Tag Archives: campus rape

There Is No Campus Rape Epidemic, But a Lot of Media Malpractice

By KC Johnson and Stuart Taylor Jr.

This is an excerpt from the new book, The Campus Rape Frenzy, the
Attack on Due Process at America’s Universities by KC Johnson and Stuart Taylor Jr.


The New York Times’ coverage of alleged sexual assault on college campuses “seems of a piece with the leftist bias I noticed within the Times newsroom regarding climate change, gay marriage, abortion, affirmative action, labor, and other hot-button issues.”

Tom Jolly, New York Times sports editor, confessed in February 2008 that he regretted aspects of his paper’s much-criticized coverage of the Duke lacrosse case.  He vowed to do better. “Knowledge gained by hindsight has informed our approach to other stories since then,” said Jolly, who later became an associate managing editor.

But The Times did not do better. Its handling of recent campus sexual assault cases has been pervaded by the same biases that drove its Duke lacrosse coverage. The paper has continued to unquestioningly accept alleged victims’ stories while omitting evidence that might harm their credibility. Like almost all other mainstream media, the Times also has glossed over how university procedures stack the deck against accused students.

With the Times setting the tone, the mainstream media have presented a misleading picture of almost every aspect of the campus sexual assault problem. The coverage has had three critical flaws. The first is the “believe-the-survivor” dogma, which presumes the guilt of accused students—a sentiment that Harvard Law School professor Jeannie Suk Gersen has identified as a “near-religious teaching.”

Related: Ten Campus Rapes—or Were They?

Second, most journalists have embraced without skepticism or context surveys purporting to show that 20 percent of female college students are sexually assaulted—thereby portraying campuses as awash in an unprecedented wave of violent crime.  Third, most media coverage of alleged sexual assault on college campuses fails to report in any meaningful way (if at all) the actual procedures that colleges employ in sexual assault cases.

Richard Pérez-Peña, a veteran reporter who joined The Times in 1992, wrote most of its stories on alleged campus sexual assault between January 2012 and December 2014. He debuted on the beat with a long article suggesting that Yale quarterback Patrick Witt was a liar and a rapist. Pérez-Peña implied that Witt and Yale’s officials had misled the public when they said that Witt had withdrawn from the Rhodes Scholarship competition because of a conflict between the Yale-Harvard game and his scheduled interview. The real reason for Witt’s withdrawal, Pérez-Peña asserted, was a mysterious sexual misconduct allegation.

Even if true, this information would hardly have been worthy of aggressive treatment by the nation’s most powerful newspaper. In addition, the reporter relied on an undisclosed number of anonymous sources. Indeed, he never figured out who Witt’s accuser was. He never learned what the accuser alleged Witt had done.  (Neither did Witt.)

The New York Times’ coverage of alleged sexual assault on college campuses “seems of a piece with the leftist bias I noticed within the Times newsroom regarding climate change, gay marriage, abortion, affirmative action, labor, and other hot-button issues.”

He insinuated that Yale had suspended Witt. (In fact, Witt was finishing his senior thesis off campus while preparing for the NFL draft.) In his article, Pérez-Peña never described the “informal complaint” process that Yale used against Witt, a process that denied him any right to present evidence of his innocence. Witt, like all students accused under the “informal” process since 2011, was found guilty and given a reprimand.

The Yale Daily News almost immediately raised doubts about the article, citing contemporaneous emails from Witt that conflicted with Pérez-Peña’s account. Shortly thereafter, several people outside the traditional media, including one of us (KC Johnson), raised questions about Pérez-Peña’s work. The cheeky sports website Deadspin published a comprehensive takedown of Pérez-Peña’s timeline. Worth editor-in- chief Richard Bradley, writing on his personal blog, Shots in the Dark, concluded that “The Times—and, yes, Richard Pérez-Peña—owe Patrick Witt an apology. Then Pérez-Peña and the editor who green-lighted this story should be fired.”

Related: Education Dept. Rules on Campus Rape Called Illegal

Pérez-Peña was not fired. But the problems with his work spurred The Times’ public editor, Arthur Brisbane, to do the reporting that Pérez-Peña should have done. Brisbane spoke to Witt’s agent, uncovered emails Pérez-Peña hadn’t found and described Yale’s “informal” complaint process. “Maybe you just can’t publish this story, not with the facts known now,” Brisbane concluded because “when something as serious as a person’s reputation is at stake, it’s not enough to rely on anonymous sourcing, effectively saying ‘trust us.’”

Such criticism appears to have had little or no effect inside The Times newsroom. Indeed, in a November 4, 2014, tweet, Times reporter Vivian Yee (@VivianHYee) defended Pérez-Peña’s work, gloating that despite the public editor’s devastating criticism, “for the record, there was no ‘retraction’ on our story” about Witt. Meanwhile, Yale’s actions, compounded by Times errors, “nearly ruined my life,” Witt wrote in November 2014.

Most of Pérez-Peña’s nearly 20 articles (a few with joint bylines) on campus sexual assault allegations exhibited the same problems as his Witt coverage. In an October 2012 piece, he uncritically presented Angie Epifano’s “wrenching account” of her supposed mistreatment by Amherst. Pérez-Peña made no effort to contact either the student Epifano accused of rape or the Amherst employees she portrayed as uncaring. In what was billed as a straight news article, the reporter celebrated Amherst President Biddy Martin’s adoption of draconian disciplinary procedures—the same procedures that paved the way for Amherst’s expulsion of Michael Cheng. In another article, Pérez-Peña gushed that “it may be that no college leader in the country was as well prepared to face this controversy than [sic] Biddy Martin.”

In a March 2013 article, Pérez-Peña wrote inaccurately that the 2011 Dear Colleague letter issued by the Department of Education’s Office for Civil Rights “did not markedly change   interpretation of the law; instead, it reminded colleges of obligations that many of them had ignored, and signaled that there was a new seriousness in Washington about enforcing them.”   Hours later, an editor seems to have noticed the error, and the first clause quoted above was changed to say that “[t]he letter [did] change the interpretation of parts of the law.” But with the rest of the sentence unaltered, the new version was an absurd assertion that OCR had “reminded” colleges of nonexistent “obligations” that they had previously “ignored.”

Related: The “Jackie” Interview in the UVA Fake Rape

In 2014, an article by Pérez-Peña and Kate Taylor asserted that “there is scant evidence that sexual assault is more or less prevalent than in the past”—a claim contradicted by the Bureau of Justice Statistics data concluding that sexual assault rates had plunged since 1996. FBI crime statistics show a similar pattern.

The spring and summer of 2014 also featured two in-depth pieces on alleged campus sexual assault by Times investigative journalist Walt Bogdanich, a three-time Pulitzer Prize winner and acclaimed investigative reporter. Unlike Pérez-Peña’s articles, Bogdanich’s two articles presented cases in which the allegations were plausible. The acknowledged conduct in both cases was deeply disturbing, and the accused students were extremely unsympathetic. But still, both pieces omitted critical evidence.

Bogdanich’s comments in a 2015 interview may help explain why. Discussing his approach to campus sexual assault allegations, he remarked that investigative reporters like him “get upset …  when we see powerful people unfairly taking advantage of the less powerful.” But in the typical campus context (if not in one and perhaps both of Bogdanich’s cases), the accused student is more often the party treated unfairly by “powerful people.” Bogdanich’s emotionalism and the apparent presumption of guilt in cases involving campus sexual assault accusations served his readers poorly.

Bogdanich’s first showcase article was a 5,200-word front-pager in April 2014. I left the clear impression that Jameis Winston—the Heisman Trophy–winning, NFL first draft choice, former Florida State University quarterback—had raped a fellow first-year student named Erica Kinsman. Whether or not a rapist, Winston was a singularly unappealing character—“an embarrassment in a lot of ways to the university,” as former FSU coach Bobby Bowden put it. He seemed a perfect fit for the media narrative of coddled star athletes raping fellow students and getting away with it. Perhaps it was for this reason that in almost all of the paper’s more than 20 articles about the case, Bogdanich and other Times reporters omitted virtually all the evidence that cast doubt on the alleged victim’s credibility.

Shortly into his magnum opus, Bogdanich implied that Kinsman had been drugged. She claimed that someone at a bar had given her a drink, apparently spiked with a date-rape drug, which caused her to black out. He did not mention that two toxicology reports had shown no trace of any known drug in her system.

Bogdanich added, “After partially blacking out…she found herself in an apartment with a man on top of her, sexually assaulting her.” That portrayal and Kinsman’s various suggestions to police to the same effect was contradicted not only by other witnesses but also, later, by Kinsman’s own December 2014 testimony admitting that she went voluntarily with Winston into his bedroom.

Kinsman’s initial recorded phone report (through a friend) to campus police was that after leaving an off-campus bar, she had been hit on the back of the head, blacked out, and found herself being raped by a stranger. Yet a medical exam detected no sign of a blow to the head. Kinsman never repeated the claim. The Times never mentioned it and therefore did not explore how the accuser changed her story.

Finally, Winston’s lawyers had alleged that Kinsman’s aunt (also her first lawyer) introduced an ugly racial element to the case when she said in a phone call that Kinsman (who is white) would never voluntarily sleep with a “black boy.” The aunt never responded to an email from one of us asking whether she had made such a remark. The possibility of racial bias in the accuser’s family has never been mentioned in the Times.

The   two  most  plausible  views  of the encounter    are  that  after Kinsman went voluntarily into Winston’s bedroom, (1) she made it clear at some point that she did not consent to sex but he proceeded anyway or (2) she consented to sex and never clearly withdrew her consent but later alleged rape because she felt she had been badly treated by Winston during the  encounter—as she clearly was, according to his version of events (for example, he let his roommate enter the room while he was in bed with Kinsman before taking her into the bathroom to have sex on the hard  floor).

The evidence in the case remains ambiguous, and Kinsman’s shifting stories significantly undermine her credibility. State Attorney William Meggs concluded that the evidence did not show probable guilt. Former Florida Supreme Court Justice Major Harding, who presided over FSU’s two-day disciplinary hearing, cited conflicts between Kinsman’s testimony and other, undisputed evidence, to reach the same conclusion.

One of us (Stuart Taylor) exposed The Times’ mistreatment of Winston at length in February 2015, in Real Clear Sports. An official Times response stressed that the point of the Bogdanich article had been to critique shoddy work on the case by Tallahassee police. But The Times did not challenge any of the exposé’s factual assertions. None of this record prevented the Pulitzer Prize Board from naming Bogdanich in April 2015 as a finalist, for “stories exposing preferential police treatment for Florida State University football players who are accused of sexual assault and other criminal offenses.”

In his next piece for The Times, this one focusing on Hobart and William Smith (HWS), a small school in upstate New York, Bogdanich displayed a similarly one-sided approach. According to Bogdanich, at a party in September 2013, a first-year student called “Anna” had had sex with several football players in a row. Bogdanich’s work clearly conveyed the impression that this was a rape because Anna had been incapacitated by alcohol. But neither the police nor an HWS disciplinary hearing found sufficient evidence to make that determination, even (in the latter case) under the low standard of proof decreed by OCR. Bogdanich waved away these findings by claiming, again, that the police work had been shoddy. He also asserted that at HWS, the absence of “the usual courtroom checks and balances” had been unfair to the accuser.

On top of such claims, Bogdanich committed acts of careless journalism. He did not explore (until after The Finger Lakes Times had reported) the accuser’s refusal, on the advice of her lawyer, to give police access to her rape kit, which hampered their investigation. Bogdanich appears not even to have attempted to speak with the accused students or their lawyers. Worse, he glossed over the refusal of the accuser’s only corroborating witness to testify in the HWS disciplinary process. The reporter wrote that this critical witness “stands by his account, according to Anna.”

“According to Anna”? A careful reporter would have asked the witness himself, whom Bogdanich quoted on other points. The Finger Lakes Times reported claims by both the district attorney and HWS’s president that Bogdanich had taken out of context material from the college disciplinary board’s hearing transcript. If these assertions were unfair, The New   York Times could have disproved them by posting the transcript on its website. It did not do so.

The New York Times’ coverage of alleged sexual assault on college campuses “seems of a piece with the leftist bias I noticed within The Times newsroom regarding climate change, gay marriage, abortion, affirmative action, labor, and other hot-button issues,” former Times editor Tom Kuntz told us via email. Kuntz, a self-described libertarian, had worked for the newspaper since 1987 but left in early 2016, in part because he no longer felt comfortable with its generally slanted coverage and lack of balance.

“This bias can no longer be chalked up as simply a function of too many lefty reporters and editors in the newsroom,” Kuntz added. “The Times has geared it survival strategy to preaching to the liberal converted. Although no one in authority at The Times says so explicitly in public, you can read between the lines of such statements as the October 2015 announcement by CEO Mark Thompson. He said that The Times plans to ‘double the number of [its] most loyal readers,’ and ‘double its digital revenue,’ by 2020, by catering to those who most reliably part with money for Times content.”

A company statement quoted by Kuntz said The Times planned to develop loyal readers “increasingly from younger demographics and international audiences”—groups with predominantly liberal views. Indeed, said Kuntz, “I noticed in many corporate strategy briefings over recent years that The Times seems to care little about bringing conservative readers into the fold. In PowerPoint presentations and the like, competitors listed as ones that mattered were liberal outfits like the Huffington Post and the Guardian—not conservative outlets, with the exception of The Wall Street Journal. The Drudge Report, Fox News, and the Daily Mail, for example, were ignored despite their enormous audiences.”

This corporate strategy was consistent with a much-noted 2014 newsroom innovation study led by Arthur Gregg Sulzberger, son and possible successor of the current publisher, according to Kuntz. The junior Sulzberger soon became senior editor for strategy (before rising even further in the company), and his “first task,” according to Executive Editor Dean Baquet’s memo about   the appointment, was “to help the newsroom’s leaders and [editorial page editor] Andy Rosenthal build a joint newsroom-editorial page audience development operation that can pull all the levers and build readership.”

Related: FIRE Makes the OCR Back Down

Another longtime and respected Times journalist with whom we spoke has a very different view of the newspaper’s motivations. This insider says that “the notion that there is a decision to feed red meat to the liberal base is just nonsense. It’s horseshit. We write a lot about climate change, and we do it with a point of view that accepts the scientific consensus and ‘liberal’ worldview. Is that an attempt to attract eyeballs by throwing red meat to liberal readers or is it coverage of something important we and our readers care about? We write a lot about police violence, Black Lives Matter, and the post-Ferguson law enforcement environment. We write a lot about women’s issues such as access to abortion and contraception. You can argue with the coverage if you like, but it’s complete nonsense to think there’s a sudden strategy to drive digital readership on campus sex issues by throwing out liberal swill to drive up pageviews.

“There’s a complicated and fair discussion you could have about bias, conscious and unconscious in what we do,” The Times journalist continued. “On campus rape, I think you can argue both that it’s a hugely important issue we need to address and that our coverage has tended to disproportionately reflect the ‘liberal’ world view of feminist activists, and that it has been slow to adequately address the rights of accused males. That’s a worthy discussion. But seeing some kind of cabal to crank out liberal catnip to get clicks reflects a complete failure to understand how this place works.”

Whether the reason is groupthink or a strategy of firing up the newspaper’s liberal base, The Times’ coverage of alleged sexual assault on college campuses has represented a journalistic failure—and a particularly troubling one, given the paper’s earlier failure on this issue in the Duke lacrosse case.

All available materials from cases mentioned in this book are posted on here.

KC Johnson, professor of history at Brooklyn College and the CUNY Graduate Center, covers higher education matters for Minding the Campus. Stuart Taylor Jr., a National Journal contributing editor, was the co-author with KC Johnson of Until Proven Innocent, the classic study of the Duke Lacrosse hoax.

Is the University of Tennessee Safe for Women?

At the University of Tennessee, Knoxville, fall is the time for students to worry about sexual assault. At least that’s the message in the current issue of the Chronicle of Higher Education. As reporter Robin Wilson tells it, the beginning of the school year is a dangerous “red zone,” when predatory campus males are most likely to attack female students. The article features a long red carpet on a campus walkway, which students sign as a promise to be alert to sexual assault.

The article strikes an apprehensive, near-paranoid tone: “Female students come here with a list of warnings: Never walk alone. Carry Mace. Don’t take Uber, because your driver could kidnap you. Keep the number of the campus police chief in your cell phone. With heightened national attention to campus safety, the most common advice that young women say they’ve heard from relatives and friends isn’t “Have fun” or “Do your best.” It’s “Be careful.”

The threat of rape seems inescapable: “With all the admonitions to stay safe, female students here describe a constant low-grade state of fear. They talk about almost never being on their own and developing secret hand motions to signal to friends when they’re uncomfortable somewhere and want to leave. Many parents who started tracking their daughters’ cell phones in high school still do.”

Constant fear and secret hand signals seem excessive to the actual sexual threat on campus. During 2015, 38 sexual misconduct complaints were filed on campus, up from 13 in 2011. The 38 last year may include sexual assault (the different categories are not separated out), but they also cover a wide array of misconduct, from sexual harassment to “sexual exploitation,” which might extend to peeping Toms, misunderstandings, seduction, or next-day regrets.

Also,the numbers include misconduct offenses by student organizations. In all, 8 complaints were filed with Knoxville Police and 3 with the campus cops, low numbers for a student population of 28,000.

A great many campuses contain groups that consider males inherently dangerous and toxic. Tennessee-Knoxville seems to be one of them.

More on the Sex Panic at Yale

The bizarre procedures of Yale’s sprawling sexual assault bureaucracy may well be the worst in the nation. We have come to realize this because Yale is the only university to publicly document all campus allegations of sexual assault, the result of a 2012 agreement with the Obama administration. Reports issued by Deputy Provost Stephanie Spangler don’t provide much detail, but with each new report, we see more clearly a campus environment characterized more by witch hunts than a pursuit of justice.

Consider this item: “An administrator informed a Title IX Coordinator that a Yale College student reported that another YC student made unwanted advances.” On the basis of this third-hand allegation, a current Yale student is being investigated.

The most recent Spangler Report, just published, says 20 Yale undergraduates were accused of sexual assault in the first six months of 2016. Twenty-six undergraduates filed sexual assault complaints. Assuming all were female (the source of around 99 percent of campus complaints), it would mean an annual violent crime rate for Yale undergraduate women of 1.9 percent, without taking into account any attempted murder or felony assault claims. That would be just under the annual violent crime rate for the city FBI stats deem the most dangerous in the country, Detroit.

Yet Spangler, it seems, believes her campus is actually far more dangerous for undergraduate females than Detroit. “We know,” she writes, “from both national statistics and our own participation in the 2015 AAU Sexual Climate Survey that this number represents only a fraction of the instances of sexual misconduct at Yale.” Actually, we “know” no such thing—as my colleague Stuart Taylor has pointed out, the AAU survey appears to have dramatically oversampled female students who reported a sexual assault to their school.

Here are some revelations from previous Spangler reports:

  • There is an increasing pattern of Yale’s Title IX office filings complaints on their own, without a formal complaint by the alleged victim, and odd investigations based on anonymous complaints—and sometimes with anonymous targets
  • The “resolution” of a complaint against a professor was reported, with a chair to “monitor” him, even though the professor has never officially been informed of the complaint
  • A student was punished though even Yale’s due process-unfriendly system had found not culpable for the allegations against him
  • Students have been charged under a vague standard that included “emotional or economic abuse” by “roommates”
  • Yale has redefined “sexual assault,” attributing to the term “broad ranges of behavior” that neither the criminal law nor common cultural understanding would define as sexual assault. As a result, no one can really be certain about what constitutes “sexual assault” at Yale.

Limiting Information

The Spangler reports always have seemed designed more to stimulate a sense of panic on campus than to actually convey information. The reports have tended to provide minimal amounts of information—ostensibly for privacy reasons, though Yale could easily provide more detail than it does and still ensure anonymity.

The only time Yale provided more information came in response to criticism from the accusers’ rights movement and its media allies. A 2013 biannual report had revealed that while several students had been found guilty of “sexual assault,” Yale hadn’t expelled any of them. Showing the university’s extraordinary sensitivity to criticism for not being tough enough on campus rape (just the type of sensitivity that attracted the notice of the Second Circuit, when it reinstated a Title IX lawsuit filed by an accused student at Columbia), Yale rushed out with a clarifying statement, as well as a document describing a host of conduct that it considered sexual assault but virtually no one else would. The implication—the students found guilty of “sexual assault” really had committed no such offense.

