is 60 percent.
I spoke with James J. Cochran, professor of applied statistics at the University of Alabama. He said that because the population of male students at UMass Boston may differ in important ways from the population of male college students across all universities, we must be careful in generalizing results from the UMass Boston sample to the population of male college students across all universities.* People tend to think that a single study is definitive, Cochran told me. But generally what a single study tells you, he said, is that “we evidence of something interesting, let’s study it more.” (The Campus Sexual Assault Study also attempted to identify male perpetrators. Lead author Christopher Krebs said a “shockingly low” number of college-age men in his study acknowledged committing sexual assault. The researchers surveyed 1,375 male students and 34, or 2.5 percent, “reported perpetrating any type of sexual assault,” the majority involving incapacitation.)
Courtesy of Ingram Publishing/Thinkstock
Lisak conducted the study between 1991 to 1998, at several year intervals, setting up tables on campus, where he offered men $3 or $4 to complete a study on “childhood experiences and adult functioning.” In all, Lisak and his co-author recruited 1,882 participants (the school had a total of about 5,800 male students during this period). Lisak and his co-author wrote: “Because of the non-random nature of the sampling procedures, the reported data cannot be interpreted as estimates of the prevalence of sexual and other acts of violence.” I asked Lisak about this caveat in an interview and he said, “That’s a standard disclaimer for any study.” But he also acknowledged that the only way to find out if his population differed from the usual typical student population would be to replicate his study at a more traditional campus.
Lisak deserves credit for identifying a type of stealthy predator who evades law enforcement. Such men exist, are dangerous, and should be prosecuted for their crimes. But describing such people does not mean that they constitute the entire universe of college men who find themselves accused of sexual misconduct. That, however, is how his work and his public comments are frequently used. Here’s Yale Law professor Jed Rubenfeld, writing last month on campus sexual assault in the New York Times: “Research suggests that more than 90 percent of campus rapes are committed by a relatively small percentage of college men—possibly as few as 4 percent—who rape repeatedly, averaging six victims each.”
Lisak told me he continues to dispute the view, held by some college administrators, that the majority of campus sexual assault disputes are the result of drunken miscommunication. I asked Lisak what percentage of reported sexual misconduct is of this less predatory type. “There’s no way I can answer,” he said. “Not that it never occurs; it does. I think a lot of college administrators think that is the norm. That’s what I really dispute.”
I asked Lisak whether it was fair to presume any given accused student is a serial predator. He said such a supposition would be “sloppy thinking.” He went on: “You have to investigate the assault and who the individual is. Everything hinges on the investigation.” He also said that a major problem with adjudicating campus sexual assault is how ill equipped universities are to conduct such investigations.
* * *
The potential for misuse of Lisak’s study can be seen in the 2013 case of the Occidental College student “John Doe,” who brought a suit against the school after he was expelled for a sexual encounter with “Jane Doe,” in September of his freshman year. The Los Angeles Times summed up the events: “The college’s investigative report, performed by an outside firm, said both parties agreed on the following facts: Both had been drinking, she went to his room, took off her shirt while dancing, made out with him and returned to his room later for sex, asking if he had a condom. When friends stopped by the room to ask if she was OK, she told them yes.” Prior to their encounter, the two exchanged texts about their planned assignation, and Jane texted another friend to announce she was going to have sex. Later, when Jane came to see the incident as rape, she reported it to the Los Angeles Police Department. A female LAPD officer investigated, and a female deputy district attorney declined to pursue the case. She wrote, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment.” Her report further found that Jane was capable of resisting and that John had reasonably concluded that her communications and actions conveyed consent.
Courtesy of Andrew Ratto/Flickr
But Jane ended up being convinced that John fit the pattern of the kind of serial predator Lisak describes. John had the misfortune of being accused of sexual misconduct following the filing, by attorney Gloria Allred, of a Title IX violation complaint against the school, charging lax punishment for serial offenders. And Jane ended up being counseled by assistant professor of sociology Danielle Dirks, a prime mover behind the Title IX filing and a nationally prominent activist on campus sexual assault.
