Tag Archives: campus sexual assault

Duke Reports a Sexual Assault Rate 5 X as High as Our Most Dangerous City

Over the last few years, we have become all but immune to what, under any other circumstances, would be a fantastic claim—that one in five female undergraduates will be victims of sexual assault. This rate would translate to several hundreds of thousands of violent crime victims (with almost all of the incidents unnoticed) annually, and, as Emily Yoffe has pointed out, implies that about the same percentage of female college students are sexually assaulted as women in the Congo where rape was used as a war crime in the nation’s civil war.

Even within this environment of pie-in-the-sky statistics, a recent survey from Duke stands out. According to the survey, 40 percent of Duke’s female undergraduates (and 10 percent of Duke’s male undergraduates) describe themselves as victims of sexual assault. This data would mean that each year, a female undergraduate at Duke is 5.5 times more likely to be a victim of violent crime than a resident of St. Louis, which FBI statistics listed as the nation’s most dangerous city in 2016. And yet, incredibly, parents still spend around $280,000 to send their daughters into this den of crime for four years.

But 88% of Women Feel Safe

As always occurs with these surveys, the internal data renders them highly unreliable. But in this case, the internal data suggests a survey at war with itself. A few examples:

The survey indicates that 88 percent of female undergraduates say they feel safe on campus. So—at a minimum—28 percent of Duke female undergraduates say they feel safe at a school where they experienced sexual assault. Similarly, 74 percent of female undergraduates consider sexual assault a big problem on campus—meaning that at a minimum, 52 percent of female undergraduates feel “safe” on a campus where they think sexual assault is a “big problem.”

The most startling rate of self-described sexual assault victims comes among lesbian and bisexual female undergraduates, 59 percent of whom say they were sexually assaulted while at Duke. And yet, according to a later table, zero female undergraduates list a female as the perpetrator of their assault. Even assuming that every bisexual student surveyed said she was assaulted by a man, this figure would suggest that a significant portion of Duke lesbians are having some type of sexual contact with men (nearly all of whom, it appears, then turned out to have been sex criminals). Could anyone take such data seriously?

If true, these figures would suggest a violent crime epidemic not merely for Duke but for the city of Durham. Significant percentages of the alleged sexual assaults occurred in a category described as “off-campus/local,” thus falling within the jurisdiction of the Durham, rather than the Duke, Police Department. Yet no signs exist of the Durham Police paying more attention to this purported crime wave in their midst, or that the Duke leadership has asked them to do so.

‘Fundamentally Unfair” to Men

At heart of the issue is the extraordinarily broad definition of sexual assault—a term with a common cultural and legal understanding—used in surveys like the Duke one. The survey lumps together being “touched or grabbed” in an unwanted way (61 percent of the self-described victims) with sexual assault by force or threat (22 percent of the alleged victims) as if the severity of the offenses were the same. Even the survey takers appear to recognize the folly of this approach; 41 percent of self-described female sexual assault victims describe the experience of being sexually assaulted as not very upsetting—or not upsetting at all. The university’s response? Asking whether this figure indicated “a need for broadly disseminated programming on the impact of sexual misconduct.” Duke already has increased “the number of staff providing counseling and support services and conducting investigations.”

Perhaps the saddest item from the survey: 57 percent feel that students accused of sexual assault are treated fairly. They’re responding to a system in which Duke has had two negative judicial decisions, the most recent of which featured Judge Orlando Hudson characterizing the Duke procedures as “fundamentally unfair.” There is, of course, no reason to believe that most students have any idea just how unfairly Duke treats students accused of sexual assault.

Why Won’t the Media Review the Campus Rape Book?

Campus Rape Frenzy, the new book by KC Johnson and Stuart Taylor. Jr. deals with the gross unfairness and lack of due process for males accused of sexual assault on campus. It has been reviewed by The Wall St. Journal, National Review, The Daily Caller, American Conservative, Real Clear Politics and Campus Reform. Notice any trend in that list? Yes, they are all conservative outlets.

So far we haven’t noticed any mainstream or liberal outlet reviewing the book, though it’s possible that we or Google have missed one or two. MTC didn’t expect The New York Times to review it since The Times rarely reviews conservative books. In this case, the book demonstrates that in one case after another The Times produced slovenly, misleading and inaccurate reporting on the subject as it did in the Duke lacrosse fake rape case. But all, or almost all, other outlets boycotted the book too? Under pressure from campus feminists and liberal orthodoxy, our press corps, like our universities are signing on to massive dishonesty.

Here is an anonymous online commenter making a similar point:

“I’m trying this on for size for why I avoided the book. The book is simply too depressing and discouraging. We have gotten to the point that, under powerful pressure from the Federal government and others, most of our universities, supposedly the bedrock of our intellectual life and important repositories of our knowledge of the past, have created systems that are massively unfair and inconsistent with our historic principles of justice.

The average person dares not question this massive apparatus without the high risk of personal or professional woe and possibly destruction. The underlying source of this is the power of the state, which has taken a well-intentioned statute and turned it into a weapon of political and cultural destruction. This has happened in plain sight. Our politics, our media, our educational leaders and so far our courts have proved to be timorous and so far ineffective counterweights to this power. I already know this. It’s discouraging to drag myself through it again.”

Obama OCR Moves to Deter Any Trump Reform

As the Obama administration draws to a close, opponents of campus due process have launched an aggressive public relations campaign on behalf of their agenda, lest change comes with a new regime in the White House.

The highest-profile effort came from Joe Biden, who penned an open letter to the presidents of the nation’s colleges and universities urging them to continue to meet the “epidemic” of campus sexual assault. (This is seemingly the only violent crime “epidemic” in American history in which law enforcement is to have little or no role.)

Perhaps the most striking item in Biden’s letter was his assertion that “twenty-two years ago, approximately 1 in every 5 women in college experienced rape or sexual assault. Today, the number is the same.” Setting aside the absurdity of the statistic (which would imply hundreds of thousands of unidentified victims annually, just among college students), this claim amounted to an admission that the admission’s war on campus due process has done nothing to lower the number of sexual assault victims—which, according to Biden, is at the “same” percentage as 1995.

The Vice President did not once mention due process or civil liberties in his letter.

As Biden released his letter, Democratic senators Bob Casey and Patty Murray pressed the incoming Trump administration to retain Obama’s interpretation that Title IX requires schools to use the lowest standard of proof in sexual assault cases, give sexual assault accusers the right to appeal not-guilty findings, and discourage procedures in which sexual assault accusers can be cross-examined about their allegations.

Portraying campuses in the midst of an unprecedented wave of violent crime, the senators contended that “campus sexual assault is a widespread problem affecting millions of college students across the nation.” The senators did not identify the source for their claim that “millions” of college students are affected by sexual assault. Nor did they explain why these “millions” of crime victims should not be an immediate priority of the nation’s police.

Accusers’ rights groups such as Know Your IX got into the act with a social media campaign demanding that incoming Education Secretary Betsy DeVos make no changes to the Obama administration’s Title IX policies. The implicit message: any effort to restore due process or a semblance of fairness to campus tribunals will be denounced as hostile to “survivors.”

But perhaps the most consequential move to retain the war on campus due process came outside of the public eye. On January 4, the Harvard Crimson broke the news that Harvard’s Title IX administrator, Mia Karvonides, was planning to depart her position abruptly. Karnovides had overseen one of the most unfair adjudication systems for campus sexual assault anywhere in the country.

Karnovides’ new position? Enforcement Director at the Office for Civil Rights (OCR), the agency that has served as the center of the war on campus due process during the Obama administration. Her starting date? January 18, or two days before Barack Obama leaves office. It seems unlikely that Karnovides would have accepted the new position if she lacked civil service protections.

The midnight appointment can only be interpreted as placing a key figure in the bureaucracy to disrupt any Trump administration effort to restore a sense of fairness to Title IX enforcement. Will the new administration respond?

Ruined by the Beach Boys and Other Title IX Disasters

In the latest expansion of the intent of Title IX, a University of Kentucky Professor drew punishment this month, partly, he says, because he was found to have engaged in “sexual misconduct” by singing a Beach Boys song at a university gathering in China last year. The professor, Buck Ryan, who directs the University’s Scripps Howard First Amendment Center, claimed in an op-ed published in the Lexington Herald Leader  that “under Administrative Regulation 6:1, Discrimination and Harassment, University of Kentucky’s Title IX coordinator ruled that the song, “California Girls,” with names of Chinese universities and cities inserted for the event,  included ‘language of a sexual nature’ and was offensive.”

Although there were no student complaints—essentially no victims—the professor who has three decades of college teaching experience, was refused due process—as is the case for most accused males in Title IX cases—and has been stripped of a prestigious award worth thousands of dollars.

A heavily redacted letter, released by the university, says that no charge of having sexual relations is involved in the case against Ryan, but leaves the impression that Ryan did something major. On December 20, an op-ed in the Louisville Courier-Journal by University PR man Jay Blanton said the Beach Boys song was not the key factor in the case and that Ryan had engaged in “inappropriate touching” and “language of a sexual nature.” Still, no formal hearing, no clearly stated charges and no on-the-record complaining witnesses, but a heavy financial loss and damage to Ryan’s reputation.

Related: The Title IX Mess: Will It Be Reformed?

In comments to the university senate Monday, Ryan said, “UK has weaponized its Title IX office and made the legal office its enforcer. It’s time the faculty stands up to the bully.” Ryan added that the Chinese students at the event, none of whom were contacted by the university, “found the charges against me mortifying and wanted to defend me. They were looking to clear their names, too.”

Since its passage in 1972, Title IX has been expanded from its original intent to end discrimination on the basis of sex in schools that receive federal funding, to include regulations promulgated in the name of preventing a hostile environment for women—broadly defined as “any unwelcome conduct of a sexual nature.” Today, any unwelcome comment to a female student from a male student, faculty or staff member is grounds for a Title IX investigation—with Title IX coordinators empowered to act as police, judge and jury in allegations of sexual harassment ranging from offensive speech to claims of rape.

Harvard canceled the men’s soccer team season because team members sent emails to each other rating women on their physical attractiveness. Columbia University followed suit by canceling the wrestling season after “misogynistic and homophobic” text messages were found to have been sent by members of the team.

This was never the intent of Title IX.  While Presidents Reagan and Bush enforced the original intent of Title IX, the overreach of the law began in 1996 with an ominous “Dear Colleague” letter sent from President Clinton’s Education Secretary to all college and university administrators.  Warning that colleges that did not ‘equalize the participation’ of males and females in athletics, would lose federal funding, the Clinton administration mandated that if the schools could not produce enough female athletes, they would have to cut male athletes—and male athletic programs—until the participation rates of both sexes were exactly the same.

That was just the beginning. While the George W. Bush administration did not expand Title IX, it did nothing to curb the abuses. And, once the Obama administration took power, the Title IX industry that had been created was so confident in its ability to manipulate gender politics on campuses throughout the country, that a whole new set of “Dear Colleague” letters began to arrive on campus in 2011. Enlisting the U. S. Education Department’s Office for Civil Rights to handle all complaints in very specific ways, the “Dear Colleague” letters required colleges to be responsible for harassment and assault that occurs off-campus as well as on-campus.