But while Yale is worried about not looking tough enough on sexual assault, it doesn’t seem to worry about not providing information that might cast doubt on the suggestions that the university is experiencing an unprecedented crime wave. Beginning this August, Spangler has revised her report to exclude details for cases that don’t move into the investigation phase. Instead, the report provides only statistical tables with the filings, so Yale can still list these incidents as campus sexual assault claims, thereby heightening the sense of panic. Spangler argues that Yale has taken this course because “those categories contain complaints in which no further action was taken,” and therefore “the descriptions provide little, if any, additional information.”

But this isn’t so. In fact, the descriptions of these cases were quite revealing. The now-suppressed data showed that these allegations often involved second-hand claims, in which a third party reported that a student whose identity he or she didn’t know was allegedly sexually assaulted another student whose identity the reporter didn’t know. That type of information demonstrated a seemingly panicked student body—and the absurdities of the university’s excessively broad definition of sexual assault. No wonder Spangler removed it.

The Numbers Lie

For Spangler and Yale, if the choice is between its own data (which is itself inflated because of how the university defines “sexual assault”) and dubious stats that reinforce campus beliefs, dubious stats will prevail. And so, Spangler reveals, a campus already frantic in its response to sexual assault has undertaken or will undertake “not only dozens of school and department based town hall meetings, but also workshops, curricular re-examination and design, the creation of local climate committees, the training of peer liaisons, and the expansion of bystander intervention programming to include features relevant to the graduate and professional student experience.”

The Incidents

Despite the high number in Spangler’s executive summary (26 female undergraduates filing sexual assault allegations in the first six months of 2016), only four of those cases made it to the UWC, Yale’s adjudication panel. And of those four, two accusers “withdrew” their allegations, for unspecified reasons. A third case remains pending. The fourth student was tried and unsurprisingly found guilty.

In contrast to recent patterns, the accuser—rather than a Yale Title IX officer—filed all four of these complaints. Though the previous version of the Spangler Report have claimed that the Title IX coordinator will take independent action “only in extremely rare cases, where there is a serious risk to the safety of individuals or the community, will the University take independent action,” that clause does not appear in the most recent Spangler report. Spangler provides no explanation for the revision.

A cynical person might assume that the excision was caused by Jack Montague’s lawsuit, since the complaint against the former Yale basketball captain was filed not by his accuser but by a Title IX officer, even though under no conceivable interpretation of the facts associated with his case did Montague pose a “serious risk to the safety of individuals or the community.” Montague’s expulsion is mentioned in the current report (as an update to cases first referenced in the fall 2015 report, which had contained the “extremely rare” language); though he isn’t identified, the filing of the complaint by the Title IX officer, and his expulsion, are the giveaways.

Consider this item, which seemingly illustrates a chilled classroom environment: “A faculty member reported that a YC student made inappropriate comments in a classroom. A Title IX Coordinator investigated and determined that the conduct did not constitute sexual misconduct and referred the matter to other campus officials for further action.” Since the student—who was nonetheless subjected to an investigation for doing nothing wrong—wasn’t even charged, why was he referred to “other campus officials for further action”? What was this “further action”? Spangler doesn’t say.

Finally, the report has two separate instances in which graduate students made allegations of “improper comments” against two professors. But both times, the students didn’t file charges. It didn’t matter: even though without the charges there was no investigation to determine the truth, in both instances, Spangler reports that the Title IX officer and relevant department chair “will monitor the [professor’s] interactions with students.”

Another reminder that the Yale faculty’s decision to remain largely silent about the assault on their students’ rights will ultimately threaten their own rights as well.

Why Colleges Don’t Have Fair Hearings on Sexual Assault

Some politicians and media outlets seem to believe that college and university campuses are beset by a culture that is indifferent to rape and that the procedures for investigating and adjudicating claims of sexual assault are so one-sided as to constitute gender discrimination against female accusers. In reality, schools for decades have denied meaningful due process to students accused of sexual assault, and mandates from the U.S. Department of Education have only made the problem worse.

Far from condoning criminal activity, American college administrations are so concerned with ideology, federal funding, and public perceptions that they punish innocent students. Examples from four elite institutions—Yale, Amherst, the University of North Carolina, and Occidental College—reveal unfair procedures that come close to presuming guilt and severely restrict the opportunity for accused students not only to defend themselves, but even to prove their innocence. The problem continues to grow worse, and there is as yet no sign of a return to due process in campus tribunals.

Related: Another Unbalanced View of Campus Sex Hearings

KEY POINTS

  1. An April 4, 2011, U.S. Department of Education Office for Civil Rights document dramatically reinterpreted the sexual assault case procedures required for colleges to comply with Title IX.
  2. Threatening the withholding of federal funds, the OCR ordered all colleges to adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard rather than the stricter beyond-a-reasonable-doubt standard.
  3. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings, the new standard makes it too easy to “convict” the accused.
  4. The OCR also ruled that colleges that allowed appeals in the disciplinary process must allow accusers to appeal a not-guilty finding, something that would not happen in the criminal system because of prohibitions on double jeopardy.
  5. Even before issuance of the new OCR document, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

Related: What The Rolling Stone Affidavits Show

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) released a document dramatically reinterpreting Title IX, the federal law that prohibits gender discrimination in colleges and universities that receive federal funds. The document issued by the OCR was a “Dear Colleague” letter, an allegedly informal agency guidance that Department of Education officials claimed did not need to follow notice-and-comment rulemaking pursuant to the Administrative Procedure Act.

The “Dear Colleague” letter specified the procedures that the OCR believed colleges and universities should follow in sexual assault cases in order to comply with Title IX. Although two Department of Education officials have publicly noted that the letter does not have the force of law, this concession does not change its practical effect, which is to coerce universities into compliance. Moreover, each change in Title IX requirements found in the letter increases the likelihood of a guilty finding in a campus sexual assault case.

The Myth: Institutional Negligence

Since 2011, efforts by the Administration to bring universities into compliance with the new mandates have attracted widespread support from politicians and the media. President Barack Obama convened a White House summit on the topic, Vice President Joseph Biden oversaw a task force, and the OCR issued further “guidance” in the form of a 45-page question-and-answer document that also acted as an informal set of rules. In the Senate, Kirsten Gillibrand (D–NY) and Claire McCaskill (D–MO) have been the most outspoken supporters of this policy.

Both The New York Times and The Washington Post have published news articles portraying campuses as hotbeds of violent crime, with female students allegedly facing the risk of extremely high rates of sexual assault. The Times alone has run more than 20 articles on the topic since 2012, and the Post featured a multi-part series in 2015 based on a poll contending that one in five college women are sexually assaulted—a total it reached in part by redefining sexual assault to include such things as sex “coerced…through verbal…promises.”

Related: Georgetown’s Survey Stokes the Rape Panic

At the heart of this campaign is a belief—sincerely held in some instances—that college and university campuses are beset by a “rape culture,” in which the procedures for investigating and adjudicating sexual assault claims are so one-sided as to constitute gender discrimination against female accusers. Only unprecedented federal intervention, according to this theory, can promote justice.

The Reality: American Colleges Railroad the Innocent

For those who have spent any time on campus in the past two decades, this argument seems counterintuitive. The contemporary academy is extraordinarily sensitive to real and perceived discrimination on issues of gender (as well as race and ethnicity). Faculties are increasingly dominated by race/class/gender pedagogy in the humanities and some of the social sciences, and there has been an explosion in the number of administrators responsible for dealing with student life and diversity issues.

Given these facts, it is difficult to see how the academy’s environment could be considered so indifferent to rape as to necessitate unprecedented federal intervention. The on-campus responses to the two highest-profile university rape claims of the past decade—the Duke University lacrosse case of 2006 and the University of Virginia allegations outlined in Rolling Stone in 2014—suggest that, far from being indifferent to rape, the campus environment tends to presume guilt even when faced with non-credible rape allegations.

Nevertheless, the Obama Administration issued new guidelines in 2011 directing colleges and universities to change the procedures they use to evaluate sexual assault allegations. These changes have the effect of dramatically increasing the likelihood that an accused student will be found guilty. Threatening the possible withholding of federal funds, the “Dear Colleague” letter:

Related: Problems in the Stanford Sexual Assault Case

  • Considered it a violation of Title IX to do anything but adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard, in effect ordering colleges to change their procedures. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings—a denial of meaningful legal representation, the lack of mandatory discovery of evidence uncovered by the college, and the inability of colleges to require testimony under oath—the new standard makes it much easier to “convict” an accused student.
  • Stated that colleges that allowed appeals in the disciplinary process (which means virtually all of them) must allow accusers to appeal a not-guilty finding, imposing a type of double-jeopardy principle for students accused of sexual assault.
  • Chastised colleges for taking too long to investigate and adjudicate complaints, with the Obama Administration suggesting a 60-day cap on the entire process.
  • Discouraged colleges from allowing accused students to cross-examine their accusers even in cases in which the accuser is the only witness in a disciplinary hearing that could end with the accused being found responsible for committing sexual assault.

Related: How the Feds Use Orwell to Apply Title IX

The “Dear Colleague” letter imposed a nationwide set of standards, and then-OCR head Russlynn Ali also made clear that the office would welcome the filing of gender discrimination claims by students against their own schools. On May 1, 2014, in a highly unusual move, the OCR revealed the identities of the colleges and universities under investigation (currently more than 200) but refused to “disclose any case-specific facts or details about the institutions under investigation.” The OCR’s inconsistent approach to transparency has left the public with the impression of widespread problems justifying a panicked federal response without the opportunity to evaluate the credibility of these complaints.

In response to the OCR’s guidance, several new campus groups addressing the issue of rape have encouraged self-described “survivors” to file Title IX complaints. The two most prominent, SurvJustice and Know Your IX, have opposed anything approximating fair procedures for college students accused of offenses—while effectively downplaying the idea of requiring colleges to turn sexual assault adjudications over to the courts. Know Your IX co-founder Dana Bolger explained why to The New York Times. The “college disciplinary system,” she argued, is superior to a “criminal justice system [that] notoriously fails rape survivors,” since “police disbelieve victims, prosecutors refuse to take on the majority of cases because they lack witnesses, the standard of proof is impossibly high and juries buy into the rape myths that saturate our society and acquit perpetrators.”

Although sexual assault obviously should not be tolerated and accusations of rape should be treated seriously, it is simply not true that American colleges are systematically turning a blind eye to such violence. The proliferation of activist groups on the side of “victims” suggests, if anything, an extreme desire to use the threat of severe sanctions to change cultural norms.

Related: Campus Surveys Inflate Rape Statistics

Case Study #1: Yale University

The first major Obama-era Title IX complaint came from Yale University. In October 2010, pledges to the Delta Kappa Epsilon fraternity shouted something crude, albeit not illegal. The resulting public backlash led to apologies from the fraternity members, suspension by the national fraternity of the local chapter’s ability to secure pledges, and abandonment of the university’s traditional free-speech absolutism to punish some of the students. The Yale Executive Committee declared that the statements “had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to ‘harassment, coercion or intimidation’ and ‘imperiling the integrity and values of the University community.’”

The fraternity’s spectacle was crass and violated norms of basic decency, but The Atlantic’s Caitlin Flanagan observed that it also could be seen as an “obvious reaction” to the oppressive atmosphere of political correctness on campus. In Flanagan’s opinion, referencing the leader of the 1964 Free Speech Movement at the University of California:

[The] closest you’re going to get to Mario Savio—sick at heart about the operation of the machine and willing to throw himself upon its gears and levers—is less the campus president of Human Rights Watch than the moron over at Phi Sigma Kappa who plans the Colonial Bros and Nava-Hos mixer.

Despite apologies from the fraternity members and condemnation from the Yale administration, campus activists addressing the issue of rape seized on the incident to file a Title IX complaint against Yale. The administration quickly settled. In a voluntary resolution agreement with the OCR, the university agreed to hire various Title IX bureaucrats and to rework its campus sexual assault policy. That policy “encompass[es] broad ranges of behavior,” since the definition of sexual assault employed by Yale is “more expansive” than the one that is used by the federal government or local law enforcement. The university has never explained why it chose to redefine a term—sexual assault—commonly understood in both the law and culture, but in a 2013 document, it did provide examples of the sort of behavior that could lead the school to brand a student guilty of engaging in “nonconsensual sex.”

Related: Suing the Office for Civil Rights

Yale then set up a two-tier system to handle rape allegations. Formal claims would be handled by a newly created University-Wide Committee on Sexual Assault (UWC). The UWC process begins with an allegedly “impartial fact-finder” (whose employment comes through the university Title IX office, which has a repeat relationship with and is often attuned to the views of the regulators) who gathers “documents and conduct[s] interviews as necessary to reach a thorough understanding of the facts and circumstances surrounding the allegations of the complaint.” The investigator’s report serves as the evidentiary basis for the five-person committee that decides the fate of the accused student.

The accused student cannot call relevant witnesses unless he can prove to the panel in advance that he “can offer potentially relevant information that was not conveyed to the fact-finder.” In the rare cases in which a campus accuser also goes to the police, Yale’s disciplinary panel may—but is not required to—consider the evidence from an actual law enforcement investigation.

Finding the truth is all but incidental to Yale’s procedure. Lest the accuser be retraumatized (regarding an event that, at the time of the hearing, Yale has not established to have occurred), the accused student not only cannot cross-examine the accuser, but also has no right to be in the same room as she gives her testimony. The most input Yale allows the accused student is the submission of written questions for the panel to ask the accuser—if the panel chooses to do so. In essence, the accused student is found responsible for committing sexual assault if three of the five committee members find it more likely than not that a violation has been shown (usually, that the accuser’s version of events is more credible than the accused’s).

Related: Yale’s Case against Montague Looks Shaky

These “formal” hearings are a paragon of due process when compared to the second avenue for Yale accusers to present their complaints. Under an “informal” process, which Yale used in about a dozen cases in 2011–2012, the accused student has no right to present evidence of his innocence; indeed, in at least one case, the accused student was not even informed about the specifics of the allegations against him.

Yale Deputy Provost Stephanie Spangler justified this procedure by explaining that the university’s “goal is to achieve a resolution that is desired by the [accuser] and acceptable to the [accused].” Further, one goal of the university process is to help accusers “regain their sense of well-being.”

It is impossible to know what goes on behind closed doors, and perhaps the only real protection for a student accused through the informal process is a promise that the process will remain confidential. But in at least one high-profile case—that of former Yale quarterback Patrick Witt—an unknown party leaked the existence of a complaint first to the Rhodes Trust (Witt was under consideration for a Rhodes Scholarship) and then to The New York Times, which produced a front-page story that failed to describe the guilt-presuming procedures under which he was charged. There was no indication that Yale ever investigated, much less punished, the person or persons who broke the university’s rules and shared the information about Witt’s case. When he wrote about the experience several years later, Witt recounted that Yale’s policy “almost ruined my life.”

Witt was the first of many accused students victimized by Yale’s new policies. For at least a year, the university’s definition of sexual misconduct was so broad as to include “emotional or economic abuse” by “roommates.” In one instance, a student was found not guilty but was nonetheless punished by the university, which ordered him to take “sexual consent training,” and on several occasions, Yale undertook investigations based on anonymous complaints, raising concerns that the new Title IX process could be used for revenge or ideological targeting.

Related: Accused, Expelled, and Smeared as a Rapist—at Yale

Among the faculty, an unknown male professor was subjected to a sexual harassment complaint from a female colleague. Yale investigated by speaking to the accusing professor and to the department chairman—but never informing the accused professor that charges had been filed against him, thereby robbing him of an opportunity to defend himself. The inquiry ended with the department chairman formally monitoring the male professor for an indefinite period. This incident produced scant public dissent among the faculty.

Case Study #2: Amherst College

As occurred with the fraternity pledge incident at Yale, a single event triggered Amherst’s explosion of Title IX activism. In October 2012, a former student named Angie Epifano penned a lengthy recollection of her experience as a self-described survivor of sexual assault. In May 2011, she wrote, a student acquaintance raped her. She did not report the incident to police, nor did she want the case adjudicated by a campus tribunal: “No thank you, I could barely handle seeing him from the opposite end of campus; I knew I couldn’t handle that level of negativity.”

Epifano alleged shocking treatment from Amherst administrators. She claimed that the college’s sexual assault counselor, Gretchen Krull, told her not to report the crime and instead advised her to “forgive and forget.” Soon thereafter, an Amherst dean, concerned about the student’s mental health, denied her request to study abroad in Africa. The dean allegedly informed her that “Africa is quite traumatizing, what with those horrible third-world conditions: disease…huts…lions!”

A campus administration committed to the truth might have asked some hard questions about Epifano’s veracity. On a campus already known for its political correctness, for an unidentified dean to have made disparaging remarks about Africa seems extraordinarily unlikely.

Related: Railroading the Innocent in Cincinnati

On October 18, 2012, Amherst President Carolyn “Biddy” Martin uncritically accepted Epifano’s presentation of events as “horrifying” and promised “consequences,” either with “procedures or [with] personnel.” Within a few days, Gretchen Krull had resigned, with some speculating that she had been made a scapegoat. Martin then appointed an eight-person committee to develop a new sexual assault adjudication procedure. A professor of women’s and gender studies chaired the panel, whose only other faculty member specialized in African–American literary and cultural studies; a campus activist addressing the issue of rape, Liya Richtman, represented student views.

Future Know Your IX co-founder Dana Bolger, an Amherst student, hoped that the policy change would create a new culture on campus, since “we have all, at some time, in some way—through our jokes, our questions, our arguments—silenced a survivor” and “at some time, in some way, exerted our respective privileges—male, white, heterosexual, disgendered, able-bodied—to silence our peers.” The idea that 21st century Amherst College is dominated by white, heterosexual, male privilege suggests an unusual interpretation of reality. The type of guidelines developed in this ideological mess was unlikely to treat any accused student fairly, but it remained unclear whether Amherst’s new policy was so one-sided as to prevent even an innocent student from defending himself.

For several months, despite the claims of activists that Amherst was a campus awash in sexual assaults, no cases were filed to test the new system’s scope. Then, in late 2013, Amherst got its first post-Epifano claim.

In a column published in June 2015, Washington Post blogger Radley Balko wondered why so many high-profile campus rape allegations have proved to be unfounded. He offered several reasons, including the following:

It may be that activists deliberately seek out and champion the ambiguous cases to demonstrate their commitment to the cause. This is pretty common among ideologues. (I see it often among my fellow libertarians.) You show your bona fides by taking a hard line even on those issues, incidents and scenarios that scream out for subtlety. You see this in some of the reform proposals put forth by anti-campus rape activists, such as laws requiring explicit consent before each progression of sexual activity or in staking out absurd positions such as “drunk sex is always rape.”

Balko could have been describing the Amherst case, which arose out of an incident in February 2012. Following an apparently consensual sexual encounter with another student, the female accuser apparently had a change of heart. She also eventually fell in with a new group of friends: many of the campus activists addressing the issue of rape who were energized by the Epifano essay. By fall 2012—inspired, she wrote, by Epifano’s article—she published an essay at AC Voice, a webzine for which several in the group wrote. The female accuser now reinterpreted the incident of the previous semester as a sexual assault in spite of the fact that most of the accuser’s anger appeared to be directed not at her alleged assaulter, but instead at a “former friend” who had treated her contemptuously after discovering who the accused man was.

Related: How Title IX Became a Policy Bully

The female student waited for another year before filing a sexual assault claim at Amherst, and the investigation and adjudication of the case showcased the unfairness of the college’s new policy—which, to be clear, is typical of how most schools now handle the issue. A hired investigator spent a day on campus interviewing witnesses; when asked whether she had any text messages or e-mails about the incident, the accuser said that she had none. During the hearing, the accuser admitted that she had texted after the incident, but none of the panelists asked her to explain why she had told the investigator otherwise. To corroborate her assault claim, the accuser said that she had invited someone over to her room after the incident to talk and comfort her. None of the panelists asked the identity of this mystery witness, who had not been interviewed by Amherst’s investigator.

Moreover, the accused student could not raise these questions effectively: Prohibited from having a lawyer by his side in the hearing, he was required under Amherst’s new rules to submit written questions for the accuser before the hearing. As legal blogger Scott Greenfield has noted:

Submitting questions isn’t a particularly effective way to confront an accusation. Questions beget answers, and answers beget more questions. Putting aside whether [the accused student] is adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.

The accuser said that she had consented but in the middle of the process had revoked that consent; the accused student said that he was too drunk to recall anything that happened. This portrayal of events was enough for the panel to find the accused student responsible. Amherst promptly expelled him.