Jane lost her virginity that night, and when she sobered up and realized what happened, in distress she went to a faculty adviser who referred her to Dirks. An 82-page investigative report prepared for the school by the firm Public Interest Investigations shows it was Dirks, in her first phone conversation with Jane, who introduced Jane to the idea that she had been raped. Jane told the professor, “Oh, I am not calling it rape yet.” Over many hours of conversation, Dirks helped move Jane from what the professor described as Jane’s “strong state of denial” about what happened.
The report notes that Jane “stated that she has learned that 90 percent of rapes are done by repeat offenders.” (John was a freshman, on campus for a few weeks, with no complaints against him.) Jane told Dirks that John had expressed regret that she lost her virginity that way—he hadn’t known she was a virgin—and when she was absent from a class they took together, he texted to make sure she was all right. The professor had a skeptical view of his behavior. All this was “disingenuous,” said Dirks, according to the report: It was typical of rapists who, she said, try to control, dominate, manage, and manipulate. Strikingly, it was Dirks herself who initiated proceedings to get John removed from campus, explaining, “I know how jarring it is for me to see him on campus, so how is it for Jane?” (An Occidental spokesman said he could not comment on a pending lawsuit. Dirks said in an email that the report “contains factual errors regarding my involvement in the case.” However, beyond disputing a statement attributed to her by Jane and not quoted here, she declined to elaborate on what the errors are.)
Occidental College.Courtesy of Jeffrey Beall/Flickr
Occidental hired an outside attorney to review the investigative report and make a recommendation about John. Here’s the conclusion of the attorney, as reported by the Los Angeles Times: “The attorney, Marilou F. Mirkovich, found that the young man did not know that his classmate was too drunk to consent because he, too, was inebriated. But, citing the college's policy that does not allow alcohol or drug consumption to excuse sexual misconduct, Mirkovich found that he should have known and was responsible for the assault.” After only a few months as a college student, John was expelled. He told theLos Angeles Times the whole experience has been “soul-crushing.” John has since been unable to enroll in another college.
5 The Federal Government Steps Up
Much of what’s happening on campuses today regarding the handling of sexual assault is due to the rise of a small, once-obscure arm of the federal government. The Department of Education’s Office for Civil Rights dictates to colleges the procedures they must follow in regard to campus sexual complaints.* It also examines schools for violations of Title IX, the law that forbids discrimination in education on the basis of sex. In recent years, OCR has used Title IX, best known for tackling imbalances in athletics, as a tool to address sexual violence. When OCR issues findings against a school, if the school declines to admit wrongdoing, the office has the power, as yet unexercised, to essentially shut the school down.
In 2011, OCR released what’s come to be known as the “Dear Colleague” letter. It called for new procedures to be put in place for handling sexual assault allegations at colleges and universities receiving federal funds (virtually all of them). The federal office had to act, it said, because “the likelihood that [female students] will be assaulted by the time they graduate is significant.” It asserted the process should be equitable and impartial. But it laid out procedures that privilege the rights of victims over those of the accused. It recommended schools provide “comprehensive, holistic victim services including medical, counseling and academic support services, such as tutoring” for the accuser, without describing any services that should be available to help the accused navigate a pervasively adversarial process. If a school allowed the accused to appeal a verdict of responsibility for sexual misconduct, then an accuseralso got to appeal if the accused was found not responsible. This provision meant someone accused of a campus sexual assault could find himself sitting through a second tribunal on the same charge.
Among the most significant changes described by the Dear Colleague letter was the requirement that schools lower the standard by which they judge whether a student is responsible for sexual assault. (There is no uniform definition of sexual assault on campus. Because these are civil, not criminal proceedings, what constitutes sexual misconduct can vary widely from campus to campus.) Colleges were told to adopt a “preponderance of evidence” standard when evaluating whether a student was to be found responsible for an allegation. This is the lowest evidentiary standard, only requiring a smidge more than 50 percent certainty. Because the punishment for such infractions can be severe—from suspension to expulsion—many schools had previously used the “clear and convincing evidence” standard, a significantly higher burden of proof, though still below the “beyond a reasonable doubt” standard used in criminal proceedings. (The University of Michigan, in its legal motion to dismiss Drew Sterrett’s case, specifically noted the findings against Sterrett met the preponderance of evidence standard.)