Related: How the Feds Use Orwell to Apply Title IX

The Obama administration also allowed a lower standard of evidence to “prove” the guilt of the accused. A “preponderance of evidence” standard replaced a “guilt beyond a reasonable doubt” standard.  And, as in the University of Kentucky case, there are no protections for the academic freedom of professors and the free expression of any male student, professor or staff member on or off campus.  There is no right to due process no right to an attorney for the accused—and sometimes, no appeal process allowed.

President Obama’s overreach has caused an explosion of cases. Even Brett Sokolow, who in 2014 as director of the Association of Title IX Administrators, acknowledged in a newsletter to members that in their efforts to enforce Title IX, “they are running afoul of Title IX.”  Claiming that colleges are getting it “completely wrong,” Sokolow advised campuses that “every drunken sexual hook up is not a punishable offense.”

Sokolow knows that colleges and universities have implemented Title IX so poorly that the Office of Civil Rights is currently investigating more than 200 institutions following complaints that the colleges and universities have mishandled sexual misconduct cases.  In just the past few months, lawsuits were filed by students claiming “unfair treatment” at Albany Medical College, the College of St. Benedict and St. John’s University, Shenandoah University, the University Cincinnati and the University of Maryland.

This follows high-profile lawsuits at Occidental College, Columbia University and the University of Tennessee.  Several of these lawsuits have been successful in vindicating the male student, and actually holding college administrators accountable.  Earlier this year, an Ohio federal judge allowed an Ohio State University student’s due process claims to survive a motion to dismiss, holding that the campus Title IX training at the Ohio State University may have “biased Title IX panel members,” allowing the plaintiff to proceed against OSU’s Title IX Coordinator.

Related: Title IX Tramples Free Speech and Fairness, So Now What?

In October, the Office for Civil Rights found that Wesley College in Delaware violated the Title IX rights of a male student who was accused of sexual assault—citing unfair treatment.  And, a  federal appeals court revived a lawsuit by a Columbia University male student who alleged that the university had subjected him to sex discrimination during its investigation of a sexual assault report against him.

For the unjustly accused, the ability to bring these lawsuits are themselves a victory because they reveal that colleges and universities have not been complying with their own procedures.  In most cases, accused students are not given due process – they are denied a chance to respond to allegations, they are not informed of their options for resolving the complaints, they are not given copies of the incident report or other evidence against them before the hearing, they are not allowed to call witnesses on their behalf, and they are often denied legal representation.

Last year in a case at the University of  California, San Diego, Superior Court Judge Joel M. Pressman found that the accused student was impermissibly prevented from fully confronting and cross-examining his accuser and that there was insufficient evident to back the university’s findings that the male student had forced the accuser into sexual activity without her consent. Ordering UC San Diego to drop its finding against the male student, the judge quipped that “When I finished reading all the briefs in this case, my comment was Where’s the kangaroo?”

These campus tribunals are indeed kangaroo courts. A forthcoming book (January 24) The Campus Rape Frenzy, by K C Johnson and Stuart Taylor, draws upon data from two dozen of the hundreds of cases since 2010 in which innocent students have been branded as sex criminals and expelled or otherwise punished by their colleges.  It shows why all of us are harmed when universities abandon the pursuit of the truth—and “accommodate the passions of the mob.”

For those of us who are concerned about free speech and equal protection for all students, the selection of Education Secretary, Betsy DeVos is encouraging.  But, Secretary DeVos will be battling an entrenched anti-male campus culture and the Chronicle of Higher Education has already published a warning that: “Trump Administration May Back Away from Title IX, but Campuses Won’t.”

Taking on the sexual assault industry that has been built up on the backs of innocent male students will be difficult, but President-elect Trump—no stranger to false allegations himself—has already shown a willingness to speak for those who have been silenced.

The Title IX Mess—Will It Be Reformed?

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

College hearings on sexual misconduct are often a travesty of justice. Usually, there is no attorney for the accused, no cross-examination, no discovery, no note-taking, little time for the accused to prepare and often a form of double jeopardy (the accuser can appeal but the accused cannot). Individual universities can broaden the definition of offenses (at Yale “economic abuse” counts as sexual assault) and uninvolved third-party accusations can sometimes launch hearings.

Some comments on what should, and should not, occur:

The Fate of Obama-Era Guidance

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority.

Related: How the Feds Use Orwell to Apply Title IX

But the arrogance of Lhamon and her predecessor, Russlynn Ali, means that the 2011 “Dear Colleague” letter—and OCR’s even more troubling 2014 guidance, which suggested that OCR’s imaginative interpretation of Title IX could trump the constitutional protection of due process promised to all students at public universities—can be withdrawn without going through the notice-and-comment process.

Given the Access Hollywood tape, it might well be politically impossible for a Trump administration to simply withdraw the 2011 and 2014 “guidance.” But another avenue for action exists, including the FIRE-orchestrated lawsuit filed by a former University of Virginia student and by Oklahoma Wesleyan University. The new administration could easily enter into settlement negotiations for the lawsuit and concede the inappropriateness of issuing new regulations on all colleges and universities outside the APA’s requirements.

If this doesn’t occur, Congress becomes all the more important. The two people to watch are Lamar Alexander and Oklahoma Republican James Lankford. The Oklahoma senator issued an encouraging statement the day after the election, noting that the Education Department had “used Dear Colleague letters and guidance documents to mandate policies for schools without adhering to legally required regulatory processes. It is extreme overreach at agencies like the Department of Education that the American people repudiated in this election. I will push our new Republican-led Washington to put a stop to this abuse and restore proper regulatory and guidance processes to the federal government.”

Related: How Title IX Became a Policy Bully

Accusers’ rights organizations seem to have recognized that, at the very least, the anti-due process agenda of the current OCR might be discontinued in the next administration. And so, as the Chronicle recently reported, they’ve ratcheted up pressure on colleges to maintain the current unfair procedures that the Ali/Lhamon-led OCR helped to establish.

Yet even the most extreme of the activist groups—Know Your IX—has conceded that colleges are obliged to provide “fair” processes. (The group’s founders, Alexandra Brodksy and Dana Bolger, have defined “fair” in Orwellian terms, but they nonetheless use the language.)

Early in her tenure, Russlynn Ali made clear that the new OCR would welcome Title IX complaints from accusers angered at their college having returned not-guilty findings, or simply not rendering a guilty finding quickly enough. The new OCR could make clear that given the manifest unfairness of most college disciplinary systems on sexual assault matters, it would welcome complaints from accused students, to give the federal government a chance to counteract the improper pressure to keep disciplinary systems unfair. The resolution of the pending Title IX complaint against Brandeis—in a case that was the subject of the piercing opinion by Judge Saylor—could provide a template.

Along these lines, resolution agreements from OCR should restore earlier principles (from the Bush II administration) that colleges aren’t obligated to reinvestigate claims where a criminal complaint has been filed; and that colleges aren’t obligated to investigate allegations that occur off campus.

Distractions

Over the past five years, only a handful of politicians have paid any attention to the issue of campus fairness; as Christina Hoff Sommers presciently noted, “due process has no lobby.” Scores of GOP legislators and governors, on the other hand, rose up as one against OCR guidance regarding bathroom policies for transgender school kids.

For advocates of campus due process, then, the great fear is this: given Republican priorities, the new administration will focus its OCR reform agenda on eliminating protections for transgender public school students—a move that will receive fierce political resistance—and therefore will decide not to address the campus due process issue at all.

Related: The Feds Now Run a Bureaucracy That Regulates Sex

Any comment on a Trump-led OCR has to address what was avoided. While OCR under Obama was disastrous for due process, the crusade always had a surreal element to it. Obama, after all, was formerly a constitutional law professor, and also someone who was willing to stand up for campus civil liberties (albeit only in the free speech context). Even as his administration eroded due process rights for accused students, there was always the chance that a President with Obama’s beliefs would recognize he had gone too far.

No chance would have existed for such a course correction under Hillary Clinton, had she been elected. (Full disclosure: I am a Democrat who donated to, and voted for, Barack Obama in 2008 and 2012. My only federal political donations in 2016 went to Jason Kander, who narrowly lost in the Missouri Senate race.) To the extent that Clinton had any consistent beliefs, they revolved around a fierce connection to gender-based identity politics. And there was no doubt as to how these beliefs would have translated on campus.

Clinton’s campaign began with an official policy toward campus sexual assault—that all accused students who could not prove mistaken identity were guilty since all campus accusers had a “right to be believed.” Even Obama’s OCR, as extreme as its approach toward campus due process had been, never adopted such a policy. Clinton withdrew the line only after she was asked how it would apply to her husband’s accusers, but there seems little doubt that she would not have granted the same degree of skepticism for students accused of sexual assault on campus.

It also seems likely that a Clinton OCR—perhaps with Lhamon staying on for a second stint in charge of the agency—would have more aggressively targeted campus free speech. The University of Montana “blueprint” (imposed by OCR and the Justice Department) supposedly was abandoned after a public outcry. But its basic principles were quietly extended to the University of New Mexico and could have formed a national template under four years of Clinton.

In a Clinton presidency, Title IX would have been used as a sword against fairness and due process. If nothing else happened last Tuesday night, that outcome appears to have been avoided.

Yale Defends Its Star Chamber Hearings

The Obama administration, acting through the Office of Civil Rights, has made a terrible mess out of sexual misconduct hearings on our campuses, but it did one good thing without thinking much about it: it targeted one university—Yale—for regular reports on how it dealt in sexual assault hearings.

The reports, released by Deputy Provost Stephanie Spangler, are bare-boned and hardly meant to be informative, but they have included enough information to demonstrate the fundamental unfairness of Yale’s procedures and the witch hunt atmosphere that has permeated the campus. Perhaps for this reason, OCR has avoided instituting a reporting requirement like Yale’s on any other institution.

Recently, Yale’s dubious policies came under higher-than-usual scrutiny, thanks to a perceptive Wall Street Journal op-ed from Jennifer Braceras—who correctly noted that the accused enjoyed far more rights under the notorious Star Chamber than they do in Yale’s sexual assault disciplinary tribunals. Jack Montague, Braceras noted, discovered first-hand just how unfair Yale’s procedures could be.

He had no right to direct cross-examination, no right to have a lawyer fully participate in the process, and received a judgment from a “trained” panel that seemed predisposed to find guilt. He also was charged in seeming violation of Yale guidelines, which (as Spangler explained at the time) did not apply to cases like Montague’s, where the accuser declined to file a complaint.

Braceras’ op-ed generated a response, from Yale professor David Post, an aquatic ecologist who chairs the University-Wide Committee on Sexual Misconduct (UWC). Post deemed Braceras’ comments an “affront” to him, noted that many Yale cases end with no punishments, and gushed about “Yale’s multilayer process,” which “allows parties to submit and respond to evidence, engage legal counsel, submit questions for a hearing panel to ask the other party and file an appeal to the university’s highest levels. Each complaint is investigated by an outside fact-finder.”

According to Professor Post, “Yale’s process is honest, fair, transparent and respects privacy.”