Related: Why ‘Yes Means Yes’ Rules Can’t Work

The accused student hired a lawyer who subsequently uncovered considerable evidence undercutting the accuser’s credibility, including post-incident text messages (which the accuser had implied to Amherst’s investigator did not exist). Any fair investigation, of course, would have discovered this at the time. Amherst’s response? The accused student had failed to uncover this information within seven days of the disciplinary hearing, so he was now out of luck.

The student filed a federal lawsuit, which remains pending. In that lawsuit, Amherst has contended that the process worked as the college intended in this case.

Case Study #3: University of North Carolina at Chapel Hill

While Amherst was finding an innocent student responsible for rape, another incident occurred at the University of North Carolina at Chapel Hill (UNC). Inspired by the activities at Amherst and Yale and in constant contact with the accusers there, she later told The New York Times, a student named Andrea Pino stepped forward.

Pino claimed that in March 2012, another UNC student raped her at an off-campus party. (Because she has admitted that she had never seen the man before that evening and never saw him again, she left it unclear as to how she concluded that her attacker attended UNC.) Pino elected not to report the alleged assault to police, nor did she file a complaint through the university because, she later said, unnamed other students doubted that it would do any good. Instead, Pino went to a UNC academic employee about her plight, and this person allegedly told her she was lazy.

The identity of the unnamed figure who made the “lazy” remark has shifted depending on the reporter interviewing Pino. According to Inside Higher Ed’s Allie Grasgreen, Pino said that “an academic adviser told her she was lazy when her experience impacted her performance in the classroom.” ESPNW’s Allison Glock, on the other hand, quoted Pino as saying that “when I explained to a professor what was happening and how it was affecting my grades, I was told I was lazy, and it was suggested that maybe I couldn’t handle Carolina.”

Related: Ten Campus Rapes—Or Were They?

Neither Grasgreen, who identified the “lazy” comment as coming from an academic adviser, nor Glock, who quoted Pino as attributing the remark to a professor in one of her courses, appears to have reached out to the unnamed academic adviser/professor for comment on whether Pino’s story was actually true. Nor did the documentary filmmakers responsible for The Hunting Ground, which presented Pino’s tale uncritically. Again, it is very unlikely that a UNC professor or academic adviser, having been informed by a student that someone had raped her, would respond by calling the student lazy.

As Pino was portraying herself as victimized by a gender-hostile administration, UNC was actually revising its policies to make it easier for students like Pino to see their alleged attackers found guilty. In 2012, the university removed sexual assault cases from the jurisdiction of its Student Honor Court and turned them over to a special new panel that handled only allegations of sexual assault, claiming that students could not be sufficiently trained to handle such cases fairly. Given the timing, however, this decision appears more likely to have been motivated by a desire to accommodate the OCR’s “Dear Colleague” letter, since the move allowed UNC to shift its burden of proof in sexual assault cases (and only in sexual assault cases) from the Honor Court’s standard of beyond a reasonable doubt to a preponderance of the evidence, something required by the letter.

Melinda Manning, an assistant dean of students, rejoiced at the abandonment of a policy that discouraged “victims” from coming forward. Summarizing the dean’s views after an interview,Inside Higher Ed’s Allie Grasgreen reported Manning’s view that the earlier system discouraged reporting by “requiring victims to be judged by a roomful of peers.” Of course, a university disciplinary system judges the accused students, not the accusers, and administrators should know better. Manning resigned the following year, claiming that unnamed UNC administrators had pressured her to underreport rape claims; the university fired back with a document claiming that Manning had underreported filings. The ex-dean joined several accusers in filing a Title IX complaint against UNC. As with all such documents, the OCR declined to make the filing public, and contemporaneous press reports suggested alternatively that it was damning or frivolous.

In any event, UNC spent nearly $200,000 on a consultant to rework its Title IX mechanisms and hired seven new staff employees to deal with the matter at an annual cost of around $500,000 before unveiling yet another new sexual assault procedure, this one even less friendly to the rights of the accused than the preceding one. By this point, North Carolina had passed a law requiring colleges to permit students accused of disciplinary offenses to have access to a lawyer. (North Dakota is the only other state to have such a law.) An investigator, hired and overseen by the Title IX office, is not compelled to share his or her evidence with the accused; he or she must only produce a draft of his or her report, effectively precluding the accused from offering exculpatory material during the process. Only under limited circumstances can the accused student introduce new evidence at the hearing.

The accused student’s attorney can examine a draft of the investigator’s report, but only by coming to UNC and promising not to photograph or copy the report. Once the hearing begins, the accused student’s lawyer, as dictated by state law, may attend it but may not cross-examine the accuser; he or she may only submit questions to the hearing chairman, who can ask the questions, modify them, or simply move on. The hearing procedures guarantee neither that the lawyer can even see the accuser as she gives her answers nor that he or she can cross-examine other witnesses.

The new procedures maintained the lower preponderance-of-evidence standard, but even though the OCR is silent on the issue of unanimous findings, UNC now allows a student to be, in essence, found responsible for committing sexual assault based on a two-to-one vote of the disciplinary panel. The guidelines do not explain why the university followed this course.

Even after a student graduates, he can still be sanctioned by UNC. The school allows the filing of anonymous reports of sexual assault to “help give university administrators a better picture of the number of assaults that are occurring within the university student community.” The policy’s wording suggests that the university simply assumes that the assault has occurred, based solely on the anonymous filing. UNC’s policy also has no equivalent of a statute of limitations, a deficiency that allows for the filing of complaints years after the alleged event even when both the accuser and the accused are no longer students at the school. Among elite universities, only Harvard has such an open-ended policy, which raises the question of whether a university could use a years-after-the-fact sexual assault claim to revoke a degree.

Case Study #4: Occidental College

On the West Coast, the most aggressive Title IX activism has been at Occidental College. As at UNC, Yale, and Amherst, Occidental appeared to have a disciplinary structure that denied meaningful due process to the accused. Well before “affirmative consent” laws were enacted in California, Occidental policy maintained that a student who obtained such consent could nonetheless be deemed a rapist. Many have criticized so-called affirmative consent policies as unrealistic and damaging. The college’s sexual assault policy denied the accused student a right to counsel in the proceedings while informing him that terms like “innocence” and “burdens of proof” were “not applicable.” A healthy majority of the undergraduates—currently 56 percent, with 57 percent in the most recently admitted class—are women, and 50 percent of the college’s professors are women.

Nonetheless, according to a small group of campus activists, the school turned a blind eye to sexual assault on campus. In 2013, a handful of self-described survivors, joined by faculty members Danielle Dirks and Caroline Heldman, formed a group called the Oxy Sexual Assault Coalition, or OSAC, which denounced the “yes-might-not-mean-yes” policy as insufficiently protective of accusers. The group adopted a tagline of “because rape is a crime”—even as Dirks (speaking, she said, “as a criminologist”) announced that she had “given up on the criminal justice system.”

OSAC had a preference for adjudicating sexual assaults through college tribunals, even though these assaults would usually be felony offenses in the criminal courts. As explained by Dirks, “College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.” Celebrity attorney Gloria Allred involved herself, representing several Occidental students who filed Title IX complaints against the college, which quickly settled.

The college attracted national attention after expelling a student for rape—despite a police report concluding that no rape had occurred and despite text messages from the accuser checking on whether the accused student had a condom and telling a friend, “I’m going to have sex now.”]Occidental reached this decision by contending that while both students were intoxicated, the female student’s drunkenness rendered her unable to consent to intercourse that her own text messages showed she had initiated.

By comparison, even Yale’s “expansive definition of sexual assault” appears to exclude the kind of behavior that Occidental deemed rape. Yale’s guidelines cite an instance of the parties’ “send[ing] a few texts” discussing their plans for intercourse and then confirming those plans once they arrived in the bedroom as an example of “consensual sex.”

In an essay for the Harvard Law Review, Harvard Law professor Janet Halley criticized the “pressure on schools to hold students responsible for serious harm even when—precisely when—there can be no certainty about who is to blame for it. Such calls are core to every witch hunt.” In 2013, the number of reported sexual assaults at Occidental increased from 10 (in 2012) to 60. This figure meant that Occidental alone, with a female enrollment of just over 1,100, accounted for 40 percent of the total increase in reported sexual assaults at all of California’s four-year public and private colleges and universities. As attorney Mark Hathaway has noted, Occidental’s rate of reported sexual assaults in 2013 was 16 times higher than that of the next 10 California colleges and universities combined. It could be, of course, that this Los Angeles liberal arts campus is a statistical anomaly and that it really is very dangerous, but such an interpretation seems very unlikely.

Conclusion

Campus activists addressing the issue of rape have assiduously conveyed the impression that such institutions as Yale University, Amherst College, the University of North Carolina, and Occidental College are led by administrators who ignore widespread criminality. Sexual assaults on college campuses do occur and are a serious issue, but justice requires procedures that afford due process both to accusers and to the accused. Yet even before the OCR’s “Dear Colleague” letter, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

(Reprinted with permission from the Heritage Foundation)

Another Unbalanced View of Campus Sex Hearings

Monday’s Chronicle of Higher Education featured an article by Sarah Brown, a very one-sided article,  on a gathering dealing with campus efforts to cope with sexual assault. It reviewed

a federally-funded program, the National Center for Campus Public Safety, to better train colleges in adjudicating allegations of sexual assault. “I want to get this right,” Brown quoted one investigator, articulating her strategy for interrogating accused students.

But the article, in fact, portrayed a gathering in which there seemed to be little interest in getting it right.  It shows no interest in fairness to the accused.

Related: Campus Surveys Inflate Rape Statistics

The piece doesn’t list any defense lawyers as speakers. It doesn’t appear as if anyone from FIRE or any other group devoted to academic civil liberties was invited to speak. Of course, a meeting of (say) the National District Attorneys Association might not feature such speakers, either. But the college process—supposedly—isn’t prosecutorial (one reason why colleges claim it’s OK to exclude lawyers from meaningful participation, and not to have discovery). It’s a neutral search for the truth. So why would a federally-funded organization, amidst a conference that wanted to “get this right,” hear only from those involved on one side of the process?

The dangers of one-sidedness appeared in Brown’s discussion of a panel entitled, “Interviewing the Respondent.” Brown paraphrased the advice given: “Ask about the (accusing) student’s background — where they’re from, what they do outside of class, and where they spend time on the campus. Ask about witnesses. Seek evidence, like text messages and social-media accounts.” She then quoted from one of the presenters, waiving a smartphone: “These are little miracles for corroboration.”

What’s missing from this is that the burden of proof is on the accuser, not the accused. (The article contained no mention that Margolis Healy, a campus safety firm, and its solicited presenters urged that investigators force accusers to provide electronic evidence that corroborates their claims—or recommended asking accusers how they spent their time on campus, or what they did outside class. Indeed, such questions almost certainly would yield a strong attack from groups like Know Your IX.) Moreover, one of the greatest shortcomings of the college process is that it lacks the legal power to obtain such evidence. An accuser making a false allegation, or a guilty accused student, will simply refuse to provide evidence that contradicts their version of events. And the school can do nothing.

More striking was the information Brown’s article didn’t contain. She mentioned that Margolis Healy coordinated the National Center for Campus Public Safety through a federal grant, but (oddly) didn’t reveal the amount of the grant. According to USAspending.gov, through the end of 2015, Margolis Healy has received $5,854,732 in taxpayer funds, with the grant scheduled to continue until April 2017. The total grant thus seems to exceed $8 million.

Related: Weaponizing Title IX at Middlebury

And what sort of training does Margolis Healy provide? Brown’s article doesn’t say. I’ve previously looked at Margolis Healy’s unusual approach to training, in the context of its training of Middlebury’s sexual assault investigators. The training heavily relied on the discredited David Lisak; instructed Middlebury officials that they must “start by believing” the accuser (they weren’t supposed to use terms like “accuser” in their reports); and held that the investigator’s report “should not include . . . consensual language” or note that the “victim has inconsistencies with her story.” But what if the accused student wasn’t guilty, and the inconsistencies of the “victim” would prove the accused student’s innocence? That outcome doesn’t appear to have crossed the minds of the Margolis Healy trainers.

After the Middlebury piece appeared at Minding the Campus, Margolis Healy removed its training slides from the web. It would seem that—for around $8 million in taxpayers’ funds—the public has a right to know how, specifically, this firm trains colleges to reach the “truth” in sexual assault claims.

What The Rolling Stone Affidavits Show

University of Virginia dean Nicole Eramo’s lawsuit against Rolling Stone has produced hundreds of pages of documents on how the botched article about University of Virginia came to be published—and how UVA employees handled sexual assault claims.

Rolling Stone Rape Charge
False rape charges

Last week, Rolling Stone filed affidavits and notes from the key people involved in the project. I’ve provided excerpts from the affidavits of reporter Sabrina Rubin Erdely, editor Sean Woods, and fact-checker Liz Garber-Paul. Robby Soave has an excellent article with five take-aways from the material; Ashe Schow offers commentary. I recommend both pieces. In addition, a few items:

Rolling Stone’s defense is based on two points, which appear in all three affidavits: (1) that everyone at the magazine believed the accuser, “Jackie,” and had reason to do so; and (2) key people involved in sexual assault adjudications at UVA believed Jackie as well.

There’s no doubt that Erdely, Woods, and Garber-Paul believed Jackie. There’s also no doubt that each of them were ideologically inclined to believe Jackie. (Erdely, for instance, opened her “reporting” by speaking with the biased experts Wendy Murphy and David Lisak, and all of her interview subjects appear to have been people who agreed with her on the existence of a campus “culture of rape.”) Rolling Stone’s groupthink meant that every inconsistency in Jackie’s story, or unusual behavior on her part, was explained away as “consistent with other victims of sexual assault.”

And so behavior that might have raised red flags—Jackie claiming that her attacker would retaliate against her if Erdely contacted him (while she didn’t worry about retaliation once the article appeared); Jackie discouraging Erdely from contacting friends who could corroborate her tale; Jackie changing the number of assaulters—was dismissed or excused.

The only problem, of course, is that Jackie was a fabulist. Rolling Stone’s argument that the behavior of an actual victim and the behavior of someone inventing a gang rape are identical should raise significant concerns about the always-believe-accusers mantra.

Second, the Rolling Stone affidavits make clear that campus activists, and every UVA employee dealing with sexual assault matters that Erdely encountered, also believed Jackie. Rolling Stone highlighted the point for legal reasons: if all of the UVA apparatus, including Eramo, believed Jackie, how can Eramo sue Rolling Stone for publishing an article based on Jackie’s fantasies?

From the standpoint of policy, however, this material is chilling: if the UVA sexual assault bureaucracy believed that someone like Jackie was a victim, how could the process of which they’re a part possibly be fair? Ironically, since Rolling Stone, UVA’s policy has only grown more unfair, as the recent FIRE lawsuit indicated.

In this respect, Erdely actually had a great story—how a campus atmosphere of moral panic was exploited by a fabulist. But she was too closed-minded to see it.

Third, it’s striking that even as their case collapsed, those who Jackie had fooled didn’t change their underlying assumptions. Erdely, for instance, stated in her affidavit that he she had any sense that Jackie might be lying, she simply would have used another vignette to prove her campus “rape culture” thesis—without even stopping to wonder whether her initial assumptions, which had led her to trust Jackie, were wrong. Sara Surface, a UVA activist, told Erdely that Jackie was no longer credible—but rationalized, “I think trauma has done something to the details.” A few days later, another UVA activist, Alex Pinkleton, reminded the Washington Post that “the majority of survivors who come forward are telling the truth.” Pinkleton didn’t explain how the minority—who, by her framing, were not telling the truth—could be “survivors.”

And, perhaps, my favorite item from the affidavits: Editor Sean Woods said, “I stand by the statement that we verified the perpetrator’s existence.” If the case goes to trial, perhaps Rolling Stone could summon Jackie’s invented attacker, “Haven Monahan,” as a witness?

Georgetown’s Survey Stokes the Rape Panic

Both campus rape activists and their political allies—such as Kirsten Gillibrand—have consistently championed “campus climate surveys,” which they claim are necessary to provide more data about the purported epidemic of violent crime sweeping the nation’s campuses. It’s hard to argue against more data. But these surveys always are incomplete—they never ask about campus attitudes toward due process or what rights accused students should have. Moreover, their vague questioning seems designed both to confuse attitudes as to what sexual assault is, and to intensify the panicked attitude on campus. A recent survey at Georgetown accomplished both goals.

Related: Campus Surveys Inflate Rape Statistics

The survey’s topline, stressed by Georgetown president John DeGioia: “Thirty-one percent of female undergraduate students report having experienced non-consensual sexual contact.” If true, this finding, which would represent around 780 undergraduate students alone (although nearly one-third of this total indicated their victimization occurred off-campus at a location not affiliated with the university), would suggest that the Georgetown campus is the center of violent crime in DC’s Second Police District (the area within 1500 feet of Georgetown’s campus had only 19 reports of violent crime in the last two years).

Surely President DeGioia and the DC Police are engaged in intensive discussions to address the threat; perhaps a task force will be appointed? If so, the press release from Georgetown contains no indication. In fact, there isn’t a single known case of a campus climate survey leading to a university leader demanding an increased police presence to protect his or her institution’s students. This approach doesn’t fit the agenda of a movement that wants “#copsoffcampus.”

From this survey, Georgetown has promised multiple levels of action—including focus groups, a task force, required annual training for all students, and a new resource campaign. Presumably this will all cost (including staffing) hundreds of thousands of dollars annually.

As often occurs in surveys on this topic, female respondents outnumbered male, roughly 3-2. Georgetown weighted the survey for the actual total of Georgetown students without taking into consideration that the gender skew might have led to skewed results. Indeed, as occurred with the AAU surveys, internal data suggests such skewing. 22.8 percent of female undergraduates who say they experienced nonconsensual sexual contact by force say they reported this incident to the university.

The figure for female undergraduates who say they experienced nonconsensual sexual contact by force was 13.9 percent. According to the survey, that would mean just under 100 students made such a report. Yet according to the Clery Act database, only 25 students made such a report in the 2011, 2012, and 2013, and 2014 calendar years. This data would suggest that students who made a sexual assault report to Georgetown were substantially over-represented in the survey.

Related: Education Dept. Rules on Campus Rape Called Illegal

The data on the non-reporters was equally revealing. Around 77.2 percent of students who say they experienced nonconsensual sexual contact by force say they did not report the incident to the university. Of that total, more than 60 percent said they didn’t report because they believed what happened to them wasn’t serious enough. Perhaps large numbers of Georgetown undergraduates don’t believe sexual assault is serious. Far more likely: these students don’t consider themselves victims of sexual assault.

So what does the survey contain?

Some of the questions Georgetown asked students reflected the normal pattern of the campus sexual assault movement—framing the offense as far broader than its legal, or cultural, understanding, as a way of jacking up the final numbers. For instance, consider a question asked under the heading of “Bystander Intervention upon Witnessing Sexual Assault or Sexual Misconduct by Gender and Enrollment Status.”

77.1 percent of female undergraduates said they had “witnessed [a] drunk person heading for sexual encounter.” Consider the oddity of this question—part of a survey, recall, that’s producing enormous activities by the school. First, it asks students (who, given the context, might well have been somewhat drunk themselves) to judge the intoxication level of another student. Second, it then asks these students to anticipate what another student might or might not do. Finally, sex while drunk likely doesn’t constitute sexual assault, unless the student was incapacitated. So why is Georgetown classifying this question under “witnessing sexual assault”?

Did You Witness a Criminal Act?

At another stage, Georgetown asked whether respondents had “witnessed someone acting in sexually violent or harassing manner” (just under one-third of female undergraduates, listed as 2508 in the survey, said yes).  But these are two entirely different things—witnessing sexually violent behavior means asking whether the student witnessed a criminal act. Sexual harassment, while deplorable, isn’t criminal. Why did Georgetown choose to combine these two concepts?

The survey shows that some students appear to place themselves in very dangerous positions quite often. 1.3 percent of female undergraduates (which would translate to 32 or 33 students) say they have been the victim of “nonconsensual sexual penetration” four times or more as Georgetown students. Victims never deserve to be raped. But surely any responsible student life staff would want to know how so many students could have been victimized by violent crime so many times? This sort of question doesn’t appear to interest Georgetown.

Assaulted by a Faculty Member?

Likewise, more than 40 female students (1.7 percent) say they were sexually assaulted (extrapolating from the survey’s language, which always is risky) by a faculty member. Nothing in the current obsession with depriving accused students of due process rights will address this problem—which, if true, is very serious.