Legal protections granted students at public and private institutions are somewhat different. A public university, as a government entity, must provide certain due process rights. Students at private schools do not have this protection, but they do have contractual rights, and virtually all students are covered by Title IX. To head off concerns about significantly lowering evidentiary standards, the OCR asserted that because a campus tribunal’s worst punishment is expulsion, not imprisonment, “the same procedural protections and legal standards are not required” as in a criminal case.
“Not Alone,” billed as “The First Report of the White House Task Force to Protect Students From Sexual Assault,” was released to great fanfare at the White House in April, and it outlined how OCR would help implement the report’s stated goals. Not Alone encouraged schools to consider adopting a “single-investigator” model—as Harvard has done—in which a sole administrator is tasked with being investigator, prosecutor, judge, and jury in sexual assault cases. Since that person would work at the school’s Title IX office, which is tasked with keeping the school off the list of those being scrutinized by the federal government, impartiality may not be that person’s first imperative.
Tufts University.Courtesy of Knar Bedian/Flickr
Being investigated by OCR for a Title IX violation places a college on a growing federal list of shame, now 88 schools long. Even more disastrous is standing up to OCR. The agency has the power to pull a school’s federal funding, essentially putting a school out of business—ask Tufts University if they’re willing to use it. A female Tufts student had accused a former boyfriend of rape, and after he was cleared (and the female student sanctioned for misleading campus authorities in the course of their investigation), she brought a Title IX complaint against the school. OCR’s mandate was to look at Tufts’ procedural deficiencies, not the finding in the case, and it criticized Tufts at length. The university agreed to make all the OCR’s recommended changes: to improve its protections for accusers and speed up its resolution process, among other things. The school also agreed to give a monetary settlement to the female student. But Tufts balked at signing off on OCR’s finding that the school was a Title IX violator. It issued a statement saying the school “could not, in good faith, allow our community to believe that we are not in compliance with such an important law.” In response, OCR told Tufts it would pull the university’s federal funds, a threat, the Boston Globe wrote, that was “so catastrophic that it virtually required Tufts to reach some understanding with the government.” It took only a few days for Tufts to cave.
6 The New Rules of Engagement
To punish the alleged perpetrators of sexual violence, colleges have put in place systems that are heavy-handed and unfair. Efforts to prevent sexual violence from occurring are unfortunately no more enlightened. College students today are increasingly treated as a special sexual caste, who unlike their peers out in the working world can’t be relied upon to have sex without convoluted regulations that treat lovemaking as if it were a contract negotiation. Often, they are governed by a regimen called “affirmative consent,” an attempt by legislators and administrators to remove all ambiguity from sex.
The federal government has so far not mandated affirmative consent as a national standard, but states have been enthusiastically embracing the idea. Andrew Cuomo, governor of New York, recently enactedan affirmative consent standard for all State University of New York schools, calling the statistics on sexual assault “breathtaking.” California just became the first state to write the practice into law for all publicand private colleges. The precise rules vary from place to place, but the point is to systematize the progression of a sexual encounter. Consent can’t be presumed—even between members of an established couple. It must be affirmatively given—for each and every sexual encounter and for every sex act.
At Ohio State University, two young people who want to engage in sexual congress might be well advised to first consult with the philosophy department and the law school. The university’s consent guidelines state, in part: “Consent is a knowing and voluntary verbal or non-verbal agreement between both parties to participate in each and every sexual act.” “Effective consent can be given by words or actions so long as the words or actions create a mutual understanding between both parties regarding the conditions of the sexual activity—ask, ‘do both of us understand and agree regarding the who, what, where, when, why, and how this sexual activity will take place?’” “Regardless of past experiences with other partners or your current partner, consent must be obtained. Consent can never be assumed, even in the context of a relationship.”
The Foundation for Individual Rights in Education is a civil liberties group dedicated to defending constitutional rights on campus, and Joseph Cohn is its legislative and policy director. The group says affirmative consent is both unnecessary and potentially pernicious. “Our laws already make sexual activity without consent illegal,” Cohn says. Affirmative consent, he says, makes sexual activity that is lawful off campus a punishable offense on it.
Advocates of affirmative consent argue that these regulations won’t lead to frivolous accusations. They say only women who truly haven’t given consent will ever bring a charge. But under an affirmative consent regime, a young man can be threatened with expulsion even if his sexual partner doesn’t say no.