First of all, here’s a statement on the Montague lawsuit, offered to the Hartford Courant, by a Yale public relations staffer: “Yale always respects the privacy and confidentiality of all students involved in a disciplinary process. Yale’s procedures for addressing allegations of sexual misconduct are thorough and fair. Allegations are investigated by an impartial fact finder, heard by five trained members of the Yale community, and decided by the accused student’s dean.

Throughout the process, all parties have advisers, which can be legal counsel, and they can appeal a decision.” Previous Yale statements also had stressed the fact that not all accused students are found guilty (citing the same statistics as Post), in following the outlines laid out by Judge Furman’s opinion in the Columbia case. Apparently, no one told Post that the Second Circuit had overruled Furman.
The remarkable similarities between the earlier Yale publicity statement and Post’s letter—which ostensibly contains his own words, and reflects his own thinking, not that of a Yale public relations officer—raises some questions about the professor’s “honest[y].”

As to the other qualities of Yale’s procedures: I’m sure that Montague—like Patrick Witt before him—was surprised to discover Yale’s commitment to respecting “privacy.” Indeed, after Montague left the team, Yale’s Women’s Center released a statement “speculat[ing]” that “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.”

The claim of transparency also intrigues. This assertion was the major difference between Professor Post’s letter and the earlier statement from Yale’s p.r. office (which, wisely, made no mention of the concept). It’s not clear why Professor Post added the claim since Yale’s process is anything but transparent. It’s closed to the public. The university has refused to release the “training” all UWC members receive. And Yale makes no promise to share with the accused students all the evidence the purportedly independent “fact finder” uncovers.

As for the claim of Professor Post—and Yale’s spokesperson—that the university’s process is “fair”: even as last year’s protesters demanded a more “diverse” English fare, it seems that Orwell is alive and well on the New Haven campus.

The Attack on Heterosexual Sex on Campus

When spiked’s law editor Luke Gittos decided to write a book on ‘rape culture’ he must have known it was likely to cause him a lot of trouble. Gittos is a privileged, white, London-based, (possibly cis-gender) male lawyer who claims no experience of forced sex. His book could not be more of a challenge to the current zeitgeist.

Hence, there will be those who say his privileged, white maleness disqualifies him from speaking out on the issue of rape, and that this book, Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans, is a ‘mansplaining’ display of insensitive arrogance by someone with no sense of women’s experience. Others will probably be tempted to dismiss any man who writes a book challenging ‘rape culture’ as an attention-seeking controversialist intent on provoking feminist fury. The publisher should probably have issued a Twitterstorm alert.

But such attempts to dismiss the relevance of Gittos’s arguments would be mind-numbingly stupid. Because, despite his gender and background (neither of which are his fault), Gittos has produced a useful and intelligent analysis that clarifies and makes sense of an issue that has become very muddled.

Related: Feds Lurch Toward Due Process in a Campus Sex Case

Gittos’s tightly written polemic argues against the accepted view that we live in a society in which misogyny and everyday sexism have created a so-called rape culture, in which rape is pervasive, underreported and ignored. He does not believe that the police and the law courts are failing women by failing to convict rapists. On the contrary, Gittos argues that the obsession with a ‘culture of rape’ has seriously distorted our view of sexual violence, and that the expansion of laws to protect women is eroding areas of privacy and inviting state regulation of our most intimate affairs.

This is dangerous for us all – not just men who may find themselves dragged into court following a sexual encounter they believed was consensual. Gittos holds that the drive to prosecute (and improve conviction rates against) more and more people has dangerous 71157100127170limplications for the fundamental principles of justice, and for basic freedoms. The situation as things stand, he maintains, does no one any favours: it undermines society’s ability to deal adequately with extreme assault, and it undermines our ability to live intimately with one another.

At a time when we are so often encouraged to understand rape from the perspective of the victim, it helps to understand the issue from the perspective of a lawyer who is able to compare the treatment of sexual assault to the treatment of other crimes. Take, for example, the discussion of the conviction rate for rape, which everyone seems to agree is ‘too low’ and in need of ‘improvement’. Gittos demonstrates that the conviction rate for rape is not so different to other crimes, and reminds us that a crucial principle of our judicial system is the ‘burden of proof’. He examines the absurdity of setting what are in effect performance targets for rape convictions. According to this bizarre logic, what matters is not whether a man is guilty or innocent, but whether a quota of rapists are convicted as an expression of society’s abhorrence of the crime.

Related: The Washington Post Joins the Rape Culture Crusade

Gittos examines the claims that rape is underreported, and that women do not report rapes because they are cynical, intimidated, ignorant of process or even unaware that they have been raped. Gittos makes a convincing case that the huge gap between the number of rapes and sexual assaults as reported in surveys and studies, and incidents reported to the police, is due to women preferring to deal with the matter informally, especially with regard to low-level sexual assault. Many women opt to treat these episodes as ‘a private/family matter and not police business’ (19 per cent in one 2012 study) or see them as ‘too trivial and not worth reporting’ (11 per cent). The conscious, deliberate choice not to involve the authorities is often seen as a problem, but Gittos challenges this. In effect, he is asking, do we respect women’s ability to decide these matters for themselves, or not?

People who insist that society is now peculiarly accepting of rape are simply deluded

The expansion of the definition of rape has been rapid and, therefore, deeply confusing. Nevertheless, it must be said that people who insist that society is now peculiarly accepting of rape are simply deluded.

Rape needs to mean something specific. ‘Unwanted sex’ or ‘unenjoyable sex’, is completely different to ‘non-consensual sex’. We need to understand the difference if we are going to have a sensible discussion about rape. You may agree to have sex that you don’t passionately desire for all kinds of reasons. As Bertrand Russell famously observed in his 1929 book Marriage and Morals, ‘the total amount of undesired sex endured by women is probably greater in marriage than in prostitution’. This was because, he explained, marriage for women at that time was the commonest form of livelihood. Unwanted sex was the price women paid for their economic and social position. Unwanted, unwilling sex is not rape – unless we broaden the definition of rape until it is so wide that it is absolutely meaningless. That is what Gittos thinks we are in danger of doing.

Of course, it is possible to draw the definition of rape too narrowly. The mothers of today’s students (who are encouraged to attend sexual-consent classes) may remember, as I do, protesting to make rape in marriage a crime. Not so long ago, the courts accepted that marriage gave conjugal rights to a spouse and that since a spouse could not withdraw consent, there could be no rape. In fact, it wasn’t until 1991 that the marital-rape exemption was finally abolished. So try telling the generation of women who campaigned to make rape in marriage a crime that today’s culture is uniquely ‘rapey’ because a song suggests that even ‘good girls’ really ‘want it’.

Related: Brown U. Messes Up Sex Assault Case, Accused Prevails

Clearly no one wants to return to the Bad Old Days, although many of us will have sympathy with the legal commission advising government on rape law in the 1980s when it said that ‘the criminal law should keep out of the marital relationships between cohabiting partners – especially the marriage bed’.

Gittos is right to insist that it is important to understand what rape is and how it is distinct from the intimacy of sex, which is, and must remain, a private matter. But what is it about rape that makes it a crime different to other forms of assault? After all, Susan Brownmiller, one of the most influential 1970s feminist thinkers on rape, denied that it was really about sex at – it was ‘a crime not of lust but of violence and power’.

My only problem with Gittos’ book is the title, Why Rape Culture is a Dangerous Myth. I do believe we live in what could be called a ‘rape culture’. We live in a culture where rape is a constant reference point for intimate relations, regardless of the extent of intentional, non-consensual sex. That’s because in today’s culture, ‘rape’ is so broadly defined as to encompass almost everything: songs about picking up women are vilified for encouraging rape; an actor can decide a years-old sexual episode she experienced was in fact ‘rape’; men are warned not to assume that a woman who says ‘yes’ is competent to consent – especially if, heaven forbid, she’s under the influence of alcohol… We are fast approaching a culture in which almost all heterosexual sex is seen as rape.

And that’s why Gittos’s intervention is so vital. He is intent on protecting the sphere of intimacy from those who see rape everywhere

This piece is reprinted with permission from Spiked.com. Ann Furedi is writing in a personal capacity.

Feds Lurch Toward Due Process in a Campus Sex Case

In a first for the Obama-era Office for Civil Rights, the Education Department’s OCR found in favor of an accused student who filed a Title IX complaint against Wesley College. At the least, after five years, we’ve finally found a case whose facts were so outrageous that even an OCR notoriously indifferent to due process couldn’t justify them.

The letter has received extensive coverage; the facts of the case are tawdry. At a fraternity in the Delaware school, two students had sex. Unbeknownst to the female student, the intercourse was streamed and witnessed (allegedly) by two other members of the fraternity. Two other students found out (from another fraternity member who had heard about the affair), went to the college, and an “investigation” ensued. Within seven days, all three of the accused students—the male fraternity member who had sex, and the two who allegedly watched—had been expelled.

The college violated multiple procedures in its handling of the case. It didn’t give the accused student a clear sense of the charges against him. It didn’t tell the student that the hearing (which would recommend his expulsion) actually was a hearing—the student thought it was a preliminary conference, so he had no witnesses to testify on his behalf. The college also gave the student an interim punishment—suspension—before the hearing, even though at that point of the “investigation,” the student had spoken to no one at the college about his side of the story.

Although the OCR letter doesn’t take a position on the matter, it suggests that the case  should never have been brought against the accused student at all. Wesley’s policy suggests that charges shouldn’t be brought against a student in a case without an accuser. In this instance, the accuser told Wesley administrators that though she hadn’t consented to the streaming of the intercourse, she didn’t believe the accused student had any role in the planning or execution of the event. Yet Wesley went forward with charges anyway.

The entire investigation and adjudication took a week. OCR investigators found that in 10 or the 12 most recent Title IX cases at Wesley, the matter had been resolved “in a matter of days.”

Though Wesley was the subject of the Title IX complaint, the real target could have been OCR itself. As FIRE’s Will Creeley has noted, “Given the many similarities between the procedural failures found by OCR here and those alleged by accused students in lawsuit after lawsuit over the past few years, chances are that Wesley College’s failings are far from unique.”

For instance, in its discussion of the threshold for imposing interim punishments, the resolution letter noted that “while a school must assess whether the presence of an accused student threatens the safety of individuals within the school community, a sufficient level of inquiry–that is not here evident–must be undertaken in determining the appropriateness of interim suspensions.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should consider the rights of accused students when imposing interim punishments. Will OCR now retreat from its enthusiastically championing of the interim punishment approach for all students accused of sexual assault?

Similarly, the resolution letter noted that “OCR has concerns, however, that the College’s expedited investigation of complaints of sexual harassment and sexual violence may have compromised the equity of such investigations.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should refrain from lightning-fast “investigations” and adjudications—indeed, OCR has been relentless in its pressure that colleges should speed things up. (Recall the Peter Yu case at Vassar as a particularly egregious example of how lightning inquiries frustrate pursuit of the truth.) Will OCR now abandon its pressure tactics on speed of inquiries, and encourage colleges to choose timeframes that allow students accused of sexual assault—who are, effectively, required to prove their innocence—enough time to prepare their case?