Around 27 percent of those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky) were victimized by someone without any affiliation with Georgetown. Nothing in the current obsession with depriving accused students of due process rights will address this problem.

More than a quarter of those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky) say they were victimized by the person they were dating. Did they continue dating this person? The survey doesn’t ask.

In about seven of ten cases involving those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky), the alleged victim had been drinking. A similar figure exists for the alleged perpetrator. Nothing in the current obsession with depriving accused students of due process rights will address the relationship between alcohol and sexual assault.

Seven of eight female undergraduates who say they experienced nonconsensual sexual penetration by force experienced no physical injuries in the process.

The Saddest Thing

Perhaps the survey’s saddest finding, however, is the following. Georgetown asked students to assess the “likelihood of experiencing sexual assault or sexual misconduct off campus at university-sponsored events.” (Leave aside the vagueness of “sexual misconduct” in the question.) Many students—at Georgetown or anyplace else—never will be “off campus at university-sponsored events.” Others will be so only in very restricted capacities—say, as a member of a (single-sex) athletics team—in ways that would make the opportunity for any type of sexual misconduct seem remote.

Yet according to the survey, 39.6 percent of female undergraduates said it was somewhat, very, or extremely likely that they would experience “sexual assault or sexual misconduct off campus at university-sponsored events.” This figure is quite likely higher than the percentage of female undergraduates who will even be “off campus at university-sponsored events.” And for most of those who do participate in such activity, it’s unlikely that more than 1 percent of their time at Georgetown would be spent “off campus at university-sponsored events.”

There’s no reason to doubt the genuine nature of this response. But the fear is an irrational one. The chances of four-in-ten Georgetown females being victims of sexual assault “off campus at university-sponsored events” would seem to be infinitesimal. The logical response of a university leader to signs of panic among his student body would be to soothe his students. Instead, DeGioia, like almost all other university presidents, has chosen to stoke the panic.

Problems in the Stanford Sexual Assault Case

In a recent op-ed in the Washington Post Stuart Taylor, Jr. and I discuss the Brock Turner case at Stanford. We argue that the case proves that campus felonies like sexual assault are better handled by the criminal justice system than by campus tribunals—in no small measure because the public can have confidence in the Turner verdict in a way that would have been inconceivable with Stanford’s notoriously one-sided campus disciplinary process. The case thus gives the lie to campus rape groups like Know Your IX and their academic supporters, such as Stanford Law’s Michele Dauber, who have attempted to delegitimize the role of the police in handling campus felonies, at least when the felony is sexual assault.
A few other points from the case that deserve a mention:

  • The 6-month sentence imposed on Turner (along with a lifetime requirement that he register as a sex offender) has triggered a severe backlash. Given the backlash, as Jason Willick first pointed out, it’s very difficult to comprehend the far more restrained response to the 6-month sentence imposed on former Baylor football player Sam Ukwuachu. By virtually any measurement, Ukwuachu’s case (which, like Turner’s, also received extensive media attention) was more severe: the nature of his assault appears to have involved more violence; alcohol does not seem to have played any role in his crime; he seemed to have had a pattern of treating women violently; and he had no remarks comparable to Turner’s expression of remorse. Yet there was no national campaign to recall the judge in the Ukwuachu case, nor was his photograph regularly used in social media with a “rapist” theme.It would be interesting to hear from the accusers’ rights movement, and their media and academic allies, why they responded to the two sentences so differently. (I also agree, by the way, with the inappropriateness of the recall campaign against the judge, though I consider the sentence for Turner—like the sentence for Ukwuachu—too lenient.)
  • Before the judge issued his sentence, Michele Dauber, law professor at Stanford, wrote a letter to the judge demanding that Turner spend more time in jail than what the probation office recommended. Dauber said that she wrote because of her expertise on the issue—without revealing that she had previously disparaged the ability of the same prosecutor’s office that successfully tried Turner to handle campus rape cases.In her letter, Dauber conceded (correctly) that “the facts here are in some ways especially egregious when compared with many other assaults on campus.” She cited the public nature of the crime, and the fact that Turner and his victim were strangers. Just over a page later, however, Dauber suggested that “at Stanford, assaults that are very similar to this case are unfortunately all too frequent.” [emphasis added] Really? Cases similar to public assaults of strangers are “frequent” at Stanford?
  • In her letter, Dauber asserted, remarkably, that students who have committed sexual assault at Stanford “typically have participated in athletics.” [emphasis added] She cited no evidence for this claim. Given that the data on which such a claim could be based is confidential, Dauber either: (a) simply misled a judge; or (b) inappropriately revealed protected information. I’d bet on (a).
  • The Stanford Law professor justified her demand for a lengthier sentence (it’s worth pausing to consider the extraordinary nature of a high-profile left-wing law professor writing a judge to demand a sentence for a convicted criminal longer than the probation office recommended) by citing deterrence. It’s not clear why potential Stanford rapists would be deterred by seeing a classmate get a three-year sentence (plus lifetime as a sex offender, loss of a degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist) but would not be deterred by seeing a classmate get a six-month sentence (plus lifetime as a sex offender, loss of a college degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist). Dauber did not explain how she reached her deterrence evaluation.
  • Dauber concluded by claiming that “Turner will have plenty of opportunity to finish his education.” It’s not clear what academic universe she lives in, but it’s hard to believe (and for very good reason) that many universities will accept a convicted sex criminal who has a lifetime obligation to register as a sex offender. But—much like Jared Polis in his infamous 2015 remarks—it’s critical for figures like Dauber to keep alive the myth that colleges routinely admit students found guilty of sexual assault.

Campus Surveys Inflate Rape Statistics

Calls for additional or new “campus climate surveys” have been a regular feature the post-2011 war on campus due process. The White House has produced a template that colleges can copy. The Gillibrand/McCaskill Campus Safety and Accountability Act (co-sponsored by such Republicans as Marco Rubio, Charles Grassley, and Kelly Ayotte) contains a provision seeking to make such surveys mandatory. Given the Obama-Gillibrand-McCaskill-Rubio record on campus due process, it should come as little surprise that something the four of them want is problematic.

Though often billed “campus climate” surveys, these polls do little of the sort. They never ask, for instance, whether students understand the specifics of their campus adjudication system’s procedures (such as the preponderance of evidence or the lack of meaningful legal representation). Nor do they seek to ascertain student attitudes toward due process matters at the school—a topic that should be obvious if the real goal were to get a sense of the “campus climate.” And, of course, their anonymity ensures that climate surveys deal only with allegations of sexual assault, and provide no way of testing their accuracy.

The White House template suggests that universities survey “perceptions” of “attitudes” among students regarding sexual assault. (If perceptions and attitudes are all that’s required, it makes the exclusion of questions about due process all the more puzzling.) White House guidance strongly discourages schools from asking students if they were raped or sexually assaulted, instead asking for behaviors that the school’s researchers can then re-interpret as sexual assault. This list is so broad as to include “sexual contact” while “drunk.”

For students who didn’t report such incidents, the template asks them which of twenty-four possible reasons explains why they didn’t report. The possible answers include such duplicative items as “didn’t have time to deal with it due to academics, work” and “had other things I needed to focus on and was concerned about (classes, work)” or “I thought nothing would be done” and “didn’t think the school would do anything about my report.”

Beyond the limited array of questions, the surveys suffer from another fatal flaw—in the current campus environment, they aren’t really designed to solicit information. Instead, their primary goal appears to be to confirm preexisting beliefs about the existence of a campus sexual assault epidemic.

Consider the reaction to a recent Stanford survey. It revealed that 1.9 percent of Stanford students said they had been sexually Assaulted. This figure (which would translate to around 160 sexual assaults, given the university’s enrollment) would make the Stanford campus the violent crime capital of Palo Alto, which in the last five years has averaged around six rapes or attempted rapes annually. Nonetheless, it generated fury from Stanford campus activists, led by the anti-due process law professor, Michele Dauber—who seemed outraged that it didn’t return the preferred 1-in-5 figure.

In response, students passed a non-binding resolution demanding a new survey, which would presumably return a higher figure of sexually assaulted students. A group of Stanford alumni penned a letter threatening to withhold financial donations to the university unless Stanford conducted an “improved survey” that used the methodology of the AAU. The signatories included Stanford Ph.D. Paul Gowder, whose dismissal of campus due process was previously eviscerated by Scott Greenfield.

The AAU’s 2015 survey, which my colleague Stuart Taylor strongly critiqued, returned a figure suggesting that the campus sexual assault rate was roughly the same as (and perhaps even higher than) the rape rate in war-torn areas of the Congo, where rape is used as a weapon of war.

What’s the purpose of a survey if activists already know the result they desire? It clearly isn’t to discern information. Instead, the goal at Stanford—just as with Gillibrand and McCaskill—is to generate apocalyptic figures, which then can justify the diminution of due process.

Accused, Expelled, and Smeared as a Rapist—at Yale

The case of Yale basketball player Jack Montague, who was expelled from Yale, allegedly because of a rape charge, has gotten a lot of press in the last few days. At this stage, I know nothing of the facts of the case, but I do know that Montague has lawyered up and his father told the Daily Mail that he can’t wait to tell the other side of the story. There are several concerns that deserve mentioning:

(1) The fiction of the college disciplinary process is that it addresses violations of the campus code, not felony offenses. Therefore, it’s acceptable for colleges and universities to deny basic due process to accused students. At Yale, that means a student accused of sexual assault has:

  • No right to the discovery of exculpatory evidence (even if the university, lacking subpoena power, stumbles upon it);
  • No right to see the full evidence upon which the university relied to make its determination
  • No right to an impartial panel (panelists receive secret “training,” which at the few universities where it has been revealed—StanfordOhio StateMiddlebury—has been guilt-presuming);
  • No right to meaningful representation by a lawyer in the disciplinary process (he can have a lawyer, but the lawyer can’t ask questions or address the panel);
  • No right to meaningfully cross-examine the accuser (questions must be submitted in writing to the panel, which can ask them or not, at its discretion);
  • No plausible right to follow-up cross-examination questions (see this Scott Greenfield post for the significance of this denial).

Again, the justification for these denials of basic due process is that no one is accusing the student of rape. How, then, to reconcile this fiction with posters that blanketed the Yale campus asking the Yale basketball team to “stop supporting a rapist” [emphasis added]?

When the alleged disciplinary offense is the same as a felony, the idea that deny due process serves the interests of fairness is preposterous.

(2) Of the media coverage of this issue, one article handled the issue responsibly. In the New Haven RegisterChip Malafronte wrote, “There is no record of an arrest or court hearing involving Montague on file with the Connecticut judicial branch.”

Every article on this case should contain such a sentence. How can someone be a “rapist” if he hasn’t even been charged with a crime—much less convicted?

Other coverage of the case (Jezebel unsurprisingly stands out here) has been far less responsible. And I very much doubt, based on how this general issue has been covered in the last several years, that many reporters will follow Malafronte’s example.

(3) Moreover, all coverage of this incident should place Yale’s policy in a specific context. First—as I’ve pointed out in many essays at Minding the Campus—this is a university whose handling of sexual assault allegations is fundamentally unfair, and seems based more on a response to moral panic than a pursuit of justice.

Second, and of particular importance for this case given the posters blanketing the campus, Yale itself has admitted (in the words of Deputy Provost Stephanie Spangler) that the university “uses a more expansive definition of sexual assault” than required either under federal law or by the Connecticut criminal code.

Yale has never explained why it chose to redefine a term commonly understood in both culture and the law. And at this stage, it’s not public what specific allegations Montague even faced. But to the extent he faced allegations that don’t fit the definition of sexual assault, and as a result of Yale’s actions he has now publicly been branded a “rapist” in campus posters, it would seem that he has suffered real harm from Yale’s peculiar use of the dictionary.

(4) In the past few weeks, a lawsuit against the University of Tennessee and continuing controversy at Baylor have both shown that, in specific contexts, star athletes appear to get special treatment in sexual assault allegations.

But most accused student-athletes aren’t football or basketball players at Power Five conferences, and I know of no evidence that accused student-athletes in any other context get treated any better than the typical accused student. That is: they, too, are subjected to the kind of due process-unfriendly procedures that Montague apparently experienced.

Montague’s case is a reminder that in one important respect, accused student-athletes get worse treatment than the typical student. Perhaps the only meaningful protection for an accused student in the college disciplinary process is its secrecy—their chances of a not-guilty finding aren’t good, but at least the finding won’t become public.

But for athletes, as former Yale quarterback Patrick Witt and now Montague have discovered, maintaining that secrecy is much harder than for a non-student-athlete. In Montague’s case, because he was in the public eye, his departure from the team unsurprisingly raised questions that would not have been asked in the case of another student.

(5) In an official statement, Yale unsurprisingly (and appropriately in this instance) shielded itself behind FERPA and declined comment.

But, incredibly, an agent of the Yale administration took a different course. As quoted by Malafronte, the Yale Women’s Center released a public statement purporting to “speculate” and then adding: “[W]e can comfortably say that, should all of this be true, this is progress. It seems that a survivor felt that coming forward was a viable option and that they got the decisive outcome that they likely fought hard for . . . Though we can only speculate as to the intent behind the basketball team’s shirt protest, the team’s actions appeared to be a dismissal of the very real threat of sexual violence.”

In other words: an official Yale agency all but confirmed that Montague was expelled for “sexual violence.”

Between the publication of the Register article and this morning, someone (Yale’s general counsel, perhaps?) appears to have spoken to the Women’s Center, which released a modified statement “recogniz[ing] that FERPA and Yale policy prohibit Yale from commenting on the exact nature of any specific incident.”

But the Women’s Center has already commented. Its comment all but confirmed the rumors. And that comment, along with the harm it caused, can’t be undone.

The revised statement contains no apology to Montague.

Yale’s Imaginary Crime Wave

Yale is the only university that regularly issues reports on its handling of sexual assault complaints, the result of a 2012 resolution agreement with the Office for Civil Rights (OCR). The university is also unusual in reporting so many sexual complaints, the result of its peculiar decision to broaden the campus definition of “sexual assault” beyond all recognition.

The newest of these reports, issued as always by Deputy Provost Stephanie Spangler, has now appeared. And, as always, Spangler notes that Yale has chosen to redefine “sexual assault,” attributing to the term “broad ranges of behavior” that neither the criminal law nor common cultural understanding would define as sexual assault. Yale has never offered a convincing explanation for why it pursued this course, but the strategy does inflate the numbers, thereby helping to feed the current moral panic on campus.

The Odd Sexual Accounting at Yale

Previous reports have revealed such items as:

The number of sexual assault allegations for the second half of 2015 was considerably higher than for the first half, but Spangler says this development should have come as no surprise, given the results from a 2015 survey of the Association of American Universities. (Both Stuart Taylor and I picked apart the dubious methodology of the AAU survey. For a shorthand version: the survey wildly oversampled female students who said they reported a sexual assault allegation to their college, thereby creating an unrepresentative sample of the overall student body.) But to Spangler, AAU is gospel. “We know,” she writes, “from the AAU Survey results that prevalence rates are high and many experiences go unreported.”

Related: A One-Sided Conference on Sexual Assault

According to the Spangler Report, the Yale campus was a hotbed of violent crime between July and December, with 20 undergraduates and four graduate students reporting that they had been sexually assaulted. For Yale’s female students, these totals alone would suggest an annual violent crime rate (1.4 percent) comparable to that of Oakland, which the FBI listed as the nation’s third most dangerous city in 2014.

Surely, a crime epidemic of these proportions would have triggered Yale President Peter Salovey to coordinate with state and local police to address the issue. Surely, at the very least, police patrols of this very high-crime area should be stepped up. Perhaps a police task force should be created. And Yale could review its admissions procedures to determine why the university is admitting so many violent criminals.

None of those steps has been taken, of course. Nor will they be. The fundamental tension of the campus rape moral panic is that universities simultaneously claim that they are overrun by violent crime and that state and local law enforcement must play no role in addressing the matter—since such an approach might weaken the campus kangaroo courts that activists champion. It’s all but inconceivable to imagine any other scenario in which such a cavalier approach to a purported crime wave would be tolerated.

What Yale and the Times Did to Patrick Witt

The report itself answers the question of why President Salovey does not act. A grand total of one Yale undergraduate actually filed a complaint that went to the University-Wide Committee (UWC), the body that adjudicates campus sexual assault questions. (That case remains pending.) A second case was filed not by the student but by the Title IX coordinator—even though the Spangler Report claims that the Title IX coordinator will take action “only in extremely rare cases.”

The next two cases that went to the UWC? Both resulted in non-guilty findings—despite a procedure that’s heavily tilted toward returning a guilty outcome.

Then there’s the fifth case. Last year featured a deeply troubling scenario in which a non-Middlebury student essentially weaponized Title IX. She alleged that a Middlebury student sexually assaulted her in a study abroad program, and when she didn’t like the outcome from the study abroad program’s disciplinary process, she sent a notice to Middlebury implying she would file a Title IX complaint unless Middlebury brought the student up on sexual assault charges. Middlebury did so, employed a deeply unfair procedure, and found the student guilty. He sued, obtained a preliminary injunction, and eventually settled with the college.

At the time, I noted that perhaps the only good thing that could be said about the Middlebury case was its unusual nature. But it was a troubling precedent, since the only clear way for a college student to avoid a campus tribunal is to avoid any type of sexual contact with a fellow student.

That line seems to be breaking down. The current Spangler Report notes the following: “A Title IX Coordinator brought a formal complaint on behalf of a non-Yale student who alleged that a Yale College  student engaged in sexual penetration without consent and physically assaulted the complainant . . . The case is pending.”

There’s no indication that the non-Yale student went to police. The ostensible rationale for campus tribunals is that they set campus norms. To the extent they become absolute substitutes for the criminal justice system, providing avenues to police off-campus student behavior with non-students, the precedent is a terrifying one.

By the way, this case, too, was filed by the Title IX coordinator. So of the five cases reported to the UWC for formal resolution this past semester, two used a process that the report claims that the university employs “only in extremely rare cases.” Apparently not too rare.

Related: Expel 10 if 1 or 2 Are Guilty of Rape?

The vast majority of cases in the Spangler Report were handled informally (at least at this stage) through the office of the Title IX coordinator. In this process, the accused student effectively has no rights—but also can’t be expelled. Three of the Title IX office cases stand out:

(1) The Title IX office currently is considering a second sexual assault allegation filed by a non-Yale student against a Yale student. It’s very difficult to imagine how such a complaint does not belong before the local police rather than a Yale bureaucrat.

(2) As I’ve noted previously, the silence of the Yale faculty on this issue is especially odd, since the new Title IX regime threatens their rights as well. From the latest report comes news that a student informed a Title IX Coordinator that another Yale student reported that a faculty member made inappropriate comments in a classroom. This second-hand complaint about classroom discussion is now “pending,” under investigation.

(3) Clever students can find way to game the system. Have a tough exam coming up? Go see the Title IX office, like a Yale student who “reported that an unidentified visitor on campus made unwanted advances. The Title IX Coordinator implemented academic accommodations for the complainant.” Perhaps such advances from the unknown visitor occurred. (If the party was unknown, how did the student know it was a visitor?) But how can the Title IX investigate such a complaint to determine if “academic accommodations” are actually warranted?

Related: Let’s  Challenge the ‘Rape Culture’ Warriors

A good example of the witch-hunt atmosphere on today’s campuses is the increasing willingness of Yale students and employees to file second-hand, unsubstantiated allegations.

For instance, “an administrator informed a Title IX Coordinator that a [Yale undergraduate] student reported that an individual whom the complainant could not identify engaged in sexual touching without consent at an off-campus location.” A student informed a Title IX Coordinator that one Yale undergraduate “reported that another [Yale undergraduate] student engaged in sexual penetration without consent.” Rumor-mongering is now acceptable at Yale, as an unidentified administrator informed a Title IX Coordinator “of reports from multiple [Yale undergraduate] students that another [Yale undergraduate] student had engaged in sexual penetration without consent.”

And consider this allegation, with emphases added: “A student informed a Title IX Coordinator that an unidentified [Yale undergraduate] student reported that an unidentified [Yale undergraduate] student had engaged in sexual penetration without consent.” On what possible basis could Yale investigate this claim? And how did the reporting student possibly reach this determination?

The Spangler report lists each of the above episodes as a sexual assault. Keep that in mind when evaluating the report’s breathless statistics.

Railroading the Innocent in Cincinnati

By KC Johnson

The University of Cincinnati has a fascinating response to a recent lawsuit filed by two students alleging serious misconduct by UC and several of its administrators in sexual assault proceedings: “Even accepting Plaintiffs’ allegations as true, they received constitutional due process protections.”