Yale University.Courtesy of Ville Oksanen/Flickr
The Yale Daily News recently reported on a sexual assault case that illuminates what can now be considered an offense worthy of punishment and the elaborate investigative and hearing processes now in place to adjudicate who agreed to what. A male and female who were sometime lovers hooked up one night after she had been drinking and they had been sending flirty texts. (She wrote to him, “Don’t let me try to seduce you though. Because that is a distinct possibility.”) She eventually invited him to her room, where she says she capitulated to his desire for sex because in the past when she refused him he would scream and cry, which she found overwhelming. His version was that upon arrival she grabbed him, kissed him, they each took off their clothes, and then had sex twice that evening and once in the morning. Although she was sober by the time of the morning encounter, she later told Yale officials that all of the sex was nonconsensual because she was too drunk during the evening to consent, and in the morning, theYale Daily News reports, “she did not resist because she felt refusal would be too emotionally exhausting.” A full year after the encounter, she brought a sexual assault charge against the young man, hoping to get him expelled. There was an investigation by an “impartial fact-finder,” a written report, then a three-and-a-half hour hearing. The tribunal found that the young man did not violate Yale’s sexual misconduct policy.
It might easily have gone the other way, given the capaciousness of Yale’s consent standard: “Yale’s definition of consent reflects the University’s high expectations and permits discipline for behavior that does not meet a criminal standard,” reads Yale’s Title IX FAQ. Yale “may find that an encounter took place without coercion, force, or threat of force (criteria often associated with the term ‘rape’) but still deem it to have lacked the unambiguous ongoing agreement that constitutes consent under the Yale standard.”
Carol Tavris is a social psychologist and author of the feminist classic, The Mismeasure of Woman, and, with Elliot Aronson, Mistakes Were Made (but Not by Me). She says she is troubled by the blurring of distinctions between rape (notably by predatory males), unwanted sex (where one party agrees to sex not out of desire but to please or placate the partner), and the kind of consensual sex where both parties are so drunk they can barely remember what happened—and one of them later regrets it. She says, “Calling all of these kinds of sexual encounters ‘rape’ or ‘sexual assault’ doesn’t teach young women how to learn what they want sexually, let alone how to communicate what they want, or don’t want. It doesn’t teach them to take responsibility for their decisions, for their reluctance to speak up. Sexual communication is really hard—you don’t learn how to do it in a few weekends.”
Tavris also believes holding only men responsible for their sexual behavior has pernicious effects on women because it supports a victim identity that is already too prevalent in our society. “It’s so much easier to be a victim than to admit culpability, admit your own involvement, admit that you made a mistake,” she says. “It’s much easier to say it’s all his fault. Look, sometimes it is all his fault. That’s called rape. But ambiguities and unexpected decisions are part of many encounters, especially sexual ones.”
7 The Alcohol Taboo
Government officials and campus administrators are paying more attention to what’s going on between the sheets in dorm rooms than ever before. Despite all their newfound efforts to curtail sexual violence on campus, however, they’re willfully ignoring the most important single factor running through accounts of such violence: alcohol.
It’s a surprisingly loaded subject, given the widely acknowledged prevalence of drinking on American campuses. Last year, I wrote about drinking and sexual assault in a Slate piece titled, “College Women: Stop Getting Drunk.” I said that binge drinking was bad for everyone but that it presented a particular danger for young women because it made them more vulnerable to sexual assault—I described sober predators who specifically targeted intoxicated women. I was widely denounced for “victim-blaming.” This year, I was disinvited to speak at a West Coast college after board members of a student organization that had invited me decided my presence would make student victims “feel unsafe.”
It is simply misleading to tell young women they have as great a chance of being sexually assaulted while in their dorm studying at 1 p.m. as they do at a drunken frat party at 1 a.m.
In the White House report, Not Alone, the Obama administration promises to develop new prevention strategies for campus sexual assault. But that’s going to be difficult if it continues to refuse to address drinking. Raynard Kington, president of Grinnell College and former director of the National Institute on Alcohol Abuse and Alcoholism, wrote in Inside Higher Ed in response to the report, “As a public health physician, I was surprised and disappointed that the word ‘alcohol’ literally does not appear anywhere in the chapter on prevention.” He said he understood the concern about blaming the victim when discussing alcohol, but in tackling sexual assault at Grinnell he realized “we would never address the problem unless we also addressed the issue of excessive drinking.”