Finally, the letter is a striking testament to OCR’s hypocrisy. The only case specifically investigated involved treatment so unfair to the accused student that even OCR said the judgment had to be invalidated. Yet the general recommendations in the letter veered in the direction of changing procedures to increase the chances of guilty findings (more “training,” for instance, to remove a lack of “clarity” regarding the preponderance of evidence standard) or ensuring that more cases are adjudicated (fewer employees designated as eligible for confidential reporting). OCR expressly criticized the existing policy (which Wesley ignored in the case that prompted the complaint) of not having cases go forward without an accuser.

So, in short, while this case will need to be re-tried to allow the accused student to defend himself, the actual outcome of this letter is that more accused students at Wesley likely will be subjected to unfair procedures down the road.

Killer Clowns on Campus? A Sign of Moral Panic

Sociologists define a moral panic as a feeling of fear shared by a large number of people that some evil threatens the well-being of society.  The recent clown panic that has emerged from the belief that that murderous clowns have surfaced throughout the country to terrorize schools –including college campuses — says more about the state of our society and our own feelings of vulnerability, than it does about the preposterous possibility that covens of killer clowns are on a rampage to kidnap and kill.

“Inside Higher Ed” has reported that creepy-looking clowns are now stalking “dozens” of college campuses. Students have reported seeing clowns at the Universities of Connecticut, Iowa, Massachusetts, Miami, Missouri, New Hampshire and Texas at Austin. Students have also claimed to have seen clowns at Bloomsburg, Butler, Sacred Heart, Merrimack, Texas A & M and Syracuse as well as Western Carolina, Mississippi and York Colleges.

When police received concerns about clowns at Auburn, officials sent a campus-wide email telling students to resist the urge to track down the clowns on their own and avoid wearing clown attire. At Penn State — where the panic surrounding the sexual abuse of minors by Jerry Sandusky continues to haunt the campus — university police reported that between 500 to 1,000 students formed a mob that was “screaming and running through the streets” on campus in an attempt to “hunt the clown down.”

If the World Seems Precarious

Moral panics emerge when rapid social change threatens the status quo and society’s norms and values are changing so quickly that people cannot easily adjust to new societal demands. In the face of such precipitous social change, people begin to feel a sense of anomie—or normlessness as Durkheim called it — as the norms and values of the past no longer have meaning, and the world becomes a precarious place.

Anomie describes societies like our own that are characterized by disintegration and deregulation. It emerges when there is a generalized perception of a breakdown in social fabric—an erosion of moral standards, and a decline in leadership and legitimacy. Undifferentiated fears surface and vague feelings of unease develop resulting in confusion, distrust, and suspicions about the motivations and behaviors of others.

Throughout history, America has had its share of moral panics—and all of them can be understood as struggles for cultural power in the midst of rapid social change. The Salem witch trials in 1692 followed continued fears about a smallpox epidemic in the colony and coalesced around fears of attacks from neighboring Native American tribes.

There was also hostility related to emerging class differences and a rivalry with a more affluent neighboring community. Residents’ suspicions and fears of outsiders—fears of otherness—combined with a changing culture surrounding the role of women, fueling the belief that Satan was operating in Salem by endowing witches with demonic power to act against the Puritans.   It is noteworthy that the first woman accused of witchcraft in the Massachusetts colony was Tituba, the ultimate outsider, a Caribbean slave who was executed for “bewitching” young women into service for Satan.

Clowns in White Vans

The 1980s clown panic emerged at a time that is very similar to our current era of rapid social change and threats from external enemies.  While today we have fears of ISIS, domestic terrorism, school shootings, urban rioting, racial divisions, and an extremely contentious presidential election season, the 1980s was similarly filled with fears of AIDS, the cocaine panic over “crack babies,” the Iranian threats, and the frightening assassination attempts against President Reagan, St. Pope John Paul II, and Anwar Sadat.  And, although Reagan and the Pope survived the attempt, Sadat was killed, creating further fears of violent extremism from the Middle East.

Today’s clown panic on college campuses parallels yet another moral panic on campus surrounding fears of campus assault.  Women are told when they arrive on campus that they have a one in four chance of being sexually assaulted.  Undeterred by data debunking the notion that college campuses have become what Senator Kirsten Gillibrand (D-NY) has called havens for rape and sexual assault, the Obama administration is now investigating nearly 100 colleges and universities for possible alleged sexual violence.  Suggesting that “women are at a great risk of sexual assault as soon as they step onto a college campus,” Senator Gillibrand introduced the Campus Accountability and Safety Act, and all colleges and universities receiving federal aid have had to implement mandatory sexual abuse prevention training for all campus employees.

Related: Criminal Law and the Moral Panic on Campus Rape

The only problem is that much of what has been reported about the “epidemic of campus sexual assault” is itself a myth.  A study last year by the Bureau of Justice Statistics revealed that the rate of rape and other sexual assaults over the past two decades was 1.2 times higher for non-students of college age than for students on college campuses.  In fact, campus sexual assault has actually declined from 9.2 per 1,000 college students in 1997 to 4.4 per 1,000 in 2013.  Far from being a site of violence, the study found that female college students are safer from sexual assault while in college than at any other time in their lives.

But data mean little in the middle of a moral panic.  Driven by irrational fears, panics like these emerge quickly, garner much media attention, and then, disappear as quickly as they began.

Eventually, the creepy clown moral panic and the panicked response to the belief that college campuses are a site of rape and violence will pass as we begin to substitute new fears. In the meantime, it is helpful to look closely at them as an opportunity to begin to understand what we are really afraid of—the very real fears that we are likely too afraid to even discuss.

The heightened levels of fear that we are seeing on college campuses is best understood when viewed through the lens provided by NYU Social Psychology Professor Jonathan Haidt in an interview here.   Haidt believes that college campuses have been places fraught with fear for students.  Part of this is due to the dramatic changes in child-rearing that happened in America in the 1980s: “With the rise in crime amplified by the rise of cable TV, we saw much more protective fearful parenting.” Parental fears over the previous panics surrounding child abductions, crack houses, crack babies, gang violence, and day care abuse by mythic satanic day-care workers have changed the ways in which parents protect their children.

Haidt believes that “Children have been raised very differently —protected as fragile. The key psychological idea which should be mentioned in everything written about this is Nassim Taleb’s concept of antifragility.”  This theory states that “children are anti-fragile. Bone is anti-fragile. If you treat it gently, it will get brittle and break.  Bone needs to get banged around to toughen up.  And so do children.” Haidt believes we have treated our children as “too fragile” – not allowing them to ever suffer any discomfort in their lives.  When they reach college, they can be terrified of everything.

Toughening up our college age children will take a generation.  But, in the meantime, it is helpful to look closely at these kinds of panics as an opportunity to begin to understand what we are really afraid of—the very real fears that we are likely too afraid to even talk about.

Brown U. Messes Up Sex Assault Case, Accused Prevails

In campus sexual assault hearings, due process for accused students is rare, because of pressure from feminists and campus activists, administrators’ diffidence, and the Obama administration’s 2011 “Dear Colleague” letter that minimized protections for the accused.

Getting these cases into court for a due process trial is even rarer, but now the first such trial since the issuance of the “Dear Colleague” letter has ended with a victory for an accused Brown University student. Chief U.S. District Court Judge William Smith—as he had strongly hinted during oral arguments in mid-August—vacated Brown’s disciplinary judgment, arguing Brown had violated its own procedures, thus producing an unfair result.

Related: No Due Process, Thanks—This Is a Campus

The case involved student attempts to influence the judge, biased training of panelists in Brown’s sexual assault cases and the university’s extraordinary belief that flattery and flowers qualify as a manipulative part of sexual assault.

The case arose out of a fall 2014 incident where two members of the Brown debate team had oral sex after purportedly meeting (in a small room on campus) to watch a very late-night movie. In texts that flew back and forth between the two, the male student made clear his desire for no-strings-attached sex; the female was ambivalent, but signaled consent in some of her texts, while in others stating she wasn’t eager for sex. A few weeks later, the male student urged the female to put in a good word for him with a friend, with whom he wanted to have sex. These were not, to put it mildly, overly appealing characters.

Related: Don’t Bother with Due Process

In his 84-page ruling (which you can read here, and which both Robby Soave and Ashe Schow have also summarized), Smith identified three areas of misconduct by Brown (definition of consent, conduct of investigator, conduct of one of the panelists). Some of these issues were peculiar, related to the specific facts of this case, in which Brown had changed its policy between the time of the incident and the time the accuser decided to file her charges.

The decision has three areas of relevance, however, for matters beyond Brown. The first involves the “training” that the Office for Civil Rights (OCR) mandates all schools to provide to panelists in sexual assault cases. The equivalent in the criminal justice process would be if all jurors in rape trials (and only in rape trials) had to get training material—provided only by the prosecutors, designed to increase the chances of a guilty finding.

Anything Proves Sexual Assault

The inevitable result of this biased “training” manifested itself in the Brown case. After the incident, the accuser told a roommate what a great time she had with the student she’d eventually accuse; post-incident text messages sent by the accuser likewise indicated her having consented to sex. But one of the panelists, Besenia Rodriguez, said she didn’t consider the post-incident texts or conversations because her interpretation of Brown’s “training” suggested that sexual assault survivors behave in “counter-intuitive” ways. Therefore, she reasoned, “it was beyond my degree of expertise to assess [the accuser]’s post-encounter conduct . . . because of a possibility that it was a response to trauma.”

Rodriguez’s contention that her university-provided training shows that essentially any behavior—intuitive or counterintuitive—proves sexual assault “clearly comes close to the line” of arbitrary and capricious conduct, Smith noted. Yet the training Rodriguez received, and the mindset she reflects appears to be commonplace in campus sexual assault matters.

The case’s second key feature involves the pressure campaign—in the form of non-public e-mails—organized by a Brown student named Alex Volpicello. He even prepared a template—and dozens of students followed his lead and e-mailed Smith to urge him to uphold Brown’s handling of the case.

Volpicello’s ham-handed initiative predictably backfired with Smith. But the flurry of e-mails provided Smith with a glimpse of the witch-hunt atmosphere that exists on today’s campuses. He was deeply troubled, noting that “the Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome.

These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.”

Alas, the anti-due-process activists have shown no interest in education. Indeed, Volpicello issued a statement denouncing Smith’s ruling as indifferent to “the emotional trauma of the survivor” and insulting to “the intelligence and civic awareness of us as Brown students.” “Where is the justice?” wailed Volpicello. Where, indeed.

Third, despite the victory for the accused student, Smith’s ruling was very limited. He appeared deeply reluctant to involve himself in a campus disciplinary matter and explicitly said Brown could re-try the accused student—even as he spent page after page detailing Brown’s dubious conduct in this case. (And this comes after he spent page after page detailing Brown’s dubious conduct in another sexual assault case.) Nor did he pull any punches about the absurdity of Brown’s current policy, which defines sexual assault as including such behavior as a male student giving a female student flowers, or flattering her, in hopes of getting her to agree to sex. As Smith noted, Brown defines such manipulative behavior as sexual assault.