Since UC informed them of the charges, and gave them a hearing, courts can do nothing—no matter the extent of the hearings’ biases, and no matter how indifferent to the truth the university was. That such an argument could come from an institution of higher learning is appalling—but, by this point, not surprising.

The lawsuit, which you can read here, involves two separate cases—one filed by a former UC undergrad (who then transferred) and the second by a former UC law student (who has since graduated). The first case involved a claim that the male student sexually assaulted two female students (in the same room). In a relative rarity in campus proceedings, the accusers also filed a complaint with police—who promptly uncovered significant evidence that undercut their stories.

No Due Process, Thanks

One claimed, for example, that she didn’t know how the male student got into her dorm, but videotape showed her standing by as the second female student signed in the male student to the dorm. She claimed not to have used marijuana, only to later admit that she had. She claimed that the male student got into her bed without her knowledge even though she had previously told police that she had undressed in front of the male student, gotten into her bed, and then he quickly joined her in bed.

The other student alternatively claimed to have been passed out and not passed out during the alleged assault, and claimed to have been passed out at a time that the police uncovered her sending text messages. Explosively, one of the detectives investigating the case testified that his colleague believed that UC had “obstructed” the flow of the investigation, seemingly to minimize the accusers’ credibility problems, and that UC’s general counsel “was trying to impede our train of thought and our investigation.”

UC nonetheless found the accused student guilty of sexual assault. It did so after an almost comically biased procedure. A UC administrator informed the accused student, “Neither party has any burden of proof.” (This assertion misstated UC regulations; even the preponderance of evidence threshold, which UC uses, imposes a nominal burden of proof on the school.) The accused student went before a disciplinary panel trained with inflammatory, unsubstantiated allegations such as, “The average rapist rapes 14 people before he ever spends a night in jail,” or “1 in 4 women will survive rape and/or sexual assault during her time in college.” See citations to the discredited David Lisak’s work on undetected rapists and misstatements of UC policy (the training asserts that consent needs to be “verbal and “ongoing,” and that the female student must be “sober,” even though UC’s actual policy contains no such requirement).

Male in Mattress Case Sues Columbia

An accompanying guide from the UC judicial office repeatedly labels accusers as “survivors” (“All reported sexual assaults will be taken seriously and every effort undertaken to assist survivors”)—even though, of course, at the time of the report, there’s an accuser and an accused, not a “survivor” and a perpetrator. Such sloppy use of language presumes a crime before any investigation occurs. It’s no wonder that since 2010, in every case for which a resolution is available, UC has found students accused of sexual misconduct guilty.

The accused student asked to record his disciplinary hearing; UC refused permission. UC policy prohibited him from directly cross-examining his accuser; questions that he submitted for asking went unexplored by the panel. The hearing panel refused to examine either the surveillance video of the students walking into the dorm or text messages from the accusers’ phones. The guilty finding seemed predetermined. He successfully appealed within the university, only to see the cases return to the same panel, which reaffirmed a guilty finding regarding one (but not, oddly, both) of the accusers.

Daniel Cummins, director of UC’s office of judicial affairs, informed the second student who was enrolled at UC’s law school that “a preponderance of the evidence burden of proof applies. Neither the complainant nor the respondent bears this burden of proof in an ARC hearing.” That UC’s chief disciplinary officer doesn’t understand what the preponderance of evidence requires speaks volumes as to the university’s unfairness.

Cummins handled the second case in other odd ways. Even though the alleged sexual assault occurred off campus, he insisted on having the UC disciplinary process hear it. Based solely on the filing of allegations, he informed the accuser’s thesis advisor that the student “has recently been the victim of behavior that violates our sexual harassment policy.” (This revelation suggested he had made up his mind before even speaking to the accused student.) The accused student also faced an interim punishment—including a prohibition on entering the library—based solely on these uninvestigated allegations.

More Extreme Procedures Coming?

During the hearing, one of the panelists scribbled a note that reflected the contemptuous approach often seen toward due process at the campus level: “Also ->this is NOT a court. We don’t have to do things like in law school.” The accused student was found guilty, and appealed. This appeal, too, was granted—and the case then remanded back to the same panel that had found him guilty in the first place. The second hearing featured the accuser attacking the accused student as a rapist and then storming out of the room before even UC’s permitted cross-examination could occur. The panel again returned a guilty finding.

UC retorted that none of this really matters—that the university only was obligated to hold a hearing and to inform both students of the charges against them, obligations that UC fulfilled. A fair process that might determine the truth, UC filings suggested, is beyond the legal obligations for any university. (Left unsaid was why a university wouldn’t want such a process.) UC purports to concede, citing relevant 6th Circuit precedent, that “a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing.”

But to justify its denial of basic fairness to the two students in these cases, the university relied on Jackson v. Dorrier, a 1970 case involving a high school policy prohibiting male students from having long hair. (“To hold that the relationship between parents, pupils and school officials,” the 6th Circuit ruled, “must be conducted in an adversary atmosphere and accordingly the procedural rules to which we are accustomed in a court of law would hardly best serve the interests of any of those involved.”)

It’s remarkable that UC could consider a grooming policy for high school students to be somehow relevant to whether a college student is entitled to fundamental due process when facing a life-altering sexual assault allegation. But perhaps not too surprising: UC also contends that even if its policy placed the burden of proof on the accused (which university briefs somewhat ineffectively denied), doing so “would not compel a finding that due process was violated.” Ponder that again: a public university has publicly affirmed that a policy that presumed students guilty of sexual assault would be constitutionally acceptable.

The university also justified its decision to impose interim punishments on students accused of sexual assault, on grounds that “federal regulations require the University to offer such [interim] accommodations or interim measures to victims of sexual assault” [emphasis added]. At the interim stage, of course, there is no victim—there’s an accuser and an accused. And Cincinnati’s filings also claimed that the Dear Colleague letter “directed” it to follow certain procedures, even though two high-ranking Education Department officials conceded last year that departmental guidance letters were just that—guidance, not obligations on universities.

UC seems to go out of its way to envision its undergraduates and even law students as the equivalent of high school students. For the proposition that it’s OK to deny students accused of sexual assault any right to cross-examine their accuser, the university cited a 2014 6th Circuit case involving a high school freshman. And for the proposition that it’s OK to deny students accused of sexual assault meaningful right to cross-examine their accuser by requiring questions to be funneled through a panel that might modify or simply ignore them, the university cited a Connecticut case involving a high school senior.

Since UC sees its students as glorified high schoolers, perhaps parents would be better off sending their children to another university.


KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.

How Title IX Became a Policy Bully

By KC Johnson

The Chronicle of Higher Education has received a good deal of attention for putting together a website cataloguing all the Title IX complaints currently pending with the Obama administration’s Office for Civil Rights (OCR). But the site should mostly be seen as a concrete demonstration of how little we know about these complaints, and how poorly the media as a whole has done in covering this issue.

Even before the issuance of the “Dear Colleague” letter in 2011, a marriage of convenience had developed between OCR and campus activists eager to weaken due process for students accused of sexual assault. In contrast to the Bush administration, OCR made clear by implication if not openly, it would welcome Title IX complaints, as a bludgeon to pressure universities to change their policies—if only the activists would file such complaints. And so local activists, increasingly organized by groups such as Know Your IX, SurvJustice, and End Rape on Campus, started filing complaints.

Related: The Hunting Ground—An Ethically-Challenged Tainted Documentary

The Title IX complaint against Yale—which produced the grossly unfair procedures that ensnared, among others, Patrick Witt—was the first example of this new process in action.

The only university that appears to have resisted OCR pressure was Tufts, and it did so only briefly, before backing down. The combined threat of bad publicity and a loss of federal funds—coupled with the fact that many on campus agree with the activists’ anti-due process agenda—has explained the remarkable academic passivity to this federal overreach.

OCR has followed the highly unusual strategy of releasing the names of colleges or universities under investigation, but refusing to release any of the details as to what prompted the Title IX complaint. And so, over and over again, the Chronicle website has lines such as these: “Sexual assault gained attention on the campus when the Office for Civil Rights notified leaders [and, of course, the public] in October that it had launched an investigation.”

OCR hasn’t explained why it has pursued this shaming strategy—whose only purpose seems to be to heighten the frenzy about the campus sexual assault issue and invite the media to assume the worst.

Related: Three Men Unfairly Branded as Campus Rapists

It’s not as if the agency doesn’t eventually release most of the details of complaints. Take, for instance, one of the most recent resolution letters, involving Michigan State University. There, once the matter was resolved, OCR published in some detail (without revealing the complainants’ identities) the initial allegations against the school. (In both instances, accusers claimed that the university had waited too long to investigate the charges, one of which was deemed baseless.)

OCR spares no details in these resolution letters: in the Michigan State case, for instance, the resolution letter included such unique details as the following: “In November 2010, during the investigation, Student A encountered the two male students in a University building where all of the students studied. The two male students were sitting in a private tutoring room with their tutor. While the door was closed, Student A could see the male students through a glass panel in the door. Student A remained outside the male students’ tutoring room for approximately 30 minutes.

When the male students were finished with their tutoring session, they left the room and walked past her to exit the building. Student A called the police to report that the male students had violated their PPOs by not leaving the building when she entered it. Student A stated that the male students were supposed to stay 500 feet away from her, but that the police had told her that the 500-foot rule has exceptions. After this encounter, the male students were assigned to a specific study area in the building that was separate from Student A’s study area and required them to use a separate entrance from the general student body.”

Related: The NY Times Reveals the Stupidity of ‘Yes Means Yes’

(This burden was placed on these two students, who also had been reassigned to a remote dorm on campus, even though the allegation was unfounded.)

This level of specificity, of course, ensures that those who knew both the accuser and accusers on campus would likely now learn about the sexual assault allegation. If the agency plans to release such details eventually, why not right off the bat? Perhaps because it sounded much worse to hear “Michigan State Under Title IX Investigation” than to learn that the allegation was that the school took long to conclude that an unfounded sexual assault allegation was, in fact, unfounded—and that the accused students had done nothing wrong.

An administration committed to transparency should release the details of the allegations, so the public could decide for themselves the seriousness of the Title IX complaints. That the Obama administration has chosen not to do so—as the Chronicle website helps to demonstrate—only compounds its bad faith on the issue of campus due process.


 

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.

 

Three Men Unfairly Branded as Campus Rapists

This past weekend, Fox News ran a special report about how colleges and universities across the country are handling sexual assault. The documentary (in which I appeared) ran counter to the prevailing narrative that schools are hotbeds of sexual assault where accusers aren’t taken seriously.

The report, hosted by Martha MacCallum, follows the stories of three men accused of sexual assault and the way they were branded as rapists despite evidence to the contrary in a culture that says we should believe all accusations regardless of merit.

“We’ve long heard that government is best kept out of the bedroom, but as it turns out, in colleges across the nation, government is insisting that it be referee in life’s most intimate moments,” MacCallum says at the beginning of the report. ”

Case One—uh-oh, a Piece of Gum. MacCallum detailed the story of an accused student at Occidental College, whose face was hidden on camera and who was referred to as John Doe. John Doe and his accuser, referred to as Jane Doe, had both been drinking. They were separated at one point but exchanged phone numbers and began texting. John invited Jane back to his dorm and she found her way back, but not before vomiting in a hallway.

She returned to John’s dorm and the two had sex. The next day, they discussed the situation for several hours and decided to just be friends. Jane would eventually speak about her misgivings over the evening to the school’s sexual assault advocate, who appears to have convinced her she had been raped. Jane filed a report with police, who determined that both students were drunk but neither was raped. Jane then went to administrators at Occidental, who initially agreed with the police.

Related: U. of Michigan Screws Up in ‘Rape’ Case

Occidental would then review the case and reverse its position without any new evidence. Suddenly, John was found responsible for sexual assault and expelled. One of the major pieces of “evidence” used to determine his guilt was the claim that he had given Jane a piece of gum when she went back to his room.

“Because I had given her a piece of gum I somehow should have known she was – ‘incapacitated’ was the word [Occidental] used,” John told Fox News. “I don’t even remember giving her a piece of gum.”

Asking for gum prior to an intimate situation is commonplace. Using that as evidence that John should have known she was too drunk (and not merely concerned she had bad breath, say, from eating a garlicky dinner) would turn a lot of consensual encounters into sexual assault.

The documentary also discusses how we got to the point where college administrators are adjudicating felony sexual assault. It all started with a letter from the Department of Education’s Office for Civil Rights. That letter was not subject to congressional approval or a proper review, yet it placed financial burdens on colleges to devote time and resources to creating pseudo-courts.

MacCallum talked to Russlyn Ali, the woman who wrote the “Dear Colleague” letter, and asked her if it was just a guidance document or whether it had “teeth.” Ali contradicted herself from one sentence to the next.

Related: The Odd Sexual Accounting at Yale

“If colleges and universities don’t comply with the nation’s civil rights law, their federal funding can be withheld,” Ali said. “The guidance though, was exactly, Martha, as you indicated, it was guidance.”

But the letter altered the civil rights law to force colleges to adjudicate these crimes or risk losing federal funding. Ali can’t have it both ways.

Case 2—Columbia’s Mattress Girl. The report also walked through two other cases of accused students — Paul Nungesser of Columbia University and Corey Mock of the University of Tennessee-Chattanooga.

Nungesser was accused by Emma Sulkowicz, who became famous after dragging her mattress around campus in protest of the school not expelling Nungesser. Columbia found him “not responsible” for brutally raping her. Her friends also tried to accuse him of various sexual misconducts (an ex-girlfriend said he pressured her into sex during their relationship, another woman said he kissed her at a party without her consent and a man said Nungesser tried to grope him one night). He was found not responsible for the claim from his ex-girlfriend and the male student. He was found responsible for the nonconsensual kiss but that decision was overtur\ed on appeal.

Related: Did Mattress Girl Lie?

Police also questioned him about Sulkowicz’s claims but didn’t pursue an investigation.

MacCallum spoke to Sen. Kirsten Gillibrand, D-N.Y., who has been one of the leading advocates for campus sexual assault policies. MacCallum asked Gillibrand what she thought of the multiple investigations into Sulkowicz’s claims and the multiple findings that he was not responsible.

“I believe Emma,” Gillibrand said.

That’s a frightening thought. Nungesser produced Facebook messages showing Sulkowicz continued to talk to him — at times even lovingly — after he allegedly raped her. This was not a woman who was indebted to him as a wife or girlfriend. The two weren’t hanging out regularly after that, as Nungesser had moved on. A few months after the encounter, Nungesser sent Sulkowicz a birthday greeting. Sulkowicz replied the next morning: “I love you Paul.”

Yet months later, she was accusing him of rape and gained international fame for doing so. Meanwhile, Nungesser — innocent from multiple investigations — would be branded a rapist and subjected to death threats and isolated on campus.

Nungesser is suing Columbia for its complicity in Sulkowicz’s art project, which was set up to intimidate her fellow classmate.

Related: Amherst: No Pretense of Fairness

Case 3—A Tennessee Judge Appalled. The final story detailed by MacCallum involved Corey Mock. He was expelled after a sexual encounter with a fellow student, but a judge overturned the college’s decision because the burden of proof was unfairly placed on Mock. Mock was found responsible by his college in part because he couldn’t provide evidence that he had obtained consent. Essentially he was forced to prove an assault didn’t occur rather than having his accuser, Molly Morris, prove the assault did occur.

A female state judge found the university “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation.”

Despite this victory, Mock will forever live with the accusation. Despite being found repeatedly not responsible, Nungesser continues to be branded a rapist. And despite text messages suggesting consensual sex, John Doe was still expelled and still struggling to get past the accusation.

MacCallum said the federal government and colleges are treating due process rights as “a pesky nuisance,” and suggested we make absolutely sure we understand the problem we’re trying to solve.

Related: Ten Campus Rapes, or Were They?  

She reminded viewers that women can misremember, misinterpret, lie, seek revenge and feel regretful — “not because they’re women, but because they’re human beings.”

“Most of us have sisters or daughters, and we want to make sure they’re safe, but we also have brothers and we have sons,” MacCallum said. “Advocates say: ‘We’ve got to think of the victim. We’ve got to do more for the victim.’ And they are absolutely right. We do have to think of the victim. That’s why in every case the first question should always be: Who is the victim?”

Because with every accusation, there is a victim. It might be the accuser, but it might be the falsely accused. It could be both students, who each made a poor decision. Colleges are currently — at the direction of the federal government — implementing procedures that make false accusations far more likely and more acceptable. Accusers are to be “believed” or else the school will face a federal investigation. Couple that with policies stating no accuser can be punished for coming forward, and schools are creating a recipe for abuse.The truth, above all else, should be the desired result in such cases. Sadly, colleges have every incentive right now to ignore the truth and find accused students responsible in the name of politics.

Reprinted with permission from the Washington Examiner.

‘The Hunting Ground,‘ an Ethically-Challenged Tainted Documentary

On Sunday night, CNN will air The Hunting Ground—a work of activist propaganda disguised as a documentary about sexual assault on American college campuses.

Among its numerous faults, the film blames the campus rape problem on a plague of serial rapists; expert opinion on this matter comes courtesy of psychologist David Lisak, whose misleading interpretation of his flawed research on serial predators is given center stage throughout the film. (ReadReason’s multi-part expose on the research underlying Lisak’s dubious theoryhere, here, and here, and see Linda M. LeFauve’s new article examining Lisak’s misleadingly constructed video interview with a rapist here.)

The Hunting Ground covers two high-profile sexual assault disputes in great detail. It goes to extraordinary lengths to paint the alleged assailants in these cases as perfect examples of Lisak’s model rapist, implying that these men are repeat offenders who plan out their crimes and drug their victims.

But in reality, it’s far from clear that The Hunting Ground’s accused rapists are even actually guilty—let alone serial sociopaths who stalk and incapacitate their victims.

The “Amazing Lie at the Heart of a Movie Claiming to be a Documentary”

Nineteen Harvard University law professors have denounced the film for (among other faults) misrepresenting the case of Harvard law student Brandon Winston, whose life was put on hold after a night of drunken, drug-fueled sexual contact resulted in his expulsion from the university and criminal charges.

“What our student did is not the kind of violent, repeat sexual assault that the movie claims is both the nature of the problem nationwide and that each of the people in the film are an example of that,” said Elizabeth Batholet, one of the Harvard law professors speaking out about The Hunting Ground’s errors, in an interview with Reason. “That’s an amazing lie at the heart of a movie claiming to be a documentary.”

The Hunting GroundThe Hunting Ground

Winston was accused of sexual misconduct by then-student Kamilah Willingham, who gives her one-sided account of the dispute toward the beginning of The Hunting Ground. According to Willingham, she and a female friend had drinks with Winston at her apartment, proceeded to a bar where Winston bought them more drinks, and then all three returned to her apartment in a state of inebriation, where Winston assaulted them while they slept. The clear implication from the film is that Winston is a monster frequently preys on his victims by drugging them and was ultimately able to elude justice because Harvard does not take victims seriously.

“He’s a predator,” Willingham says in the film “He’s dangerous.”

But, as Slate’s Emily Yoffe discovered in her groundbreaking investigation of the dispute earlier this year, the real story was much different. There is no evidence that Winston drugged the women; on the contrary, Willingham and Winston both consumed cocaine that Willingham herself had supplied. Willingham used a bloody condom she discovered in her wastebasket as evidence that her friend had been violently raped, but DNA evidence ruled out the possibility that the condom had been used by Winston (though it did match Willingham).

Nor is it true that Winston escaped wholly unpunished, as The Hunting Ground implies. Harvard initially recommended his expulsion, and repeatedly placed him on academic leave, but reinstated him after determining that insufficient evidence existed to brand the encounter as assault. A grand jury declined to indict him on any charges having to do with Willingham; he was eventually convicted of a misdemeanor charge of nonsexual touching of Willingham’s friend. The film’s only reference to these facts is through some text briefly displayed at the very end.

The accusation put Winston’s future on hold for three years. A young black man with no history of criminal activity had to suspend a promising education at Harvard law school while both university administrators and the court system adjudicated the accusations against him.

“Three good years of his life have gone solely to this,” said Harvard Law Professor Janet Halley, who also rejects The Hunting Ground’s narrative, in an interview with Reason. “It’s not right for the filmmakers to extend it out to yet another trial in the court of public opinion, when the underlying claims have been so conclusively rejected. It’s bad for the overall effort for justice, and it’s bad for this young man.”