A September article in the Chronicle of Higher Education noted that for the past 15 years, Department of Justice grants to study campus sexual assault prevention have specifically excluded focusing on alcohol. Why? Because DOJ didn’t want any emphasis on “changing victim behavior.” The Chronicle article quoted a coordinator for Partners in Prevention, a higher-education substance abuse program, who said, “What we steer our campuses away from is anything that says someone experienced gender violence because they had been drinking. Even if a student is sitting in a residence-hall room, gender violence can happen to them.”
It is simply misleading to tell young women they have as great a chance of being sexually assaulted while in their dorm studying at 1 p.m. as they do at a drunken frat party at 1 a.m. There are patterns to victimization. The Campus Sexual Assault Study found the majority of victims were freshmen and sophomores, the most common time of year to be assaulted is when school begins in the fall, the most common days were Friday and Saturday, the most common time was after midnight. People who had been previously assaulted were at far greater risk of revictimization. Alcohol was overwhelmingly an element. The United Educators study of insurance payouts for sexual assault found that “Alcohol was a significant factor in nearly all of the claims studied.”
And it’s not just about conveying to young women the dangers of drinking. It’s equally important to tell young men about the jeopardy they face when having an alcohol-fueled sexual encounter at college. While women’s consumption is often considered a mitigating factor at campus tribunals, men’s consumption generally is not. This disparity is sex discrimination, says Brett Sokolow, president of theNational Center for Higher Education Risk Management. Sokolow has long fought for harsh penalties for accused men on campus. But in an open letter titled “Sex and Booze,” he writes: “If both are intoxicated they both did the same thing to each other. Why should only the male be charged if both students behave in ways defined as prohibited by the policy?” He has been called in to consult on cases in which schools have suspended or expelled the young man when both students were equally intoxicated. Schools that are doing so, he says, are creating male “Title IX plaintiffs.”
Courtesy of Beau/Flickr
Sokolow also says schools err when they adhere to an unrealistic standard that consumption of alcohol renders consent moot. Criminal statutes generally require that for sex to be nonconsensual due to alcohol or drugs, the accuser be not just intoxicated, but incapacitated. Having had a few drinks does not mean people, even young people, lack the capacity to make decisions about their actions, however poor those decisions may look in retrospect. Sokolow notes, however, that at some colleges “boards and panels can’t tell the difference between drunk sex and a policy violation.”
To the extent the Obama administration has addressed the role of alcohol in sexual assault, it’s done so in a way that suggests it has not thought carefully about this potentially complicated issue. When the president announced in Not Alone that his administration was committed to “putting an end” to sexual violence on campus, the first step he suggested was to have every college student take a survey. (The CASA bill would make this survey-taking mandatory.) The administration released a “toolkit,” a sample survey. Creating a national sexual assault census might seem to solve the problem of unrepresentative studies, though it is concerning that the federal government would require students to answer invasive questions about their sexual experiences, even anonymously. (One question asks respondents whether they’ve experienced, against their will, “someone putting their finger or an object like a bottle or candle in your vagina or anus.”)
But some sections of the toolkit seem less interested in gathering data than in promoting a black-and-white view of situations that are notoriously murky. One section, titled “Rape Myth Acceptance,” lists what it describes as myths about drinking and rape. These include, “If both people are drunk, it can’t be rape” and “It shouldn’t be considered rape if a guy is drunk and didn’t realize what he was doing.” It is obviously incorrect to say that if both parties are drunk, it can’t be rape or to suggest that being drunk could ever be an excuse for rape. But this exercise in supposed myth-busting doesn’t allow for the ambiguity of these often bedeviling situations, and it fails to acknowledge that when both people are drunk, sometimes they both make regrettable decisions and have genuinely divergent views about what happened the next morning.
KC Johnson, of the Manhattan Institute’s Minding the Campus blog, has compiled a list of top-ranked institutions, including Columbia, Duke, and Stanford, whose policies could lead to a young man being found responsible for a sexual offense simply if the complainant establishes that she had any degree of intoxication. Johnson notes that at Brown if two people were drinking and later an accusation is made, the disparate treatment is stark. The policy states: “A charged student’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than a mitigating circumstance.”