As FIRE’s Samantha Harris perceptively noted, “Smith’s opinion also makes quite clear that the court takes no legal issue with the substance of Brown’s new Title IX policy, which employs an affirmative consent standard and uses a single-investigator model to resolve claims . . . Courts are deeply reluctant to interfere in the inner workings of university judicial systems, particularly at private institutions . . . When we talk to the families of students facing serious misconduct charges at private universities, they often express shock at how easily the school can jeopardize a student’s future while giving him or her so few rights. This case, while a legal victory for the plaintiff, underscores this problem.”

In his opinion, Smith contended that he could strike down only a college disciplinary system that “tends to injustice.” If a system whose personnel regularly violate students’ rights, while defining the giving of flowers before sex as a sexual assault, and amidst a witch-hunt atmosphere doesn’t tend to injustice, what type of system possibly could?

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.

The Feds Now Run a Bureaucracy That Regulates Sex

Writing in the California Law Review, Harvard Law School professors Jeannie Suk and Jacob Gersen note, “Today we have an elaborate and growing federal bureaucratic structure that in effect regulates sex.” This is largely the result of pressure from the Education Department’s Office for Civil Rights, where I used to work. It has told colleges like the University of Montana and University of New Mexico to classify all “unwelcome” sexual conduct or speech as “sexual harassment.” It did so even though this violates free speech, and even though courts have never defined sexual harassment that broadly.

The Obama administration expects colleges to massively meddle in students’ romantic lives, even off campus. It has told colleges to investigate students for sexual harassment or assault even when their allegedly victimized partner does not want any investigation. It instructed the University of Virginia to investigate further 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.” It perversely 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 accuser academic “remedies.

By pressuring colleges to vastly increase their regulation of students’ sex lives, and demanding investigations students don’t want, the Obama Education Department has fueled vast expansions of college bureaucracies. There are now thousands of staffers responsible for enforcing Title IX sexual conduct mandates. As Suk & Gersen note, “the bureaucracy dedicated to that regulation of sex is growing,” and a recently-formed association of Title IX officials boasts 1,400 members.

Reason magazine’s Elizabeth Nolan Brown says, “The root of the confusion lies in federal government guidance. For instance, here’s a definition the White House offered universities in a model survey on campus sexual violence:

Sexual violence refers to a range of behaviors that are unwanted by the recipient and include remarks about physical appearance; persistent sexual advances that are undesired by the recipient; [or] unwanted touching…. These behaviors could be initiated by someone known or unknown to the recipient, including someone they are in a relationship with.”

If you expect colleges to police “remarks about physical appearance” made during a relationship with an ex-partner, and treat it as “violence,” you will end up with vastly more investigations (and need a vastly larger and costlier administrative apparatus).

Legislation may further fuel the growth of the sex bureaucracy. Congresswoman Nancy Pelosi (D-CA), the former (and possibly future) House Speaker, has advocated passing laws requiring college students across the country to show “affirmative consent” before engaging in sex or intimate touching, and requiring colleges to discipline those who don’t. This term “affirmative consent” is usually not well-defined (in terms of exactly what intimate activities it applies to, and what is needed to show the required “agreement”). So when the co-sponsor of California’s 2014 “affirmative consent” law was asked how an innocent person could prove “affirmative” consent, she said, “Your guess is as good as mine.”  Yet California state legislators expect colleges to enforce such rules for them (a number of colleges are now being sued by expelled students).

As Gersen and Suk note, very little actual consent qualifies as “affirmative consent” under the extremely narrow definition of “consent” contained in many campus “affirmative consent” policies. For example, many such policies require that the consent be “enthusiastic”: “Very rapidly,” point out Suk and Gersen, “the consent line shifted again in many places to make enthusiasm a requirement of consent itself—anything less than enthusiasm is sexual assault.” The claim is that consent is not meaningful unless it is “verbal,” “enthusiastic,” “sober,” “informed,” “honest,” etc.

Even if you liked being kissed, a college may deem it sexual assault if there was no explicit discussion beforehand between you and your partner to establish the existence of “affirmative consent,” as Ramesh Ponnuru has noted at Bloomberg News.

As supporters of “affirmative consent” legislation acknowledge, such laws require regulated entities to enforce “sweeping” changes on the government’s behalf. Ezra Klein, a leading supporter of California’s “affirmative consent” law, says it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, since

It 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.

There is also talk of enacting “affirmative consent” as a national requirement for not just students but all citizens. Historically, the federal government could not pass a nationwide law mandating “affirmative consent,” even assuming states could require it in their own borders. That’s because the Supreme Court’s 5-to-4 ruling in United States v. Morrison, 529 U.S. 598 (2000) had ruled that it is the function of states – not the federal government – to define and punish intrastate crimes like sexual assault. The Supreme Court’s Morrison ruling struck down Subtitle II-C of the Violence Against Women Act, which authorized federal lawsuits over sexual assault. The Court ruled that Congress lacked the power to do that under the Constitution’s commerce clause and section 5 of the Fourteenth Amendment.

But the crucial fifth vote, in that case, was provided by conservative Justice Antonin Scalia, who died in 2016.  He will likely be replaced by a progressive Justice who supports broad federal power over intrastate activities. That may encourage a more liberal Congress to pass national “affirmative consent” legislation covering everyone.

Students have often raised practical concerns about the workability of affirmative consent policies.  The New York Times quotes the developer of California’s “affirmative consent” curriculum, Ms. Zaloom, saying that to comply, you have to say “‘yes’ every 10 minutes” during a sexual encounter, resulting in constant awkward communication:

 “‘What does that mean — you have to say “yes” every 10 minutes?’ asked Aidan Ryan. . .

“‘Pretty much,’ Ms. Zaloom answered.”

The Times quoted 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.”

One supporter of “affirmative consent” legislation says it requires “state-mandated dirty talk” before intimate touching. Professors Suk and Gersen (and others) have argued that requiring students to do this sort of thing raises serious constitutional privacy issues under Supreme Court decisions like Lawrence v. Texas (2003), which struck down Texas’s sodomy law as a violation of privacy rights.

“Affirmative consent” laws have been opposed by civil liberties groups like the Foundation for Individual Rights in Education, and former ACLU Board member Wendy Kaminer. They also have been criticized by columnists like Bloomberg News’ Megan McArdle, Newsday’s Cathy Young, The New Republic’s Batya Ungar-Sargon, New York Magazine’s Jonathan Chait, and Amy Alkon, McArdle notes that such legislation “seems to criminalize most sexual encounters that most people have ever had, which (I hear) don’t usually involve multistep verbal contracts.” Affirmative-consent legislation has also been opposed by the editorial boards of newspapers such as the Los Angeles Times, Orange County Register, and New York Daily News.

Rare Court Ruling for an Accused Campus Male

Friday morning brought important news from the Second Circuit, which vacated a decision from Judge Jesse Furman in the Doe v. Columbia U. case, giving the accused student a rare new chance to prove his university denied him a fair proceeding. It was the first decision by an Appeals Court to deal with campus sexual assault since the Obama administration’s “Dear Colleague” letter raised strong pressure against accused students in campus sex hearings. (I had previously written about the Columbia case, and Judge Furman’s decision.) You can read the unanimous opinion here. The decision also will apply to pending lawsuits throughout the Second Circuit, including at Cornell, Colgate, and (perhaps most importantly) Yale.

A note on what wasn’t decided. This decision only overturned Judge Furman’s dismissal of the case; it only allows the claim to move forward. It does not resolve the merits of the case or (even) allow the accused student to survive a summary judgment motion. A spokesperson for Columbia said that the university doesn’t comment on pending litigation.

No Title IX Disparate Impact

The basic background: with only a handful of exceptions, accused students making Title IX claims have lost in motions to dismiss. While the Obama administration invoked Title IX even though only most (but not all) sexual assault victims are female, courts mostly have argued that argued that accused students can’t sue under Title IX, because only most—around 99 percent, according to one study—but not all accused students are males, and disparate impact lawsuits under Title IX aren’t allowed.

The Second Circuit articulated a more forgiving standard for how accused students can survive a motion to dismiss. It suggested that district courts evaluate these claims through the case law of Title VII (employment discrimination, which allows some disparate impact claims). The opinion also outlines the type of facts that could give rise to the possibility of gender discrimination:

The Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University, both in the student body and in the public media, accusing the University of not taking seriously complaints of female students alleging sexual assault by male students. It alleges further that the University’s administration was cognizant of, and sensitive to, these criticisms, to the point that the President called a University-wide open meeting with the Dean to discuss the issue. Against this factual background, it is entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.

Judge Furman’s decision had similarly acknowledged the existence of these protests—but had used them to opposite effect. He had contended that even if Columbia’s procedures were biased against accused students on grounds of gender, the university might have had a legally acceptable reason—avoiding the bad publicity that can come from having an insufficient number of guilty findings.

Repudiating Furman

In what Scott Greenfield termed an otherwise linguistically “tepid” opinion, the Second Circuit repudiated Furman’s rationale: “A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

The Impact of the Decision

Beyond allowing the Columbia student’s case to move forward, the decision has at least three immediate impacts:

  • The standard laid out by the Appeals Court for surviving a motion to dismiss on Title IX grounds—that the complaint suggests the university set up biased procedures in response to public pressure from the media, or from accusers’ rights groups—would seem to apply to virtually any elite school in the current environment. For instance, if the district court judge in Jack Montague’s case at Yale applies this decision faithfully, it’s virtually inconceivable that Yale will win a motion to dismiss.
  • There hasn’t been much consistency regarding political affiliation and decisions; there have been good and bad decisions written by judges of both parties. But it nonetheless was striking that this decision came from an all-Democratic panel—written by Clinton nominee Pierre Laval and joined by Obama nominee Christopher Droney and District Court judge John Koeltl, a Clinton nominee.
  • Although it technically was only one district court decision among many, Judge Furman’s decision was unusually influential, as FIRE’s Samantha Harris noted on Friday. That decision is now gone from the book

The case now returns to the courtroom of Judge Furman, who seems to have an unusual number of personal connections to the parties. His wife, Ariela Dubler, served as a professor at Columbia Law School from 2002 through 2014. (Dubler’s research specializes in “the legal regulation of sex and the family.”) And as he considers a new a complaint that strongly condemns the Obama administration’s policies, Furman’s brother, Jason, chairs Obama’s Council of Economic Advisors.

How the Feds Use Orwell to Apply Title IX

Among the many anti-campus due process groups that have appeared in the past five years, the most prominent is Know Your IX, co-founded by two self-described sexual assault victims, Dana Bolger and Alexandra Brodsky. The group has an active presence on social media; trains activists to crusade against due process at their home campuses; and has sought to influence Congress. Know Your IX members appear to have been among the group applauding Congressman Jared Polis’ call for the expulsion of innocent accused students at a 2015 congressional hearing.

Perhaps understanding that outright opposing due process makes for bad P.R., Know Your IX representatives occasionally have made vague references to fairness in the campus adjudication process. They’ve never quite spelled out what they mean by “fair,” however, other than to say that an accused student shouldn’t enjoy all of the due process rights a criminal defendant possesses.

A recent letter from Know Your IX co-director Dana Bolger to the House Judiciary Committee makes clear that by a “fair” process, the organization actually means “unfair.” The letter contained two remarkable provisions. The first attempted to justify the Obama administration’s decision to ignore the requirements of the Administrative Procedure Act and issue the 2011 Dear Colleague letter—which eviscerated due process rights for accused students.