 “Major Distortions and Glaring Omissions”

The Hunting Ground’s case against former Florida State University star quarterback Jameis Winston (now with the Tampa Bay Buccaneers; no relation to Brandon Winston) is similarly plagued by inaccuracies. Accuser Erica Kinsman claimed Winston drugged her at a bar, forced her back to his apartment, and raped her on the bathroom floor.

Kinsman says in the film that she’s “fairly certain” the drink Winston (or one of his friends) gave her was spiked, but two separate toxicology reports established that there were no date-rape drugs in her system on the night of the incident. Indeed, Kinsman has repeatedly changed the details of her story, first saying she passed out after consuming the drink and was unable to recall how she got into a car with Winston, and later saying she was coerced or intimidated into the car (something investigators thought was dubious, given that there were a lot of other people around at the time). The facts undermine the idea that she was preyed on by Winston, who was eventually cleared of sexual assault during a university hearing run by a retired Florida Supreme Court justice. Winston is now suing Kinsman for defamation.

In a statement chiding CNN for deciding to screen The Hunting Ground, FSU President John Thrasher excoriated the film for its “major distortions and glaring omissions.” Its producers have fallen into the same trap as Rolling Stone’s editors did with their discredited story about gang rape at the University of Virginia, wrote Thrasher.

“A Film Project That Is Very Much in the Corner of Advocacy”

The makers of The Hunting Ground, of course, are not interested in anything resembling the truth. Indeed, an email from investigative producer Amy Herdy made public confirmed recently this beyond any doubt. In the email, Herdy told Kinsman’s lawyer that the makers of The Hunting Ground, “do not operate the same way as journalists—this is a film project that is very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side.” In a separate email, Herdy discusses tactics for “ambushing” Jameis Winston.

While the cases against the two Winstons don’t stand up to scrutiny, The Hunting Ground does manage to identify a single serial predator: an unnamed man whose face is blurred for his interview with the filmmakers. This man confesses that he was incarcerated for sexual assault and hopes that by coming forward, he is educating the public about how to prevent people like him from committing attacks. His monologue is interspersed with separate commentary from Lisak. Here is a transcript of that part of the film:

Man: “I was incarcerated for six and a half years for sexual assault. I know I was at fault. Like I said, the reason I really wanted to do this interview was to help someone else out. Maybe to have them become aware of what they are doing wrong.”

Lisak: “The really practiced sex offenders identify groups of people who are more vulnerable.”

Man: “College is the place where lots of alcohol is consumed and the number of victims is endless.”

Lisak: “These men select victims ahead of time. It could be a bar, it could be a fraternity party where people are drinking.”

Man: “At the parties, like frat parties, I mean people are getting wasted. So it’s not like a lot of the time dependent on who they’re with. Nobody keeps an eye on them.”

Lisak: “The alcohol is essentially a weapon that is used to render somebody extremely vulnerable.”

Man: “Alcohol definitely makes it easier to overpower a victim if they’re inebriated or under the influence. Less struggle for sure.”

Lisak: “Then there is an isolation phase. So if somebody who has deliberately gotten this young woman extremely intoxicated, and at some point he says to her, ‘I’ll walk you back to your room,’ or ‘you can sleep it off if you want, we have a bed upstairs.’ And that’s where the assault occurs.”

The film’s only case of clear-cut predation, then, is supported exclusively by an anonymous interview that provides no checkable details. 

The film also claims eight percent of men in college commit 90 percent of the assaults and that the average number of assaults per rapist is six. The citation, of course, belongs to Lisak’s 2002 study, “Repeat Rape and Multiple Offending Among Undetected Rapists.” But as Reason confirmed in its previous invesitgations of Lisak’s work—and Lisak himself confirmed—that study wasn’t actually about college students, and didn’t ask participants about crimes committed on campuses.

A Representative Case?

Is The Hunting Ground’s anonymous predator—whose crimes are implied, but not confirmed, to have taken place on a campus—a representative case?

The interview bears a striking similarity to one conducted by Lisak decade ago. Lisak allegedly sat down with a serial rapist who was also fraternity brother and interviewed him about is methods. This conversation was later replicated by an actor and passed off as an anti-rape educational material dubbed an interview with an undetected rapist, and known as “the Frank video.”

But, as a new investigation by Reason contributor Linda LeFauve reveals, the Frank video is a composite of several conversations with rapists—demonstrating that Lisak’s own stereotypical serial predator is a carefully concocted cut-and-paste character.  

The validity of Lisak’s theory was recently called into question by a new paper authored by Kevin Swartout, Mary Koss, Jacquelyn White, Martie Thompson, Antonia Abbey, and Alexandra Bellis. The authors found the serial predator theory to be based on “surprisingly limited” scientific evidence; their own study that most college rapists did not commit rapes across multiple years.

Lisak and his advocates have pushed back against this study, telling The Huffington Post that it contains significant flaws and ought to be retracted.

Nevertheless, Swartout said in an email to Reason that his team stands behind their work.

“We want to move the field forward by engaging in discussion of the issues through the peer review process,” he said.

Co-author Mary Koss told Reason that “no study is above reproach and we were and are open to constructive criticism and the need to make corrections if deemed necessary in the judgment of the editors.”

The science behind the serial predator theory, then, remains decidedly unsettled. But people who tune in to CNN on Sunday night won’t be treated to a nuanced examination of the question. Instead, they will be hit with a work of activist propaganda that wrongfully portrays college campuses as uniquely dangerous environments where women are literally hunted by sociopathic rapists.

“We who have spoken out at Harvard are completely committed to addressing sexual assault,” said Bartholet. “It’s horrible that this film is coming out that is now misrepresenting the nature of the problem and diverting attention away from how we can address it.”

The NY Times Reveals the Stupidity of ‘Yes Means Yes’

On October 15, The New York Times published a balanced news story that inadvertently revealed the stupidity of “Yes Means Yes” policies. Those policies redefine a great deal of consensual sex and touching as “sexual assault,” and effectively require college students to engage in “state-mandated dirty talk” during sexual encounters (as one supporter of “Yes Means Yes” policies gloated). That potentially violates the Constitution, and such policies have led to costly lawsuits against colleges that have such policies.

By printing ideologically inconvenient truths, the Times allowed the stupidity of “Yes Means Yes” policies to shine through, rather than covering up their stupidity. This was remarkable for The Times, which usually can’t cover social issues or discuss the failures of big government without injecting a doctrinaire left-wing slant. It quotes the developer of the “Yes Means Yes” curriculum admitting that under “Yes Means Yes,” “you have to say ‘yes’ every 10 minutes” during a sexual encounter to avoid sexual assault charges, resulting in constant awkward communication:

What does that mean — you have to say ‘yes’ every 10 minutes?” asked Aidan Ryan, 16, who sat near the front of the room.

“Pretty much,” Ms. Zaloom answered.

It quotes a female student calling it “really awkward and bizarre”:

The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: “Can I touch you there?” Too clinical. “Do you want to do this?” Too tentative. “Do you like that?” Not direct enough.

“They’re all really awkward and bizarre,” one girl said.

This illustrates the complete unworkability of “affirmative consent” proposals like the American Law Institute’s draft sexual assault definition in its proposed revision of the Model Penal Code. That provision, modeled on “Yes Means Yes” policies, seeks to criminalize non-violent sex and romantic touching in society, (even if it was welcomed by the participants) unless there was “affirmative” consent in advance.

As Megan McArdle noted in The Atlantic, under that criminalization proposal, a great deal of harmless touching could well be deemed a crime, including this hypothetical provided by lawyers and law professors: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”

Unfortunately, there is one shortcoming in the New York Times story: it repeats the erroneous idea spread by the San Francisco Chronicle that all drunk consensual sex is already legally rape on campus under California’s “Yes Means Yes” law regulating campus sex. In reality, as defense lawyer Scott Greenfield, legal commentator Walter Olson, and I have all explained earlier, that law only bans incapacitated sex, not all drunk sex.  But The Times writes:

The “no means no” mantra of a generation ago is quickly being eclipsed by “yes mean yes” as more young people all over the country are told that they must have explicit permission from the object of their desire before they engage in any touching, kissing, or other sexual activity. With Gov. Jerry Brown’s signature on a bill this month, California became the first state to require that all high school health education classes give lessons on affirmative consent, which includes explaining that someone who is drunk or asleep cannot grant consent.

Although California’s “affirmative consent” law does not ban all drunk sex, some campus “affirmative-consent” policies do, invading the privacy of students (there is no logical reason why a married couple should not be able to have a glass of wine before sex). But California’s law does heavily intrude into people’s private lives, and create a climate of fear, as some of its most outspoken supporters readily acknowledge.

Ezra Klein is the editor-in-chief of the liberal publication Vox, and a leading supporter of California’s “affirmative consent” law. He says that it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, and “create a world where men are afraid,” which he justifies by saying that “men need to feel a cold spike of fear when they begin a sexual encounter.”  He writes that California’s “Yes Means Yes” law…

“…tries to change, through brute legislative force, the most private and intimate of adult acts.It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test. The ‘Yes Means Yes’ law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value…. If the ‘Yes Means Yes’ law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it….  Men need to feel a cold spike of fear when they begin a sexual encounter…. To work, ‘Yes Means Yes’ needs to create a world where men are afraid.”

Education Dept. Rules on Campus Rape Called Illegal

The College Fix published an interesting article, “Department of Education shredded for lawless overreach in Senate hearing.” It was about Congress getting annoyed with the Education Department for illegally imposing mandates on colleges and schools out of thin air, without even going through rulemaking or the notice and comment required by the Administrative Procedure Act (APA). Examples include school bullying rules and counterproductive mandates for handling sexual harassment and assault claims.

As the College Fix notes, the Education Department’s Office for Civil Rights, where I used to work, has dictated sweeping “changes in how colleges and universities handle sexual-assault allegations and investigations.” The Education Department requires colleges to comply with an intricate and very burdensome set of rules (66 pages), beginning with a 2011 Dear Colleague Letter, even though that letter explicitly (and falsely) claimed it was not adding any requirements to applicable law.

As the College Fix observes, that letter “was issued without a notice-and-comment process, making OCR’s guidance arguably unenforceable, yet the office has launched Title IX investigations against scores of schools for allegedly violating its unenforceable rules emanating from that letter. OCR’s guidance overreach has been weighing on Sen. Lamar Alexander, R-Tennessee, chairman of the Senate committee that handles education, and President George H.W. Bush’s education secretary, who said the letter circumvented ‘the principles of transparency and accountability.’”

Since that letter, OCR has issued tons of additional “guidance” that schools must follow, some of it harmful to both victims and wrongfully accused people. That has triggered a vast expansion of university Title IX bureaucracies that were already growing. It has also held individual colleges liable for not complying with additional requirements made up after the fact in pending Title IX investigations.

For example, a recent settlement with the University of Virginia requires it to investigate even when the accused has already admitted guilt (even though that could needlessly force a victim to relive her trauma) and even in “cases in which students chose not to file a formal complaint” or even to pursue an “informal resolution process.” Earlier, it faulted Michigan State for not investigating a false complaint fast enough, even though the complainant didn’t want a college investigation at all, and it suggested the University might have to offer the false complainant academic “remedies“ as a result.

Sen. Alexander also said the Education Department’s Office for Civil Rights was making up rules out of thin air in its 2010 school “bullying” guidance, which was issued without any notice and comment, even though it triggered the APA’s notice-and-comment requirement in imposing “significant” new obligations on schools. (The Education Department has attempted to federalize school bullying and define it in an overly broad way that violates freedom of speech, and has no basis in Title VI, Title IX, and the Rehabilitation Act, as I previously explained here and here.)

As Sen. Alexander noted, Congress had deliberately left this issue to be handled by state and local governments, not the federal Education Department, when it “purposely left out prescriptive rules in its recent education reauthorization bill” because “nobody” in Congress wanted the Education Department to act as a “‘national school board’ to set bullying policies for 100,000 schools.” He asked Acting Assistant Secretary Amy McIntosh “where does the Department of Education get the authority even to issue a guidance or even a rule or regulation on bullying? . . . The United States Senate doesn’t agree that the federal government ought to be telling the local school what its bullying policy ought to be.”

The examples of bureaucrats making up rules out of thin air that Senator Alexander cited are just the tip of the iceberg. A recent report by College Presidents discusses how the Education Department is flooding schools with obscure, uncodified, but very costly rules, in violation of the Administrative Procedure Act. Most of the rules they cited had nothing to do with Title IX, bullying, or civil rights.

We discussed earlier how the government is misinterpreting and misapplying Title IX to attack free speech by incorrectly redefining protected speech as verbal “sexual harassment”, in a way at odds with federal court rulings, in past commentaries you can find here and here. We also discussed how the government is misusing Title IX to erode the due process rights of people accused of sexual harassment or misconduct, in a way that violates the Administrative Procedure Act, here, here, and here.

A New Politically Tainted Survey on Campus Sexual Assault

The often-debunked statistic on campus sexual assault, that one in five women can expect to be attacked, has reappeared, inflated once more–this time to 23 percent–in a survey by the Association of American Universities (AAU), with the expected headlines from the expected quarters, such as The New York Times.

The general critiques of previous campus surveys apply to this one as well. First, if these numbers are true, it indicates an unprecedented wave of violent crime, yet neither the Obama administration nor college leaders are urging an increased law enforcement presence on campus. For instance, Harvard administrators called the survey “distressing” and expressed anguish—yet made no sign of calling in the Cambridge Police Department to deal with what these same administrators purport to believe is a campus crime wave.

Related: The Odd Sexual Accounting at Yale

Second, as Ashe Schow has repeatedly, and correctly, observed, framing questions in such a way to get a banner headline means the result will get a banner headline. That is, rather than asking students whether they had been sexually assaulted, this survey asked them a variety of questions that didn’t use the phrase, and then imputed sexual assault to the responses, to get the top-line figure. One of the data points from the survey revealed the problem with this approach. Of those who fit the researchers’ definition of sexual assault but didn’t report the offense, around 60 percent said they didn’t think what had happened to them was serious enough. (This number dwarfed the other reasons that students said they didn’t report, such as shame, a fear of being disbelieved, or a desire not to be re-traumatized.)

It’s simply inconceivable that a huge percentage of college women from some of the nation’s best universities don’t consider actual sexual assault to be serious enough to report—suggesting that whatever happened to these students, it wasn’t sexual assault.

The AAU survey has another significant problem, in that it appears to have dramatically oversampled one particular campus constituency—female students who reported a claim of sexual assaults to their campus. According to the latest Clery Act data, 5096 such students did so in 2013 (that number, of course, would include any males who made a sexual assault claim). Table 6 of the AAU survey informs us that, of the female undergraduates who responded to the survey, about 11 percent said they had been penetrated without consent—either due to incapacitation or force—and about one-fifth of these students had reported that offense to their college or university. (The precise reporting figures are 25.5 percent of those who said they had been penetrated without consent by force, and 14.4 percent of those who said they had been penetrated without consent due to incapacitation.)

Related: UC San Diego Loses in Sex Assault Case

As my colleague Stuart Taylor pointed out in a piece for washingtonpost.com, this survey data (conservatively assuming that students graduate in five years) would expect somewhere around 44,000 reported sexual assaults annually. Yet the most recent year’s Clery Act figures show 5096 reported sexual assaults. This massive disparity raises the likelihood that in a low-response survey (19 percent) that was already skewed 3:2 toward female respondents, those who considered themselves victims of sexual assault were far more likely to respond than non-victims. To their credit, the researchers concede the possibility of this over-reporting—just before they suggest that victims might not have wanted to participate in the survey, although none of the AAU’s internal data supports the latter conclusion.

One final point. Of the non-reporters, just under 25 percent said they didn’t report because the incident didn’t happen at school or that it had to do with school, presumably because the alleged perpetrator was a non-student. The Washington Post series from this summer also featured several students who said they had been sexually assaulted off-campus by non-students. Both data points are reminders that a non-trivial number of college students—even at primarily residential colleges, much less at non-residential institutions such as CUNY or some of the California state schools—are assaulted by people outside the campus community. The Obama administration and campus rape groups like Know Your IX, which champion a parallel, campus-based justice system, will do nothing for these students.

Top Reads from Minding the Campus

Weaponizing Title IX at Middlebury

Last week came two more court decisions involving due process and campus sexual assault. The first, which involved a student at Case Western Reserve University, had Judge Christopher Boyko (a George W. Bush appointee) ruling that it was plausible the accused student was innocent and the CWRU had manufactured inculpatory evidence—but there was nothing he could do to remedy the problem. The second, which involved a student at Middlebury College, had Judge J. Garvan Murtha (a Clinton appointee) issuing a preliminary injunction preventing Middlebury from expelling the student. You can read Judge Murtha’s decision here.

The Middlebury case was factually and procedurally complicated. But it offers three issues of importance:

(1) Title IX can be weaponized, with the accuser using the threat of a complaint with the Office for Civil Rights (OCR) to effectively force a college to do her bidding.

(2) In what seems like a first, a college assumed jurisdiction over a sexual assault case that involved an allegation filed by a student from another school.

(3) The case provides a rare behind-the-scenes view of the extraordinarily one-sided training that “impartial” campus adjudicators receive.

The Incident

In fall 2014, a male junior applied to study abroad for the semester; Middlebury’s study abroad program is run not by the college but by an institution called School for International Training (SIT), which is based in Brattleboro, around two hours from the Middlebury campus. SIT is a U.S. university, subject to Title IX, and Middlebury’s guidelines make clear that students in the program will be subject to SIT rulings for honors code violations while they’re abroad. The guidelines are silent about student conduct issues.

The background to the allegation was rather tawdry. On November 7, 2014, after what appears to have been a night of considerable drinking, the male student came back to his room with two female students in the study abroad program, at least one of whom wasn’t from Middlebury. His roommate was away, and so the three of them decided to sleep together in his room, pushing the two beds together, with the male student sleeping between the female students. At some point in the evening, the male student became sexually active with one of the female students (who initiated this contact remains in dispute). The other student (a friend of the female student, and a former romantic partner of the male student) eventually saw what was going on—and got up, retiring to her own room.

The incident was, at the least, embarrassing; it threatened the social equilibrium between the female student and her friend. But the female student soon claimed that the intercourse was nonconsensual; she filed a sexual assault claim through SIT. (There’s no indication she went to the police.) SIT, in turn, informed Middlebury that it planned to investigate the allegations; it then would conduct a hearing according to its own policies (which conform to OCR guidelines). Middlebury made no attempt to assert jurisdiction over the case. SIT convened a hearing at which both parties, and the other student who was in the bed, testified. The hearing also considered contemporaneous text messages between the three. Both the transcript of that hearing, and the text messages, were not included in the public documents filed in the case, so it’s impossible to comment confidently about the merits of the allegation. But the SIT hearing found the male student not culpable for sexual assault. The accuser elected not to exercise her OCR-right to appeal the finding at SIT.

That decision, it would seem, should have ended things. An accused student had been charged. A hearing had been held, at which he was acquitted. The accuser did not appeal.

Middlebury Intervenes

But the accuser elected to pursue another path. She still didn’t go to the police. Instead, working through the Title IX coordinator at her own institution, she wrote to an administrator at Middlebury, with an ill-concealed threat: “I am pursuing,” said she, “a complaint with the office of [sic] civil rights.” And suddenly Middlebury, which heretofore had unquestioningly accepted SIT’s coordination of the case, decided that it would conduct a second investigation—even though the accuser wasn’t a Middlebury student. To the best of my knowledge, this is the only publicized case since issuance of the “Dear Colleague” letter in 2011 in which an institution has asserted jurisdiction over a claim that didn’t involve two students from the college. If established as a precedent, the expansion of the parallel justice system championed by the Obama administration would be dangerous, and massive.

In addition to her threat about filing a complaint with OCR, the accuser passed along information about the case that she said corroborated her view of events. She also claimed that SIT’s investigation had violated Title IX because SIT’s investigator hadn’t spoken to her academic advisor (why that would be relevant the accuser didn’t say) and hadn’t spoken to unspecified witnesses (what these witnesses might or might not have said the accuser didn’t tell Middlebury). Though OCR, not Middlebury College, has authority to decide whether SIT’s actions conformed to Title IX, Middlebury Dean Karen Guttentag had heard enough. The college would effectively set aside SIT’s finding, the dean later testified, based on the accuser’s “perceptions of SIT’s investigation and hearing process.” You can read the dean’s affidavit here.

This rationale was nothing short of extraordinary. The files contain no indication that Guttentag had asked anyone at SIT whether the accuser’s “perceptions” of SIT procedures were based in reality. But with a clear threat that if Middlebury didn’t go along, the accuser would add the college to her already-filed claim against SIT, the college leapt into action, more than two months after the allegations and well after SIT had already acquitted the student.