8 A Matter for Prosecutors, Not Professors
The names Hannah Graham and Morgan Harrington, two Virginia college students who were kidnapped, raped, and murdered, are powerful testimony to the need to get campus sexual assault right. Jesse Matthew, 32, being held for Graham’s murder, has also been linked to Harrington’s and will be tried for the rape of a third woman who managed to get away. When he was acollege student, Matthew was expelled from two consecutive schools, Liberty University and Christopher Newport University, after accusations of rape. Tragically, neither case ended up in the criminal justice system. It is precisely because serial predators of the kind Lisak describes do exist that we should recognize adjudicating rape is not the job of college administrators but of law enforcement. Expelling a predator only sends him out into society to attack again.
The University of Virginia.
Courtesy of Bob Mical/Flickr
Consider the Rolling Stone article about the alleged gang rape at the University of Virginia, which reignited a heated national debate about the treatment of victims on campus. The article is now unraveling, with both Sabrina Rubin Erdely’s journalism and her source’s account called into question. But the story did raise legitimate concerns about reporting requirements on campuses. Let’s assume that the alleged victim, Jackie, did tell a dean at the university that she had been the victim of a gruesome attack, as Erdely wrote in her story. How could an allegation of a clearly criminal act not be reported directly to law enforcement? As my colleague Dahlia Lithwick has explained, the federal government mandates that schools offer a “noncriminal, survivor-centered, confidential response” to victims. This means not reporting a crime to the police if the victim prefers not to. (Erdely wrote that Jackie had been told by the dean that she could make a criminal complaint, but had declined to do so.) Respecting the feelings of victims is important, and crucial to encouraging more women to report violence. But elevating the psychological comfort of victims over society’s need to punish criminals will only let perpetrators go free.
The critiques of how the criminal justice system treats victims are many and justified, but that’s an argument for further reform, and for finding ways to reduce the trauma to victims, not for asking schools to take over the role of law enforcement. (To its credit, the proposed Campus Accountability and Safety Act, does recognize the important role the criminal justice system should play in campus sexual assault and calls for standardizing cooperation between colleges and local law enforcement so that more perpetrators are investigated by trained law enforcement professionals.)
FIRE’s Joseph Cohn says the unfortunate but pervasive message students get is that law enforcement is not there to help. “It’s not perfect. But that’s not the argument for seeking justice outside it.” If victims don’t go to the police, he adds, “the conviction rate is zero.” He says when students are getting sexual assault education, administrators must emphasize the importance of procedures to protect evidence and must tell them about going to the hospital to get a timely rape kit—it has to be done within 72 hours. Doing so doesn’t mean a student is committing to a criminal charge. But without such steps, it can be futile to later try to bring one.
9 The Way Forward
What is to be done? How can the government and institutions of higher education address sexual assault, support victims, identify predators, and not unfairly punish innocent students?
A good place to start would be scaling back the powers of the Department of Education’s Office for Civil Rights, which has overstepped its bounds in micromanaging university policies and enforcing draconian rules that infringe on the rights of the accused. And before making policy based on alarming statistics, officials should ponder a study’s limitations and read all the footnotes.
Rather than creating a separate (and unfair) system of justice, we should ensure the safety of college students the same way we ensure the safety of those who aren’t in college. Instead of universities writing expansive and elaborate sexual conduct rules, they should rely on the narrower statutes that govern criminal sexual assault and civil sexual harassment. “Affirmative consent” regulations should be struck. These rules dictate how young adults in college make love, and that’s both ridiculous and quixotic. (There’s a vast difference between telling people how to conduct their sex lives and having laws that punish those who perpetrate sex crimes.) When universities do take action against a student for sexual misconduct, if the definition of misconduct is narrower, and if there is a return to a standard of “clear and convincing evidence,” as there should be, there will be fewer miscarriages of justice.
Any student who feels she has been sexually victimized should be able to turn to campus counselors who are sensitive listeners and not crusaders. Students who have had a distressing sexual experience need supportive people to help them figure out their next steps. Maybe a potential criminal violation took place and the student needs an escort to the hospital, so that whatever her ultimate decision, crucial evidence is collected. Maybe it was simply a distressing encounter and counseling is the best path. The adults who help these young people should be able to recognize the difference between the two and not default to calling for the accused’s head.