In her letter, Bolger acknowledged that in the 1997 and 2001 “Dear Colleague” letters dealing with sexual harassment on campus, OCR proceeded with a notice-and-comment period. Know Your IX then cited the two letters as justification for the Obama administration not seeking comment. She provided no explanation for her illogical argument—that is, notice and comment was good enough for the Clinton and Bush OCR, but the Obama OCR doesn’t have to utilize the procedure. Instead, without explanation, she suggested that the terms of the 2011 letter (preponderance of evidence, right of appeal to accusers, discouragement of cross-examination) were merely a “clarification” of the 1997 and 2001 documents.

This Orwellian argument is a mere setup for the letter’s second major claim—that students accused of sexual assault are treated more fairly than students accused of all other offenses on campus. Here’s Bolger: “By mandating fairness and equity in campus sexual misconduct proceedings, Title IX affords accused students the right to prompt investigations, regular updates, notice of rights, and trained adjudicators. In so doing, Title IX provides students accused of sexual assault far more procedural protections than are enjoyed by students accused of other disciplinary infractions, like perpetrating simple assault or selling drugs out of a dorm room.”

In these remarks, Bolger seems to have dropped her earlier comparison of sexual assault to plagiarism. Instead, she’s embraced an insinuation by OCR head Catherine Lhamon that colleges are hotbeds of drug-dealing activities, which the schools resolve not by going to police but instead by handling the matter internally.

Below are some comparisons of the fairness accorded to a student accused of drug-dealing, and one accused of sexual assault.

Title IX chart

Legal requirement to investigate:

And yet according to Know Your IX, the student in Column 2 receives fairer treatment than the student in Column 1. Orwellian.

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.

Alleging Sexual Assault When an Affair Ends

Have you noticed how many of the campus accusations of rape/sexual misconduct are reported after the 3rd, 4th, or 5th sexual encounter? It’s possible, of course that rape-minded males on campus like to let a relationship proceed a while before forcing themselves on a woman. Or it could be that something happens in the midst of a sexual relationship (or a series of hook-ups) that sours the female on a sexual partner. For instance, she may see him with another woman, or she may run into a female from the campus gender lobby and learn that all men are pigs and all disappointing sex can be counted as rape. After all, the famous Catharine MacKinnon said as much:

“Politically, I call it rape whenever a woman has sex and feels violated.” (Feminism Unmodified, 1987). Of course, she may feel violated by his rudeness, promiscuity or failure to call the next day. Whatever. It’s all rape. Or so says a leading voice in the feminist canon.

This meditation is prompted by a victory of sorts by one of the railroaded males. “John Doe,” a  student at James Madison University, was cleared of sexual misconduct,  but convicted on appeal and expelled under a blizzard of Kafkaesque procedures (no notice of the meeting, no names of judges provided, no copy of the new charges—though he was allowed to read it and take notes). Elizabeth K. Wilson, an Obama-appointed federal judge, ruled that Doe’s suit alleging lack of due process can proceed. Accounts of the case are provided by Robby Soave of Reason (“The accusation is among the more dubious ones I‘ve ever read about.”) and Ashe Schow of the Washington Examiner.

On appeal, the accuser was supported by statements from her residential advisor and her Title IX representative. Both say that the first of five sexual encounters between accuser and accused was not consensual. (The accuser’s roommate said it was consensual). The pair exchanged friendly messages after the first encounter, and she took the initiative in other sexual meetings. After the third, however, she showed up at his dorm carrying her pillow, but left when she saw another woman sitting on his bed. Hmmm. Could this have been a MacKinnonian violation?

Montague and Yale’s Poisoned Campus Culture

Jack Montague, captain of Yale’s basketball team, has been expelled from the university on some sort of sex charge and the story continues to get uglier. Since his family has basically declined to comment (for understandable reasons) and because Yale chooses (for incomprehensible reasons) to employ “a more expansive definition of sexual assault” than state or local authorities, there’s no way to know even what he allegedly did wrong.

That said: there’s no reason to trust that Yale’s deeply unfair process got the decision right.

Since 2011, I’ve often written about sexual assault cases at Yale—which, thanks (ironically) to an agreement with the U.S. Education Department’s Office for Civil Rights (OCR), has been required to release biannual reports about its cases. Though opaque, these reports give a sense of the current witch-hunt atmosphere on campus. The most recent report, for instance, brings news of an investigation into a report of sexual assault from a third party—who claimed that an unidentified person had sexually assaulted another unidentified person.

Yale’s Imaginary Crime Wave

Beyond the question of campus culture, Yale’s procedures deny an accused student a meaningful attempt to prove his innocence. Given the combination of the preponderance-of-evidence threshold (those judging guilt need only be 50.01 percent sure they are right) and the guilt-presuming “training” that most panels receive—which, to date, Yale has not made public— students accused of sexual assault effectively have to prove their innocence.

At Yale, the critical procedural obstacles for an accused student include a denial of direct cross-examination of the accuser; the lack of any meaningful right to legal representation in the disciplinary process; and severe restrictions on the amount of evidence he can possess, due both to the OCR-mandated haste with which sexual assault campus cases must proceed and to Yale’s inability (like all schools) to subpoena evidence. Even with these restrictions, Yale doesn’t promise to share all the evidence from its “investigation”—even all the exculpatory evidence—with the accused student or his lawyer.

Montague, a two-year captain of the team, vanished from the squad, without explanation, in early February. In an interview at the time, he cited personal reasons; then, as we now know, Yale expelled him.

His accuser never went to the police—a critical decision in interpreting the subsequent campus and media reaction.

In a campus environment in which enormous social, media, and (at least indirectly) administration pressure exists to oppose fair treatment of accused students, Montague’s teammates then did an extraordinary thing. In the first game after Yale reached its decision (again: at this stage, there’s no way of knowing whether the decision was factually correct, but it’s clear it was procedurally unfair), the teammates all wore cover shirts with Montague’s number and nickname on the back, and “Yale” spelled backward on the front..

In the midst of the lacrosse case, the members of the Duke women’s team took the field with wristbands containing the numbers of the three falsely accused men’s lacrosse players. They attracted some angry comments from the usual suspects (New York Times sports columnists) but in general enjoyed strong support from the student body.

Fast forward ten years. The basketball team’s comparable action triggered blind rage on campus. Unknown parties—presumably Yale students who were briefed on the allegations against Montague, which at this point were not public—blanketed the campus with posters demanding that the team “stop supporting a rapist.”

Yet the fiction of the college disciplinary process is that it doesn’t make determinations of criminal offenses. A judgment by Yale can’t deem anyone a “rapist” any more than it can deem someone an “armed robber” or a “drug dealer”—two other crimes that powerful advocates of the campus status quo, Sen. Claire McCaskill and Catherine Lhamon of OCR, have bizarrely claimed that colleges currently investigate.

But, as the Montague case reveals, that fiction is just that—a fiction—with both students and the public at large interpreting any university action as a determination that the accused party has committed a serious felony. This reality makes it all the more important that Yale have a fair process.

Reflections on the Duke Lacrosse Case

The posters triggered a frenzied reaction on campus. The Yale Women’s Center—an entity with an official Yale website and a Yale faculty advisor—issued a statement that all but identified Montague as expelled for sexual assault. After the New Haven Register reported on the statement, the item disappeared from the Women’s Center website, replaced by a new statement that acknowledged Montague’s (utterly ignored) protections under FERPA. An article by Sue Svrluga in the Washington Post perceptively captured the witch-hunt atmosphere on campus.

The combination of sensational, now-public, but wholly non-specific allegations and the basketball team’s first trip to the NCAA tournament since 1962 has attracted national media attention. The quality of the coverage, however, has left something to be desired.

Kyle Ringo Yahoo! Sports, for instance, informed readers that “it remains unclear . . . if there are ongoing investigations by the school or law enforcement.” Really? The New Haven Register’s Chip Malafronte wrote: “There is no record of an arrest or court hearing involving Montague on file with the Connecticut judicial branch.”

CBS News, meanwhile, featured a nearly two-minute story on its national news broadcast. The piece concluded with a paraphrase of an e-mail to students from Yale Dean Jonathan Holloway, who said he was “committed to providing a safe campus for all of you.” Ending the report in this fashion was a damning frame, leaving the viewer with the impression that Montague was a threat to the safety of campus. Yet, once again, we currently have no idea what Montague even was alleged to have done.

Holloway’s email was notable, and troubling, for another reason. To date, the dean has not seen fit to publicly condemn either the students who distributed the “rapist” posters or the Women’s Center figures who posted the statement ignoring FERPA obligations. But the email did criticize the basketball players, asserting that their wearing Montague’s number in warmups left many “upset and angry.” Holloway’s document offered no explanation of why he chose to criticize only one group of students on the issue.

Holloway, ironically, is also Edmund S. Morgan Professor of African American Studies, History, and American Studies. Here’s a Morgan quote on which both Yale students and administrators could do well to reflect: “When any group of people become sufficiently intent on attacking a particular evil, they are likely to discard as obsolete and ineffective any ground rules that society has developed for the peaceful or fair achievement of social objectives.”

The Team’s “Official” Statement

Anyone who has followed the issue of due process and campus sexual assault knew that the subject would prove too tempting for the New York Times to resist. After badly botching its last foray into events at Yale (the Patrick Witt case), The Times avoided sending error-prone Richard PérezPeña back to New Haven; the lead byline on its coverage of Montague was Joe Drape, the only Times beat reporter who covered the lacrosse case fairly.

Drape’s piece was the best the Times has produced on any sexual assault case since 2011. But, critically, it offered a bland description of Yale’s disciplinary process that didn’t mention any of its due process-unfriendly components.

Drape’s article broke news, by including a statement from the team. It read, as presented by the Times, that the team “supports a healthy, safe and respectful campus climate where all students can flourish.”

“Our recent actions to show our support for one of our former teammates were not intended to suggest otherwise, but we understand that to many students they did. We apologize for the hurt we have caused, and we look forward to learning and growing from these recent incidents. As student representatives of Yale, we hope to use our positions on and off the court in a way that can make everyone proud.”

While I’ve taught at Harvard and Williams, I never taught at Yale. So maybe Yale students actually write in the exact same tone and style as student life and Title IX bureaucrats. But, somehow, I doubt it. Obtaining the background of this strange, almost hostage-like, statement would seem like the kind of news a good campus newspaper could break. In 2012, the Yale Daily News was up to the task, and played a key role in exposing the Times’ errors in the Patrick Witt case. But the paper’s current group of editors and reporters has shown little inclination to speak truth to power on questions of campus due process, and I don’t anticipate any exploration of whether there was inappropriate pressure on these Yale students to issue this statement.

Looking Ahead

At this stage, Montague’s reputation has been ruined. (Take a look at his twitter mentions for a clue of the effects.) Even if he sues Yale, a possibility that his father raised in a statement, his good name has been severely damaged.

Although important, protecting the rights of the accused is not the primary reason for due process in campus sexual assault allegations. Rather, due process provides the best guarantee that the university reaches the correct results—since the decision, as we have seen in the Montague case, is a life-altering one.