Guilt and Middlebury

Middlebury’s decision meant that the accused student would be subjected not only to a double-jeopardy scenario, but a very different procedure. Unlike SIT, Middlebury has adopted the Obama administration’s preferred approach of bypassing a hearing (lest it re-traumatize an accuser who, at that stage of the process, the college doesn’t know is telling the truth) and turning things over to a single investigator. The investigator submits a report to a college administrator, who then interviews the accused student, but in every case since 2012 in which the investigator had branded the accused student a rapist, the college has accepted the finding. Middlebury referred this case to an investigator named Nell Coogan, whose website indicates no background in criminal investigation or law enforcement.

Middlebury has clear ideas on how sexual assault investigations should be conducted; the firm Margolis Healy trains college officials on the matter. The firm’s guidelines, as based on a 2012 training session, seem designed to ensure that the college gives every conceivable benefit of the doubt to the accuser. You can see the guidelines here; note how heavily Margolis Healy relies on the now-discredited researcher David Lisak, who is mentioned eight times, to explain how colleges should respond to sexual assault allegations.

Investigators, Margolis Healy instructed Middlebury officials, must not approach the case with “skepticism.” Indeed, they must “start by believing” the accuser. The discussion with the accuser must not involve the investigator interrogating her; “This is not the time for ‘just the facts.’” (If not then, when?) The investigator must avoid “victim blaming” questions, such as asking the accuser why she did something. “Use what we know” about campus sexual assault—that the “non-stranger sexual offender” says to himself, “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.” While the investigator must “start by believing” the accuser, the Middlebury official must begin by wondering if the accused is “who he said he is.” Margolis Healy counseled Middlebury investigators against using the term “accuser” (“victim” or “survivor” is preferred).

The report prepared by the investigator “should not include . . . consensual language” or anything indicating “mutual participation.” But what if the intercourse was consensual, or involved mutual participation? Nor should the investigator’s report include the following language: The “victim has inconsistencies with her story.” But what if she does? Nor should the report conclude that “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect.” But what if the accuser isn’t credible? According to Middlebury’s training, that outcome seems impossible.

With this background, and given the looming threat of a Title IX complaint if Middlebury didn’t do what the accuser wanted, the college returned a guilty finding, and recommended expulsion days before the accused student was to begin his final year at Middlebury. The accused student sued, noting that the college’s decision not only would end his Middlebury career, but also would rob him of a job offer that he had already lined up after graduation.

The Court Case

In filings before Judge Murtha, the two sides partially re-litigated the case. The accused student contended that SIT’s finding was correct, and that the accuser had substantially enhanced her allegations over the course of the inquiry. Middlebury countered that the accused had changed his story, and denied that kicking the accuser out of school and costing him his job would constitute irreparable harm for him. Middlebury administrators and its investigator also produced unintentionally comical affidavits claiming that the guilt-presuming training that Middlebury arranged for them to receive had no impact on how they investigated sexual assault allegations.

Judge Murtha understandably was skeptical about college officials’ newfound commitment to objectivity. His ruling was a preliminary one, but he noted that “Middlebury’s policies did not authorize a second investigation and de novo evaluation of the allegation of sexual assault after it had been decided in Plaintiff’s favor by SIT, the sponsor of the study abroad program during which the alleged misconduct occurred, to whose discipline Plaintiff was subject.”

The accused student thus can complete his senior year. But how will Judge Murtha rule on the merits of the case?

Expel 10 If One or Two Are Guilty of Rape?

At a House oversight hearing last week, Representative Jared Polis (D-Colorado) seemed deeply troubled by two arguments raised by FIRE’s Joseph Cohn: that trained police, rather than campus bureaucrats, are better equipped to investigate felony offenses; and that the current campus tribunals deny meaningful due process for students accused of sexual assault. In response, Polis asserted, “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”

The Colorado congressman has now retracted parts of that assertion, in an op-ed that raises more questions than it answers. Polis writes that he “misspoke” when he “went too far by implying that I support expelling innocent students from college campuses, which is something neither I nor other advocates of justice for survivors of sexual assault support.” (Polis doesn’t explain why, if that’s the case, campus rape activists in the audience applauded his remarks.) But his chief justification for his policy shift appears to be tactical: He states that his “remarks have detracted from the substance of this debate.” (In fact, the activists’ applause provided a remarkable, if chilling, clarifying moment.)  Moreover, his op-ed leaves the impression that he simply spoke hastily or emotionally in a “back and forth exchange” the hearing, even though he reiterated his position afterwards in an e-mail conversation with Reason’s Robby Soave. Did he misspeak (or, I suppose, “mis-write”) to Soave, as well?

It appears, nonetheless, that Polis no longer believes that colleges should expel ten students accused of sexual assault if only one or two of them is guilty. But what about his other hearing statements?

Polis’ retraction comes in a defiant op-ed in which he expresses strong opposition to the concept that police, rather than campus bureaucrats, should handle the investigations of campus sexual assault. This is, he writes, a “deeply dangerous idea that demonstrates a cursory and superficial understanding of the issue.” (The congressman doesn’t say if he believes that campus bureaucrats should handle other serious student-on-student felonies, such as attempted murder or felony assault.) He also defends the Obama administration’s insistence that these campus hearings use the preponderance-of-evidence threshold.

In the hearing, Polis mused that colleges could use an even lower burden of proof—“reasonable likelihood,” which he defined as 20 or 30 percent chance of guilt. Does he still believe this? His op-ed doesn’t say.

In the hearing, Polis minimized the stakes for students accused of sexual assault. “For crying out loud,” he chuckled sarcastically, the worst that could happen to a falsely accused student would be transferring to another institution. Does he still believe this? As Eugene Volokh pointed out, Polis’ statement seemed either supremely cynical or flat-out misleading—since it would envision universities simply passing around actual rapists, or would involve Polis deliberately minimizing the difficulty of a transfer (not to mention subsequent employment opportunities).

Finally, Polis offers a new argument in his op-ed. “For those of us also concerned with the rights of the accused,” he writes, “dragging their name through the newspaper as an accused rapist through a criminal justice process will haunt them forever, even if they are found not guilty.” It’s heartening to see that Polis has suddenly discovered a concern with the rights of the accused. He oozed contempt toward Cohn, the only witness at the hearing who focused on due process for accused students; indeed, he suggested at the hearing that due process was irrelevant, since the accused student couldn’t be jailed by his college. (In his op-ed, he equates Cohn’s position with that of “most people who don’t know much about this issue”—an odd position for this newfound champion of rights of the accused to take.) In the event, Polis reiterated his belief that due process wasn’t the appropriate framework to consider the issue in his post-hearing e-mail discussion with Soave. Does he now repudiate that, as well?

Yet Polis’ only defense of the accused students’ due process—that the rules of campus disciplinary matters will keep their names out of the newspaper—is nothing short of extraordinary. The secrecy of campus tribunals provides no protection for the accused student; indeed, the secretary undermines due process. The closed nature of campus tribunals means it’s almost impossible for the media to discover (or the campus community to understand) that universities are branding students rapists after processes in which the accused student lacks meaningful representation from a lawyer, can’t cross-examine his accuser, and often has no right (or ability) to exculpatory or impeaching evidence.

Indeed, if I could recommend only one reform of the campus disciplinary process, it would be making hearings open to the public, to expose the kangaroo courts for what they are. As Louis Brandeis maintained, sunlight is the best disinfectant. It appears as if Congressman Polis, on the other hand, prefers the darkness.

U. of Michigan Screws Up in ‘Rape’ Case

On Friday, a federal court filing revealed that University of Michigan had settled its lawsuit with Drew Sterrett. The case, first exposed by Emily Yoffe in her sensational Slate article, featured Michigan branding Sterrett a rapist despite overlooking critical exculpatory evidence (including from the roommates of Sterrett and the accuser) and very troubling conduct by the Michigan bureaucrats who conducted the investigation. Yoffe  returned to the question in an excellent summary, hearing from both sides, of the conclusion to the case.

News of the settlement was first reported by David Jesse, of the Detroit Free Press. Jesse’s article could serve as a case study in how poorly the mainstream media covers campus sexual assault. A Free Press reader who didn’t read Yoffe or didn’t pore through filings on PACER would come away believing that Michigan had somehow wronged the accuser, and not Sterrett.

The article noted the terms of the settlement (setting aside of the university judgment, Sterrett agreeing to transfer, and a mutual non-disparagement clause). As already seen in settlements by Xavier, St. Joe’s, and DePauw, universities settle due process lawsuits not from the goodness of their hearts, but when they’re worried about losing. But Jesse provided none of this context—by, perhaps, interviewing a law professor. Indeed, the article didn’t even mention that Judge Denise Hood (despite seeming desperate to accommodate the university’s position) had kept alive Sterrett’s due process claim that “he was denied a meaningful hearing” by the university.

Indeed, a reader of Jesse’s article would have had no idea of the central issues in the lawsuit. Sterrett—as Yoffe’s article best explained—alleged that the university’s deeply flawed procedures (which included not telling him of the specific charges against him and pressuring him not to consult a lawyer) produced a flawed result (which included overlooking key third-party evidence that contradicted the accuser’s tale). Jesse mentions none of this, and instead offers seven sentences about whether or not Michigan encouraged the accuser to file a police report—an incidental element in Sterrett’s suit.

Sterrett’s lawsuit brought to the fore more evidence missed by Michigan. While the university’s judgment relied on two of the accuser’s friends, who said she told them that she tried to push Strerrett off of her, she admitted under oath in a lawsuit deposition that she had said no such thing. Yet Jesse risibly implies that Sterrett wanted to cover things up: the settlement, the Free Press reporter writes, means Michigan “cannot do any further investigation into the case.”

Jesse includes three paragraphs of comments from the accuser, to whom he grants the cloak of anonymity, denouncing the settlement. And he adds another three paragraphs, with similar sentiments, from the accuser’s attorney. The accuser—after a process that Michigan so distorted in her favor that the university ultimately couldn’t defend it in federal court—has now threatened to file a Title IX complaint.

Finally, the original version of Jesse’s article improperly claimed that Michigan found that Sterrett had committed a “rape.” The fiction of the university process, of course, is that schools pretend that they’re only addressing a college disciplinary code violation when they investigate rape allegations.

Other than each of these matters, the piece was a model of journalistic objectivity.

Why ‘Yes Means Yes’ Rules Can’t Work

Despite criticism from all overthe politicalspectrum, so-called “yes means yes” sex rules are on the march. After California, New York Gov. Andrew Cuomo signed a law on July 7 requiring all of the state’s universities to adopt an affirmative consent policy for sexual assault cases. Similar rules are set to go into effect at the University of Minnesota, though their implementation has been delayed by civil liberties concerns; New Hampshire and New Jersey are considering legislation that would tie funding for colleges to the use of affirmative consent standards. Meanwhile, reports from the field—and even the words of the people who champion these policies—leave little reason to expect anything but disaster.

Maybe an App Will Help

Take, for instance, a recent piece by Amelia McDonnell-Parry on the feminist site The Frisky, vehemently objecting to several new smartphone apps targeted to college students that purport to facilitate affirmative consent—for instance, by allowing partners to record a 20-second video stating their mutual consent to sex. McDonnell-Parry agrees with Apple, which has barred one such app as “icky.”  (Of course, many feel that way about “affirmative consent” rules in general.) She is particularly irked that the app is intended to provide proof of consent—which, evidently, amounts to supporting the heresy that women may lie about rape and that men can legitimately worry about false charges. McDonnell-Parry also argues that a recorded “Yes” should not be treated as final: “After all, consent, once given, is NOT locked in stone, and pushing the idea that the ‘consent discussion’ is over once someone has said ‘Yes,’ is downright dangerous.”

Interestingly, McDonnell-Parry believes that, contrary to what campus policies and consent workshops typically teach these days, agreement to have sex can be expressed through “indisputably consenting body language” as well as words. It does not seem to occur to her that, even aside from deliberate lies, someone who regrets a sexual encounter could genuinely come to believe that she (or he) never gave consent. We are thus back to a central problem with affirmative consent policies, even aside from the intrusive regulation of how people conduct themselves in sexual situations: proving that active consent was obtained is virtually impossible. Some supporters of these policies openly admit that they have no idea what kind of proof a wrongly accused student could offer to clear himself (“Your guess is a good as mine,” California Assemblywoman Bonnie Lowenthal told the San Gabriel Valley Tribune last year). Others, such as McDonnell-Parry, openly say that there is no need for proof since false accusations are not an issue.

The Times Weighs in

Meanwhile, the New York Times, which has consistently supported the campus rape crusade, has a new report intended to show an affirmative consent success story focusing on the University at Albany, a part of SUNY. Author Sandy Keenan writes, evidently with a straight face, “The consent definition within [the new law], officials say, is not intended to micromanage students’ sex lives but to reorient them on how to approach sex and to put them on notice to take the issue seriously.”

Many students, Keenan acknowledges, are resistant to being “reoriented.” Carol Stenger, director of the university’s Advocacy Center for Sexual Violence, laments that “men and women think the situation is a wash when both are inebriated” and that it “drives [her] crazy.” (Stenger never explains why they are wrong.)  The male student at the center of Keenan’s article, junior Tyler Frahme, initially complains that affirmative consent policies are not “gender-neutral” and “cast men in a predatory light.” However, his friend Jill Santiago, who has organized sexual assault prevention training, tells him that “if guys realize they have to ask and get permission … this could wind up protecting everyone.” (That sounds suspiciously like the ultimate heresy: suggesting that men need to be protected from false accusations.)

A Little More Comfortable

At the end of the article, Keenan reports that when she called Frahme about a month later, he told her that, to his own surprise, the policy has changed his behavior and he is now “practicing consent almost religiously.” Specifically, he checks for consent—with questions like “You O.K. with this?” and “Do you still want to go ahead?”—“once or twice during sexual encounters with women he knows well, and four or five times during more casual or first-time hookups.” And how’s that working? Frahme tells Keenan that “it’s getting to be a little more comfortable,” which is hardly a ringing endorsement; however, he also reports that one first-time partner thought his questions were a devious way of manipulating her into bed. Assuming that Frahme wasn’t pulling Keenan’s leg—just how many women is he talking about over a one-month period?—this raises the disturbing possibility that questions intended to elicit consent could be construed as a form of sexual pressure.

Keenan’s article, which also includes interviews with several young women, does contain one genuinely disturbing account of campus sexual violence. One of her female interviewees, a senior, told Keenan that her only sexual encounter during her four years at the school turned disastrous when her male partner became too physically aggressive and domineering, ignored her request to stop and her attempt to push him away, and covered her mouth with his hand as he forced himself on her. Dealing with this kind of sexual assault, in which the evidence often comes down to her word against his, presents a difficult challenge. But “consent policies” will do nothing to help: a man who is willing to physically coerce a woman into a sexual act, ignoring her verbal and physical resistance, won’t hesitate to claim that she verbally consented.

The Story of Tim

The type of male student most likely to be ensnared in “affirmative consent” policies, and the type of incident likely to be reclassified as non-consensual, is illustrated by a revealing story on Cracked.com, a website oriented toward young adults that combines a hip style with leftist cultural politics, titled “5 Things I Learned Committing A Campus Sexual Assault.”

The article tells the tale of “Tim,” a student who approached the website to tell the story of how he committed a sexual assault (the details of which were apparently confirmed by his university). During the summer, between semesters, Tim and his college friend “Vicky” went out for a night of bar-hopping during which they had four or five drinks each, held hands and engaged in sexual banter, stopped briefly at a sex shop, and then went to Vicky’s place where they sat down on the couch to watch DVDs with Vicky’s head resting on Tim’s chest. At some point Tim began rubbing Vicky’s back, then moved his hand down underneath the waistband of her jeans, encountering no objection—indeed, he thought she felt her shift toward him—and proceeded to stroke her breasts over and then under her shirt. According to the article, “This all went on for an hour or so” before Tim hugged Vicky good-bye and went back to his own room.

The next day, Tim was shocked when a friend of Vicky’s confronted him and told him that “people had gone to jail for doing what he’d just done.” While Vicky never went to the police (and it’s extremely unlikely that the police would have taken such a case), she did file a complaint with the college. Tim was found responsible, and while his only punishment was a reprimand, his life on campus has been turned upside down by the requirement to stay 50 feet away from Vicky.

According to Vicky, the reason she didn’t rebuff Tim is that she had dozed off, woken up to find Tim touching her, and “froze in fear.” This claim seems extremely far-fetched, given the intimate situation and the lack of any indication that Tim might be violent. (Since Tim does not sound like a sociopath, it also seems extremely unlikely that he would not notice Vicky was frozen stiff.)  If grown women are so fragile and so terrified of men, that’s a rather depressing statement about prospects for gender equality.

It’s hard to tell what actually happened in this case, especially since Tim, who is racked by guilt, is extremely anxious to avoid anything that may smack of “victim-blaming.” It may be that Vicky didn’t quite know how to tell him to stop and the incident was a genuine misunderstanding. It may be that she was more willing than she admitted to herself; Tim’s narrative repeatedly stresses that she was a “good girl” who would never agree to sex. (Both of them are religious, and the convergence of “progressive” sexual politics with old-fashioned sexual guilt is one of the curious aspects of the piece.)

Cracked.com author Ryan Menezes stresses that even if Tim innocently misread the signals, it doesn’t mean his “victim” was any less traumatized. But people have plenty of traumatic experiences that aren’t criminal. Stipulating for the moment that Tim should have been more attentive to Vicky’s signals, there were many possibilities for a non-punitive resolution—including, perhaps, university-provided counseling and mediation.

Would affirmative consent have helped avoid such a situation? Doubtful. It is easy to imagine a similar scenario in which Tim asks Vicky if she’s okay with this and Vicky nods or even says yes—and then makes a complaint within the campus system, claiming, in all sincerity, that she felt too intimidated to say no.

“Yes means yes” will not stop sexual predators. It will turn more sensitive young men like Tim into victims of a college “judicial” system rigged so that the accused virtually cannot win.

Two Federal Judges Misrule in Campus Sex Cases

Since March of 2014, federal and state courts have produced a run of decisions favorable to due process in campus sex cases. But in recent months, this welcome development has been reversed—most spectacularly in the deeply troubling decision in the Vassar case, but also in two recent decisions involving cases at Columbia and Miami (Ohio). In both, federal judges dismissed Title IX complaints filed by male students who said they had been falsely accused. The decisions suggest indifference to judicial oversight of college disciplinary actions, and imply that Title IX can be used solely as a sword to eviscerate due-process rights, but not as a shield to protect the civil liberties of students on campus.

Columbia

The first decision came from Judge Jesse Furman, regarding a lawsuit pseudonymously filed against Columbia. I had previously summarized the case, which involved a member of the Columbia crew team who was accused of sexual assault five months after a brief hookup. The accuser didn’t go to police or claim to anyone that she had been assaulted; she texted the accused student worried that if word of their hookup got out, it could affect their social standing. Both had been drinking, and the accuser subsequently complained that she was too intoxicated to have given consent. (There was, obviously, no medical evidence to verify this assertion.)

Columbia’s investigation and adjudication was cursory even by the weak standards that apply to college proceedings: the university didn’t speak to witnesses the accused student suggested who had seen accused and accuser on the night in question, and didn’t even tell the accused he had a right to an “advocate.” (So: facing a charge of rape, he represented himself.) Found culpable and suspended for three terms, his name was then leaked to the campus newspaper (along with Paul Nungesser’s in the “Mattress girl” case).

In a burst of bad luck for the accused student, the case came before Judge Jesse Furman. Three years ago, the Senate’s foremost opponent of campus due process, Senator Kirsten Gillibrand (D-New York), informed her colleagues that Furman’s “commitment to upholding fairness within our legal system is well regarded and highly respected.” Unsurprisingly for a nominee who received Gillibrand’s enthusiastic endorsement, Furman’s basic message to the accused Columbia student was simple: courts can do nothing, at least when the issue involves students denied due process in sexual assault cases. You can read the opinion here.

Judge Furman, who scowled that that the case before him was part of “what appears to be a growing phenomenon” of due process lawsuits, conceded that “Columbia may well have treated [the accuser] more favorably than Plaintiff during the disciplinary process.” But he had no interest in second-guessing Columbia’s actions, since the Court’s task was not to decide whether Columbia treated Plaintiff fairly or unfairly,” and dismissed the case.