The prohibition about discussing the connection between alcohol and sexual assault should be lifted. We don’t live in a perfect world, and while school administrators should do their best to provide safe environments, it is up to each individual to make wise decisions. Getting incapacitated has no upside for young men or women. Administrators ignore the role of alcohol in sexual assault at their peril, and at the peril of their students, men and women.
We also need to change the culture of discourse around sexual assault on campuses. To stand up for the rights of the accused is not to attack victims or women. Our colleges, like the rest of our society, must be places where you are innocent until proven guilty. The day after graduation, young men and women will be thrown into a world where there is no Gender-Based Misconduct Office. They will have to live by the rules of society at large. Higher education should ready our students for this reality, not shield them from it.
*Update, Dec. 8, 2014: This sentence has been updated to clarify Cochran’s concern with regards to extrapolating from the UMass Boston study. Cochran was speaking generally to the problem of generalizing from a single study about a single school, which may not be representative of schools nationwide; he was not speaking about the problem of generalizing from Lisak’s study in particular. (Return.)
*Correction, Dec. 8, 2014: This article originally misidentified the Department of Education’s Office for Civil Rights as the Office of Civil Rights. (Return.)
The Department of Education pushed out a letter to universities across America in 2011, giving college bureaucrats the legal ability to determine the guilt or innocence of people accused of sexual assault. Today, a slew of men who were allegedly wrongfully found guilty of rape by reckless college administrators are retaliating with lawsuits against the universities.
As of this month, there have been 50 known lawsuits filed by men found guilty of rape looking for justice to clear their names and legal record,according to A Voice For Male Students’ website.
“Predictably, a wave of lawsuits soon erupted as young men wrongly accused of sex crimes found themselves hustled through a vague and misshapen adjudication process with slipshod checks and balances and Kafkaesque standards of evidence,” the men’s advocacy page reads.
The Department of Education’s Office for Civil Rights sent out a Dear Colleague letter, in April of 2011 to every college and university in America that receives federal aid, outlining how schools must judge rape or sexual assault cases. The letter leaves the legal cases in the hands of school bureaucrats who have no proven knowledge of the criminal justice system, to investigate and prosecute students.
The government agency launched a set of rules that determines whether a student is guilty or innocent with the “preponderance of evidence” standard which relies on absurdly low proof of evidence. This preponderance standard proves that a student is guilty of assault if an administrator feels there is a 50.01 percent chance the attack or rape actually happened. (RELATED: Duke Student Expelled For Sexual Misconduct Sues For Diploma)
This government requirement has thus resulted in a slew of men filing federal lawsuits claiming they have been wrongfully found guilty of rape or sexual assault, citing government’s policies are unfairly stacked against men.
The legal cases come from across the country, including pot-loving, granola-crunching Brown University, which has had two lawsuits thrown at them by men found guilty of rape by the university. Most recently, student athlete William McCormick fired off a lawsuit against Brown after the school found him guilty of raping Marcella “Beth” Dresdale — the daughter of billionaire Richard Dresdale, a vital donor to the school. In 2011, the case was settled after McCormick was offered about $1 million dollars, according to The Brown Spectator.
And at Columbia University, a student going by the surname John Doe filed a federal case against the school claiming that administrators deemed Doe guilty because they were too afraid to dissatisfy a group of student activists who rallied around an alleged rape victim. His case, which was filed in May, is currently pending.
Even Catholic schools like College of the Holy Cross have had legal battles after wrongfully labeling students as rapists. Student Edwin Bleiler was wrongfully found guilty or raping a girl by Holy Cross school administrators, and kicked off campus. Bleiler filed a suit against the school in 2011, and was later acquitted of his charges and allowed to return to school, according to a court ruling.
Most of the other 46 of the 50 court cases have yet to be decided, or have already reached confidential settlements.
“This page is dedicated to cataloging their [male student] legal challenges against schools which — they allege — have violated their rights to due process, unjustly destroyed their names, deprived them of educational opportunities, and committed various other injustices against them in the name of ‘just following orders,’” the men’s advocacy webpage reads.
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