Based on Yale’s unfair procedures, the university’s one-sided response, and what seems like a deeply poisoned campus culture, no one should have any confidence that the university got this decision right.

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.

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.”

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

Office For Civil Rights Goes After Michigan State

However harmful the effects of the “Dear Colleague” letter to colleges and universities from the Education Department’s Office of Civil Rights, the document is a floor, not a ceiling, to OCR’s efforts to weaken campus due process. Resolution letters between OCR and various universities have allowed the agency to go well beyond the “Dear Colleague” letter’s terms. The Yale letter approved the “informal” process that allowed the university to brand a student a rapist without the accused having an opportunity to present evidence of his innocence. SMU and SUNY letters authorized the re-opening of cases where the accused student had been found not guilty, and oozed contempt for the idea that trained law enforcement personnel, instead of campus Title IX bureaucrats, should investigate sexual assault allegations. (Hans Bader has analyzed other resolution agreements, such as that with Tufts.) And the Montana letter envisioned a “blueprint” to weaken free speech on campus.

OCR’s most recent target, Michigan State, opens up a new inroad in the assault on campus due process.

Student A

A student identified only as “Student A” reported her alleged assault to the police, but not to the university, which instead learned about her allegations through media reports. The allegations weren’t very credible, as the police never filed charges. Nonetheless, when OCR discovered the charges, it told MSU that it needed to independently investigate the allegations. The university’s own investigation reached the same conclusion as the police—the accuser’s claims were not credible.

MSU nonetheless punished the accused students. As its investigation proceeded, the university forbade the accused students from contacting the accuser, and moved them out of their rooms to a different dorm, apparently well away from the accuser’s area of campus—which addressed the main concern the accuser said she had. The accused students apparently didn’t try to re-enter their old dorm, and the dorm to which they were reassigned was (according to the OCR letter) far away from their dining hall and their classes.

The accuser nonetheless cited the move in a Title IX complaint to OCR, apparently operating from the premise that students accused of sexual assault should be kicked out of all dorms, whether or not the accused students were guilty, and before any investigation had occurred. The accuser also claimed that the accused students violated a no-contact order—because, she reported, she had entered a university building and peered into a private tutoring room (through a glass panel in the door), where she spied the accused students meeting with a tutor. For reasons unexplained, she then stood outside the closed door for 30 minutes. There’s no evidence the male students saw the accuser until they left the room, but she interpreted their encountering her—after, to reiterate, she waited 30 minutes in a hall directly outside a room in which they were studying—as a violation of the no-contact order.

Even OCR conceded that this episode—which was, after all, directly initiated by the accuser—could not be held against the accused. That such an episode formed a key element of the accuser’s Title IX complaint demonstrates why reporters should be very skeptical when OCR reveals there’s a Title IX inquiry against a school, but refuses to release the actual complaint so outsiders can see the specifics.

Despite the record, OCR concluded that MSU had violated Title IX in its handling of Student A’s case, because the university took too long to conclude that Student A’s allegations were unfounded. This delay in initiating an investigation (based on a complaint the accuser never filed with the school) violated Title IX. OCR also expressed concerns about the structure of MSU’s policies, which at the time “required that a disciplinary hearing be conducted by the student judicial body before any action could be taken against a student accused of sexual harassment.” But the agency didn’t find a Title IX violation here, since by the time of the resolution letter, the disciplinary hearing requirement (which should, in fact, be an obvious form of due process) had been eviscerated.

To reiterate: Student A’s allegations proved unfounded, and she never filed a complaint through the university process.

The Campus Climate

As described in the resolution letter, Michigan State is a university whose leadership is obsessed with sexual assault. (According to Clery Act figures, there were 27 reported sexual assaults in 2013 at MSU, from an enrollment of about 35,000 students.) In 2013, the university initiated what it called a “No Excuse for Sexual Assault” campaign, designed in part, according to the OCR letter, “to debunk common myths regarding sexual assault.” MSU “distributed posters with images and messages intended to dispel various myths regarding sexual assault”; handed out shirts, stickers, buttons, and brochures with the slogan at various university events; developed a “No Excuse” Facebook page; created a special help line for students who wanted to report a sexual assault; and translated all of these materials into different languages—including Korean, Arabic, and Chinese. Students interviewed by OCR recalled these initiatives, along with material from the two required training sessions on sexual assault directed at all incoming students. (Athletes receive additional training.)

It appears that MSU’s training is creating some myths, rather than dispelling them. In a survey of all first-year and transfer students, 74.9 percent (incorrectly) said it was “false” that “someone can still give consent for sex if they are using alcohol or drugs.”

Yet to OCR, at Michigan State, a “sexually hostile environment existed for and affected numerous students,” while “the University’s failure to address complaints of sexual harassment, including sexual violence, in a prompt and equitable manner caused and may have contributed to a continuation of this sexually hostile environment.” The agency seemed troubled by findings (from campus surveys) that students would be more likely to report sexual assault to the police than to the university office that handles college investigations—as if, somehow, this is a bad thing. The resolution letter also went out of its way to include extraneous comments from random students: “OCR heard,” for instance, that a student had reported being raped at a fraternity shortly before the investigator came to campus. Well: Had she? Though this information presumably would have been very easy to ascertain, OCR investigators seemed uninterested in finding out. Another: “Many students referenced a walkway on campus near the river (the river trail) as being routinely referred to by students as the ‘rape trail.” This sounds ominous, until OCR informs us that this reputation dated from events in the 1970s or 1980s—that is, before 99.99 percent of MSU’s current undergrads were born.

Finally, OCR considered it a sign of a troubled campus culture that “only 7.4% of students were able to correctly identify the name of the University’s Title IX Coordinator,” while “71.5% of the students surveyed correctly identified the University’s head basketball coach.” That this churlish item made it into an official letter from a federal agency is astonishing. Given that miniscule percentages of students know the identities of even high-ranking academic bureaucrats, I wonder how many students know the name of the MSU provost, or the dean of the humanities (who are, after all, a far more appropriate comparison group for the Title IX coordinator). It’s remarkable, in fact, that according to the survey, around 2000 MSU students know the name of a mid-level bureaucrat at their university.

And what of the language that “71.5% of the students surveyed correctly identified the University’s head basketball coach”? Michigan State actually has two head basketball coaches: Tom Izzo, longtime coach of the men’s basketball team (including in 2000, when his team won the national title); and Suzy Merchant, who in her eighth year has emerged as one of the Big Ten’s best women’s basketball coaches. The 71.5 percent figure obviously refers to Izzo; by describing the university has having only one basketball coach, OCR—the agency devoted to gender nondiscrimination in athletics—chose to overlook the women’s basketball coach to make its political point.

Policy Abandoned

In early 2012, during the course of the investigation, MSU abandoned its previous policy (which required a hearing) that vexed OCR, and replaced it with a modified version of the single- investigator model. Student allegations of sexual assault are directed to the Office for Inclusion and Intercultural Initiatives (or “I3”). A I3 investigator speaks with the accuser, accused, and any other relevant witnesses, looks at any evidence the two sides present, and then produces a report deciding whether it’s more like than not that the accused is a rapist. The accused student has no opportunity to cross-examine his accuser—indeed, he doesn’t even see the evidence compiled against him until the investigator produces his report.

Once the I3 investigator produces his report, the accused student can appeal to a hearing—but under very circumscribed conditions. At the hearing, the OCR’s resolution letter noted, “neither side can ask questions of each other”’—and the accused student now has the burden of proof, a burden that goes well beyond the preponderance of evidence. He must “show that the I3 decision was arbitrary and capricious or had procedural problems.”

Such a one-sided procedure unsurprisingly has produced one-sided results. The OCR letter reported that MSU administrators indicated “that they have not yet had a case where the administrator or hearing board believed that the respondent met his or her burden of proof.”

In more than three years, then, MSU’s procedure has never resulted in an accused student being found not culpable once an investigator has decided otherwise.

OCR’s response? Michigan State procedures tilt too heavily—in favor of the accused. The agency found “that the University has not provided a prompt and equitable grievance procedure for the resolution of student and employee complaints alleging any actions prohibited by Title IX.” Investigations, OCR sniffed, take too long—at 90 days, with an additional 30 days to write.

OCR also faulted MSU’s policies for failing to unequivocally state that “the University will take steps to minimize the burden on the victim” regarding “interim measures while the investigation is pending.” But, of course, while “the investigation is pending,” there is no victim—the allegation is alleged, not established.

Unlike the SMU and SUNY letters, the Michigan State resolution letter doesn’t explicitly endorse any new, troubling policies. But it sends a most troubling message: even a university with MSU’s one-sided campus climate, and with MSU’s one-sided policies, will be found in violation of Title IX by the current OCR.

I Am Woman, Watch Me Wilt at Columbia

This article was published originally in Commentary

In February 2015, Columbia University—currently ranked the fourth most distinguished academic institution in the United States by U.S. News and World Report—announced that all its students, undergraduate and graduate alike, would be obliged to take part in a “Sexual Respect and Community Citizenship Initiative.” This “new, required programming,” the Columbia bureaucracy explained, was designed to explore “the relationship between sexual respect and community membership.”

Columbia’s students were given a menu of “participation options.” They could watch a minimum of two preselected videos about “rape culture” and gender identity and write a “reflection” about what they had learned. They could attend film screenings about sexual assault and masculinity and engage in a monitored discussion afterwards. They could create a “work of art” about the “relationship between sexual respect and University community membership.” Or, if they identified “as survivors, co-survivors, allies, or individuals who have experienced forms of secondary trauma,” they could attend workshops on “Finding Keys to Resiliency.”

Options in the “Finding Keys to Resiliency” module included a “mindfulness workshop” on “cultivating nonjudgmental awareness and being more present for their experience.” If attending the book launch for SLUT: A Play and Guidebook for Combating Sexism got one too agitated about female oppression, one could unwind at a “Yoga class for women” or a “knitting circle.”

To help students organize their required “reflections” on the videos, Columbia provided a set of questions suggestive of a New Age encounter session: “Kalin [a speaker in a video] shares his ‘why’ for passion around prevention education. What is his why? If you have a passion for prevention, ‘what is your why’?”

Another prompt suggested, “Reflect on the idea of manhood as discussed in this talk. What is the interaction of the constructs of manhood and power dynamics?”

The Columbia administrators were careful to avoid any possible misunderstanding that they themselves had failed to “cultivate nonjudgmental awareness” when it comes to college sex. One of the films on offer, The Line: A Personal Exploration about Sexual Assault & Consent, is “told through a ‘sex-positive’ lens,” according to Columbia’s promotional materials.

But Columbia’s “nonjudgmentalism” extends only so far. There was no give-and-take about participation in the Sexual Respect and Community Citizenship Initiative. The materials announced that it was “essential to arrive on time and participate” in the film screenings and discussions; late arrivals would not be admitted. Attendance at all events would be taken and passed on to the authorities. (This is a far stricter standard than Columbia applies to mere academic classes, where attendance policies are up to each instructor and usually lax.) Students who failed to log the requisite sexual-respect hours and complete the requisite sexual-respect assignments could be blocked from registering for academic coursework—or from graduating.