Furman and Title IX

Furman bent over backwards to point out that reasons other than gender—a fear of negative publicity, or a fear of an Office of Civil Rights investigation—might have accounted for Columbia’s approach to the case. But, of course, plausible non-gender reasons exist as to why schools might allegedly, in the distant past, not have taken sexual assault complaints seriously enough. Yet OCR has been clear that the gender discrimination component of Title IX justifies the agency’s assault on campus due process. Furman added that a Title IX allegation must fail because the accused student had not included “any allegations that female students ‘were treated more favorably in similar circumstances.’” But this reasoning suggests that OCR’s approach to Title IX enforcement is similarly off-base. After all, while the overwhelming majority of campus accusers will be women, a small percentage of the total will be men—and presumably they, too, were treated in ways that did not fit OCR’s desires. Accepting the logic of Furman’s argument would make it inappropriate to suggest that the treatment of accusers constitutes a gender discrimination issue.

Unsurprisingly, Furman approvingly cited the Vassar opinion of his colleague, fellow Obama appointee Ronnie Abrams (though his opinion lacked Abrams’ crusading pro-accuser zeal). Unlike Abrams, he at least acknowledged that other courts had stood up for the due process rights of accusers, though he dismissed the reasoning of those cases.  Also unlike Abrams, Furman seemed to concede that at some point, accused students might be able to use Title IX to file due process suits. Perhaps ten or fifteen years down the road, when a sufficient database of mistreated students could be compiled (thereby gathering “information concerning a control group or the like”), his reasoning might allow such a lawsuit to go forward.

Miami’s Compromised Investigation

In late May, Judge Susan Dlott (like Furman, a Democratic nominee) issued a ruling that similarly construed Title IX as solely a sword. (You can read Dlott’s opinion here.) The case involved Miami (Ohio) student Matthew Sahm, who attended a fraternity party at the school on August 31, 2013. There, he met a fellow student, Alexis Prenzler; both were underage, both consumed alcohol, and they had some sort of sexual contact. Sahm said that when Prenzler asked him to stop—because, she said, she had a boyfriend and worried about cheating on him—he did. She then left the party with some friends. A few days later, however, Prenzler filed a complaint with the university, and she also told the Oxford Police Department that she had been raped, by an unknown assailant.

The case seemed open and shut, at least to Miami, which investigated and tried Sahm in three weeks. Sahm represented himself before Miami’s disciplinary board, and later claimed that at the hearing it was unclear whether he or Pretzler had the burden of proof—the sort of problem that can occur when a student accused of a felony offense represents himself. (Miami’s policy forbade Sahm from having an attorney represent him at the hearing.)

Only after being deemed a rapist did Sahm hire an attorney, who used a private investigator to look into the case. The investigator discovered that, according to six people who saw her immediately after the party, Prenzler had expressed the most concern about having cheated on her boyfriend, and denied having been drunk. One of these witnesses claimed that Prenzler had coached sorority sisters about how they should respond to the investigator’s questions. More explosively, she revealed that Miami’s Title IX investigator, Susan Tobergte, had discouraged her from testifying at the hearing—telling her that she needed to Google information about campus sexual assault to “find that less than 2% of sexual assault cases were wrongful convictions.” The student not unreasonably concluded that Miami’s allegedly impartial investigator was actually “biased toward one side of the case.”

As she “investigated” the case, Tobergte was also serving as a member of the university’s task force on sexual assault, which had produced a report claiming, without any hard evidence, that “as many as eight to nine women per week may be victims of sexual assault.” (For comparison, according to FBI 2013 crime stats, around twelve women per week were victims of sexual assault in Detroit, the nation’s most dangerous city—this amidst a population around 37 times larger than Miami University’s.) A report signed by Tobergte also claimed that many “college date rapists . . . did not see themselves as ‘real criminals,’” and that “some men may purposely get drunk when they want to act sexually aggressive, knowing that intoxication will provide them with an excuse for their socially inappropriate behavior.” It’s certainly plausible that someone who held such views could have prejudged Sahm’s case, since it involved alcohol.

Three other witnesses filed affidavits on Sahm’s behalf. One recalled seeing a distraught Prenzler shortly after the incident—distraught not because of an assault but because, she said, “I can’t believe I cheated on my boyfriend.” Another (a sorority sister of Prenzler’s) came forward because, “as a woman and a woman in a sorority, I think that making false accusations and presenting oneself as weak and a victim is extremely insulting.” She recalled that Prenzler had told several friends that she had initiated the sexual contact with Sahm because she “wanted to make sure that [she] didn’t just want to be” with her boyfriend. Perhaps because of such evidence, the police never filed charges against Sahm.

Indifference to Fairness

Miami nonetheless upheld the tribunal’s judgment on grounds that any such evidence was “available to [Sahm] at the time of the original hearing.” The university subsequently denied that gender bias motivated Tobergte’s conduct, suggesting a “benign” explanation (“such as an appropriate intent to take allegations of sexual assault seriously”) or at worst an “inappropriate but not discriminatory” motivation (“such as lack of experience in handling such investigations”) for the school’s investigator discouraging a relevant witness from testifying. Sahm was expelled from Miami, and was subsequently denied admission to Allegheny College after the school requested an explanation for why he had left Miami.

Judge Dlott conceded that it was “troubling” that the university’s Title IX investigator discouraged a student from testifying, apparently on grounds that the witness would say things that undermined the accuser’s tale. But she maintained that the university’s procedures, as revealed in the Sahm case, did not “suggest a gender bias against males so much as against students accused of sexual assault.” But, of course, the overwhelming majority of students accused of sexual assault will be male—just as the overwhelming majority of students who allege sexual assault are female. The latter fact justified OCR’s implication that robust procedural protections for the accused constitute gender discrimination, and therefore fall under the purview of Title IX.

As with Judge Furman, then, Judge Dlott dismissed Title IX as a dead letter for defending due process, even while conceding— albeit very reluctantly—that the university had set up adjudication procedures that were biased against the accused.

Columbia was a case with virtually no evidence. Miami was a case in which several key witnesses, who saw the accuser right after the party, disputed her tale (or simply thought she was lying), even as the school’s investigator discouraged one of them from testifying.

For two federal judges, students subjected to such biased procedures are simply out of luck.

WAPO’s Faulty Rape Poll Muddies the Issue

Rape is a serious matter. That is why it is unfortunate that a Washington Post-Kaiser Family Foundation poll, using a small student sample that does not distinguish between unwanted touching and rape, has concluded that 25 percent of college women are sexually assaulted every year.

On Sunday the Washington Post devoted half its front page and three full inside pages to this poll and sexual assault on campuses.

Yet if parents really thought that their daughters had a 25 percent chance of being assaulted when they went off to college, they would not place them in such danger.  Living at home during university years would be more prevalent and single-sex colleges such as Bryn Mawr or Smith would be more popular than Yale or Harvard.  Instead, women flock to coed universities, where they are awarded 58 percent of BA and MA degrees.

The Washington Post-Kaiser Family Foundation poll sampled 1,053 students aged between 17 and 26 at 500 colleges and universities across the country. This is a tiny fraction of the 21 million students enrolled in post-secondary education, not enough to be a representative sample.

As with a 2010 report by the Centers for Disease Control, which concluded that 18 percent of women have been raped at some time in their lives, the definition of sexual assault is overly broad and leads to misleading conclusions.  As well as traditional definitions of rape, it includes “forced touching of a sexual nature.”

Of course, this kind of behavior is unwanted and unpleasant, but defining it as sexual assault confuses the issue.

Perhaps the loose definition of sexual assault is why the Post stated that “students do not put sexual assault atop a list of possible concerns about their school” and “more than two-thirds gave their schools an A or a B in their handling of complaints.” According to the poll, only 37 percent of students thought that sexual assault was a serious issue on the campus.

In most of the cases described by the reporters, women are assaulted while under the influence of alcohol. They wake up not knowing whether they were raped or not. That’s probably why well over half the students polled thought that alcohol and drug abuse were problems.

The 2010 CDC survey whittled an original list of 201,881 phone numbers down to 16,507, only 8 percent of the original sample, and then asked ambiguous questions to gauge whether the respondents were victims of sexual assault.

For example, the survey asks, “When you were drunk, high, drugged, or passed out and unable to consent, how many people have had vaginal sex with you?” To a typical respondent, it is not clear whether the condition of “unable to consent” applies to “drunk, high, drugged,” or if “unable to consent” is a separate condition.

After the questions are answered, it was the surveyors, rather than the respondents, who determined whether the respondent had been raped.

Both the Washington Post-Kaiser Family Foundation and the CDC results clash with the Bureau of Justice Statistics data, which publishes an annual Criminal Victimization survey.  The latest data for 2013, released in September 2014, show rape/sexual assault rates of 1.1 per 1,000 people in 2013, down from 1.3 per 1,000 people in 2012, both reported and unreported rapes.

The popular view is that colleges are not doing an adequate job of protecting women on campus. The Office of Civil Rights of the Department of Education is requiring colleges to hire more administrators to investigate and stop sexual assault, adding to university bureaucracy and tuition costs. The Post calls for additional student training to encourage bystanders to step in when they perceive a problem.

In order to address the problem of rape it is important to have the right numbers. That’s why including unwanted touching and rape in the same category as sexual assault confuses the issue and prevents the development of real solutions.

The long Washington Post story included many interviews with women who had drunk too much and had sexual encounters that they regretted afterwards.  Some others who were not drunk were attacked by unknown men. These are different problems calling for different solutions.

It is clear that excessive drinking is contributing to cases of sexual assault.  The drinking age of 21 prevents open campus pubs or bars where students can drink together socially.  Instead, students binge in their rooms before parties. Binge drinking is more of a problem in the United States than in Europe, where the drinking age is lower. Perhaps the drinking age needs to be reconsidered so drinking can come out of the closet.

Traditional feminists used to say that women are strong and intelligent, that they can look after themselves, and that they can move into male-dominated professions and aim for the CEO’s corner office.  Curbing excessive drinking for both men and women is a good way to show strength and to avoid tragic occurrences.

The Washington Post and the Kaiser Family Foundation no doubt mean well with their survey.  But their alarming results clash with reality. Young American women are neither naive nor foolish nor merely passive victims. They do not go to college to face a 25 percent likelihood of being raped. Nor do their parents place them in such situations.

Far fewer but still all too many women actually are raped each year. Some are on college campuses. Many are not. Their trauma and suffering are trivialized by reporting that conflates unwanted touching with rape.  It is time the Washington Post and the Kaiser Family Foundation focused on the real victims of criminal rape.

Did ‘Mattress Girl’ Tell the Truth?  Not Very Likely

At least for now, Columbia’s mattress saga is over. Emma Sulkowicz, the student who spent her final year on campus toting a mattress to protest the school’s failure to punish her alleged rapist, graduated at the end of May; so did Paul Nungesser, the accused man who says he’s the real victim.

There was more drama at graduation: Sulkowicz toted her mattress onstage in defiance of school regulations and later accused Columbia president Lee Bollinger of snubbing her. In related news, posters branding Sulkowicz a liar cropped up near the campus; Nungesser was reported cleared on the last sexual assault complaint against him, this one from a male student; and, the next day, one of his two anonymous female accusers told her story on the feminist blog Jezebel.

An attempt at summing up this messy saga and its lessons comes from Emily Bazelon via Sunday’s New York Times Magazine. Bazelon admits that l’affaire Sulkowicz drama highlights major problems with the current system of Title IX-based campus “justice”—including “utter lack of transparency,” which is not a bug but a feature of the system: federal law stringently protects the privacy of students involved in disciplinary cases. As a result, in an alleged rape case that has attracted international attention and scrutiny, we are mostly left with he said/she said accounts not only of what happened between Nungesser and his accusers, but of how the complaints were handled by the university. The records exist, including transcripts and video recordings of the hearings; but they are off-limits and likely to remain so.

Dispensing with Due Process

Bazelon believes this fiasco is a result of the current system’s growing pains—of “a transitional period in the evolution of how universities handle sexual assault.” But it’s hard to see what reforms would fix the problem. Even if school staff are better trained to investigate sexual misconduct reports—assuming that “better training” actually means more effective fact-finding, not more faithful adherence to believe-the-survivor dogma—this would not address the underlying issue: that activists like Sulkowicz want to dispense with any semblance of due process and refuse to respect any result other than culpability and punishment.

(Incidentally, while Bazelon correctly notes that “rape is extremely difficult to prosecute both effectively and fairly,” the kind of violent attack that Sulkowicz alleges—an excruciatingly painful anal rape during which she was hit in the face, choked within an inch of her life, and pinned by the arms—would be quite easy to prove, at least if promptly reported to the police. The physical evidence would have been overwhelming.)

One lesson of this case Bazelon doesn’t mention is that if universities are going to have rules for the disposition of Title IX cases, they need, at least, to enforce those rules in a fair and meaningful way. As Nungesser’s lawsuit against Columbia points out, all the parties in sexual misconduct cases are urged to do what they can protect the confidentiality of the process and the privacy of all those involved. Sulkowicz has repeatedly violated that rule with impunity; the male accuser, known as “Adam,” talked to Jezebel about his complaint while it was still under investigation, apparently with no consequences.

On Fulsome Display

Columbia’s craven acquiescence to Sulkowicz’s activism was on fulsome display in the graduation dust-up. A university email sent the previous day had reminded students not to bring large objects into the ceremonial area. When Sulkowicz arrived toting her mattress, she was apparently asked to stow it away for the ceremony; she refused, and she and her helpers were finally allowed onstage anyway. The university’s official statement, emailed to me by director of communications Victoria Benitez, noted, “We were not going to physically block entry to graduates who are ultimately responsible for their own choices.” In other words, compliance with the rules is a personal choice.

Another lesson is that the media need to exercise due diligence and skepticism when it comes to “survivor” narratives: not to treat accusers as presumptive liars, of course, but to ask questions and do the fact-checking. (In other words, “trust but verify.”) That is something journalists egregiously failed to do for months, when Sulkowicz’s narrative went unchallenged amidst massive publicity. The mainstream coverage today is much more balanced; Bazelon clearly presents this as a story with two sides and mentions some of the exculpatory evidence, including Sulkowicz’s chatty Facebook messages to Nungesser after the alleged rape.

Yet even now, failure to verify remains a problem. No one, as far as I can tell, has followed up on Sulkowicz’s claim (made in the annotations to her Facebook messages for Jezebel last February but never mentioned before or since) that the day after she was allegedly raped by Nungesser, she talked about it to a female friend “who explain[ed] it was rape.” If such a corroborating witness exists, why did she not testify at the hearing or come forward to support Sulkowicz? Can Sulkowicz give this friend’s name to journalists, at least on the condition that she won’t be publicly identified?

To state the obvious, the truth in this story is ultimately unknowable. But here’s what we do know.

Kept up A Friendly Act

Sulkowicz’s account of her rape strains credulity to the extreme. Sulkowicz accuses Nungesser of an extremely brutal assault that should have left her visibly injured (with bruises not only on her face but on her neck and arms, unlikely to be covered by clothing in August and early September in New York) and in need of medical attention. Yet no one saw anything amiss after this attack, and both Nungesser and Sulkowicz went on to chat and banter on Facebook as if nothing happened. Sulkowicz’s claim that she kept up a friendly act hoping to confront him about the rape seems extremely dubious, given the near-psychotic violence she alleges and the lack of any sign of unease or tension in their online conversations. (When I reread these archives recently, I checked the timestamps to see if there were any awkward pauses; there weren’t, not even when Nungesser asks Sulkowicz to bring more girls to his party and she replies, “I’ll be dere w da females soon.”)

Is Sulkowicz a “false accuser”? We don’t know that. It’s possible that something ambiguous happened between her and Nungesser that night—something that she later came to see as coercive and embellished with violent details. But I would say the odds of her account being factually true are very low.

Sulkowicz has demonstrable credibility problems.A few examples:

  • As Nungesser’s lawsuit notes, at one point in spring 2014 Sulkowicz wrote that she lived in daily terror of encountering her rapist on campus—while another statement she made around the same time shows that she knew he was spending a semester in Europe.Prior to her claim that she spoke to a friend the morning after the alleged rape, Sulkowicz had sometimes asserted that she didn’t tell anyone for several months, sometimes that she told a few friends.Last fall, Sulkowicz told the Times’ Ariel Kaminer that after filing a police report, she had elected not to pursue criminal charges because the process would be “lengthy” and “too draining.” Now, she tells Bazelon that she stopped talking to investigators because “the police were visiting her apartment unexpectedly.”
  • The multiple charges in this instance do not make for a stronger case because they are demonstrably linked to each other; what’s more, there is evidence backing Nungesser’s claim that he was targeted for a vendetta based on the belief that he had raped Sulkowicz.
  • One of the other two female accusers, “Natalie”—Nungesser’s freshman-year girlfriend—filed a complaint after talking to Sulkowicz and (in Sulkowicz’s words) delving into their “shared trauma.” Her complaint was dismissed for lack of evidence after she stopped cooperating with investigators. Nungesser’s lawsuit says she claimed she felt obligated to have sex with him; Natalie herself told Bwog, the Columbia campus magazine, that he would often forcefully pin her arms back during sex and that she often cried when they were in bed. (She struggled with major depression during their relationship.)

Rape or Drunken Pass?

  • “Josie,” the accuser who authored the piece for Jezebel, admits that she filed her complaint with the encouragement of a “friend” who told her that Nungesser had been accused of raping another woman. As I have previously reported, that friend—to whom I have referred by the pseudonym “Leila”—was an officer in the Alpha Delta Phi coed fraternity to which Nungesser, Sulkowicz, and Josie all belonged. At the time, Leila was trying to get Nungesser ejected from the ADP residence because of Sulkowicz’s charges. (Josie also lived at the house; Sulkowicz did not.)Josie’s charge is the only one on which Nungesser was initially found culpable; that finding was later reversed on appeal, and a second hearing exonerated Nungesser after Josie declined to participate.Josie has given somewhat contradictory accounts of her decision to withdraw from the process. Among other things, she has repeatedly stressed that she had graduated from Columbia by then, without mentioning that the first hearing also took place months after her graduation in May 2013. (According to the timeline compiled by Nungesser’s parents, the original hearing was held September 26; the appeal was granted on October 28, and the second hearing was on December 13.)Even if Josie’s story is true, her complaint hardly corroborates Sulkowicz’s accusation. Sulkowicz is alleging a brutal rape; Josie is alleging a boorish drunken pass at a booze-soaked frat party. She says that Nungesser followed her upstairs after offering to help restock the bar, then tried to kiss her and pulled her toward him despite her protestations, until she pushed him off and left. Such behavior may meet the definition of sexual assault on the modern campus, but it is hardly the mark of a violent sexual predator. Josie herself says she did not think of it as “sexual assault” until she heard about the alleged attack on Sulkowicz.
  • The last and fourth charge from “Adam” has been all but definitively exposed as a fabrication, as I wrote on Reason.com last month after reviewing a leaked internal report by Columbia Title IX investigators. The report describes Adam as a highly “unreliable” complainant, partly because social media records contradicted his version of his interactions with Nungesser and backed Nungesser’s. Adam also made bizarrely paranoid claims that Nungesser “retaliated” for his complaint—before the complaint was filed—by sitting too close to him and his friends in class and complimenting a point he had made in a class discussion.The document also reveals that Adam first made his allegations to Leila while she was collecting accusations of sexual misconduct against Nungesser in the wake of Sulkowicz’s charge. Without explicitly confirming the existence of a vendetta, it notes that “at the time of the Complainant’s initial disclosure, at least several of his close friends … were [seeking] to evict the Respondent from the fraternity house.” Adam was a close friend of Natalie’s; Nungesser’s lawsuit also alleges he is a close friend of Sulkowicz’s.

Uncritical Reporters

While this is purely speculative, it is also interesting to note that the accusations against Nungesser first emerged in the immediate aftermath of the Steubenville, Ohio rape trial in February-March 2013, when the moral panic about “rape culture” reached fever pitch in the media and “sexual awareness” events proliferated on college campuses. Is it possible that this atmosphere of hypercharged rhetoric about the ubiquity of sexual violence and its tacit toleration by American society encouraged at least some of the complainants to reinterpret their own experiences as assaultive?

With Nungesser’s lawsuit still pending, the story is certain to be back in the news. Perhaps, by the time it reaches its next round in the news cycle, the journalists who cover this case will learn some of its lessons and ask the hard questions.

In the meantime, there is certainly enough evidence to grant Nungesser the benefit of reasonable doubt not only in legal disciplinary proceedings, but in the court of public opinion. That is something he has been denied by Sulkowicz’s campaign and its mostly uncritical media reception.