The rollout, which hit just as students were taking midterms, was a shambles. The computer portals for registering often didn’t work; many students couldn’t find participation options that were still open and that fit into their class schedule or that weren’t restricted to specific groups such as the “LGBTQ community.”

Despite the administration’s admonitions, some Columbia students decided that studying or researching their dissertation took priority over proctored discussions on “how gender affects relationships.” And so they neglected to do their sexual-respect assignments before the deadline ran out.

Columbia has now lowered the boom. In July, it started notifying the recalcitrant students that they were no longer in “good administrative standing.” Such a declaration is no small matter. Columbia treats a loss of administrative standing as seriously as an academic default; failure to repair one’s administrative standing can lead to dismissal.

By July, however, the options remaining to laggard students for demonstrating “sexual respect” had shrunk. No longer could a student view a webinar on “Transgender Sexuality and Trauma” or attend Momma’s Hip Hop Kitchen to satisfy the requirement. By now, in order to restore his administrative standing, the non-sexually-respectful student could only watch a recorded TED talk and write a “reflection” on his experience.

One of those recalcitrant students is a Ph.D. candidate doing serious archival research on a central figure in Western civilization. He reports that a number of his liberal graduate-student colleagues are also in trouble for not taking part in the initiative: “Even they felt the requirement was quite infantilizing and they had better things to do with their time, like actual academic work and teaching undergraduates.” That Columbia would elevate this “burdensome distraction” to the level of actual academic responsibilities, he notes, is “yet more proof that universities have lost their bearings entirely.”

But the initiative signals something more worrisome than just Columbia’s distorted priorities, according to this refusenik. “People like me might be losing the right simply to be silent, to be left alone,” he writes. “For the first time I, along with anyone else remotely willing to dissent, am not even being allowed to stay quiet and keep my opinions to myself. The initiative implies that agreement with the ideology—indeed, with a university-mandated code of sexual ethics—is actually required for attendance at this institution.”

In fact, the sexual-respect initiative never challenges the regime of drunken hook-up sex. To do such a thing, of course, would not be “sex-positive.” Rather, the initiative simply assigns wildly asymmetrical responsibilities and liabilities within that regime, consistent with the current practice of college administrations everywhere.

One of the initiative’s videos portrays two females drinking frenetically at a series of dance clubs; a male disengages one of them and escorts her to her dorm room where he has sex with her, allegedly non-consensually because she is too woozy from the boatloads of booze she consumed to offer proper consent. The moral of the video is that bystanders should intervene if they think that someone is too drunk to agree to sex with a stranger. Several additional interpretations come to mind. First, that university administrations should perform an “intervention” on the entire booze-fueled hook-up scene. Second, that females almost always have control over whether they end up in a mentally compromised state and should therefore be careful to avoid such a condition.

This second reading is unthinkable in today’s university, however, where the male is always responsible for regretted couplings, and the female a wilting victim. If this sounds like a resurrection of Victorian values, that’s because it is, but with one major difference: The modern college co-ed retains the prerogative of unbounded promiscuity (think: “sex-positive”), while also retaining the right to revert at will to a stance of offended innocence.

If Columbia felt compelled to take on the issue of “sexual respect,” it could have done so in a way that actually had intellectual value, had it remembered that its primary mission is to fill the empty noggins of the young with at least passing knowledge of mankind’s greatest works. Civilization has grappled for thousands of years with the challenge of ordering the relationship between the sexes and has come up with more sophisticated solutions than forcing males to watch videos on escaping the “man box.” Reading Baldassare Castiglione’s Book of the Courtier and Edmund Spenser’s The Faerie Queene would offer students an elegant take on sexual respect, albeit one grounded in the now taboo virtues of chivalry and chastity. If “relevance” is necessary, Mozart’s Don Giovanni might provide an example of “bystander intervention,” as when Don Giovanni’s aristocratic peers try to hustle the peasant girl Zerlina away from his clutches.

Mozart and his librettist Lorenzo da Ponte, however, were unblinkered about the male sex drive, something about which contemporary feminists can’t make up their minds. To recognize the specific hungers of the specifically male libido puts one dangerously close to acknowledging biological differences between the sexes. And it is precisely the force of the male sex drive that makes the norms of courtship and modesty so important for carving out a zone of freedom and civility for females.

Feminists, by contrast, are inclined to reduce the male libido to a political power play that has more to do with keeping females out of the boardroom than getting them into the bedroom. If gender “power dynamics” are really what lead men to aggressively seek sex, then a lecture from a TED “anti-sexism educator” might be relevant. But if, in fact, men pursue sex because they want to have sex, then a different set of strategies is called for. And one of those strategies might be to tell females in blunt terms: Don’t drink yourself blotto, take your clothes off, and get into bed with a guy you barely know. A sexual-assault counselor will never utter those empowering words, however, because preserving the principle of male fault is more important than protecting females from “rape.”

Naturally, the Columbia initiative embraces the conceit that college campuses are filled with shell-shocked female victims of rape culture who might collapse at any minute from the trauma of college experience. It is for them, explains Columbia, that the “Finding Keys to Resiliency” module was designed. The “Finding Keys to Resiliency” option allows “individuals who identify as survivors” and their “allies” to “incorporate wellness and healing into their day-to-day lives…from trauma-focused therapy to healing circles, from dance and movement to yoga and mind/body work.” If, however, you are a religiously conservative student who believes that premarital intercourse is  immoral (a few such closeted throwbacks still exist), you are out of luck. There is no module for you.

Predictably, the sexual-respect initiative created more trauma for Columbia’s wilting co-eds, but not always in the expected ways. One “survivor” was forced to wait 45 minutes outside her “survivors-only” workshop, only to be told that the workshop had been cancelled. “Sitting there waiting with no word caused me to panic,” she told the Columbia Spectator. The university had failed to provide her with a Victorian fainting couch.

The sexual-respect initiative undoubtedly triggered, to borrow a phrase, by Columbia’s most famous self-identified survivor: the recently graduated Emma Sulkowicz, otherwise known as the “mattress girl.” Sulkowicz belatedly claimed that she had been raped by a fellow student with whom she had been having intermittent casual sex. When Columbia, after a lengthy investigation, failed to find her alleged rapist guilty and expel him, she started carrying around a dormitory mattress in protest. This yearlong stunt, for which Columbia granted her academic credit, earned Sulkowicz rapturous accolades from the campus-rape industry and inspired scores of student imitators at other campuses.

If anyone needs the qualification of being a “self-identified” survivor, it’s Sulkowicz. After her alleged rape, Sulkowicz sent fawning emails to her alleged rapist, begging to get together again. Two days after the incident, Sulkowicz texted him: “Also I feel like we need to have some real time where we can talk about life and thingz because we still haven’t really had a paul-emma chill sesh since summmmerrrr.” A week later she suggested that they hang out together: “I want to see yoyououoyou.” Two months later, she texted: “I love you Paul. Where are you?!?!?!?!”

It took Sulkowicz six months to decide that she had been raped. Columbia was indubitably right not to find her sexual partner guilty, but it lost the public relations battle anyway over its alleged mistreatment of rape “survivors.” Thus, Columbia’s burgeoning campus-rape boondoggles, including the “Sexual Violence Response” unit and the new “Special Adviser to the President for Sexual Assault Prevention and Response.” This special adviser, a self-described decades long “social-justice advocate,” was soon elevated to executive vice president, heading a new Office of Community Life. From there, she designed the sexual-respect initiative.

I asked the Columbia administration how many students had lost their good standing as a result of not participating in the sexual-respect initiative. The chief of staff for the Office of University Life would only respond, “Because it was a University requirement, there was a high compliance rate with the program.” That may sadly be true. Columbia, after all, has power on its side. Even the most obstreperous comments about the mandate on the Columbia Spectator student-newspaper website were calling for civil disobedience within the confines of the initiative: “Make sure to record every word spoken. If just one feminist gets out of line: walk out, claim you were traumatized by a trigger and file a grievance….Demand to take your class with men, because women trigger your false rape accusation.”

The American university’s plunge into triviality may have become irreversible. To the narcissism of identity politics and victimology can now be added the quackery of “healing circles” and “mind/body work.” Columbia proudly claims that it has developed one of the first university-wide programs on sexual respect in the nation. Expect desperate one-upmanship to follow as our national descent into a new academic Dark Age accelerates.

Amherst: No Pretense of Fairness

Amherst is being sued –and rightly so–in one of the most egregious of the many campus sex cases. In brief, this is what happened.

  • After heavy drinking, two Amherst students had sex.
  • The male involved was the boyfriend of the female’s roommate. Her friends made nasty comments about her or abandoned her for cheating on her roommate.
  • Months later, joining a group of victim’s rights advocates, the accusing student (AS) concluded that the drunken sexual encounter had been rape and brought charges.
  • In a  lightning-fast investigation,  Amherst  did not discover that AS had sent two  crucial text messages to fellow students: one admitting she had seduced the male in question, regretted it and worried that the male had been  too drunk to lie about it; the other inviting a second male to her room for sex immediately after the alleged rape.
  • In a kangaroo court hearing (no lawyer, no discovery no direct cross-examination), the male was found culpable and expelled.
  • Having learned about the exculpatory emails, Amherst refused to re-open the case, and blamed the accused male.

In a defiant response to a lawsuit filed by the accused student, Amherst claimed that the process worked as it should have in this case. Or if it didn’t, it was the accuser’s roommate’s fault—he should have found out about the text messages and forwarded them before the investigator’s investigation ended. Or if it wasn’t the accuser’s fault, it was the accused student’s own fault for (in a hearing with no lawyer) not developing clever supplemental cross-examination questions about the text messages. But Amherst, according to Amherst, did everything right, according to both college policy and federal law, producing a hearing “conducted with fundamental fairness, in good faith.”

Amherst: The Process Worked

Amherst’s response comes in three levels. First, it suggests that the college did everything right: the investigation worked as it should, even though the investigator did almost all of her campus interviews in just one day; and the panel made the correct judgment, even as the college denied the accused student any right to meaningful cross-examination or legal representation. After all, AS claimed (more than a year after the fact) that at some point she had withdrawn consent, and the accused student was too drunk to recall the incident.

It’s possible, as Reason’s Robby Soave has noted, that despite this damning contextual evidence, AS’s months-after-the-fact story about nonconsensual sex is correct. But in a case that relied solely on AS’s credibility, in which AS denied to Amherst’s investigator that she had relevant text messages, such material effectively destroys her claim—as Soave also, correctly, observed.

Desperately Defending the Accuser

In its filing, Amherst tries to rehabilitate AS in two ways. First, the college suggests that—even if they had been produced by the school—the text messages would have had “no bearing” on the case, since they were simply discussions about irrelevant aspects of AS’s sex life. But the intercourse is almost certainly relevant (since AS misrepresented to the panel and the investigator why the male student came to her room), and the messages contain several items discussing her intercourse with the accused, not with the second male.

Second, Amherst portrays AS as courageously forthcoming, and therefore wholly credible. It denies that she changed any significant aspect of her story—though even the school’s own investigator couldn’t “say it was clear to me” when AS actually claimed that she withdrew consent. It’s also true, the college’s outside attorneys concede, that AS told the school’s investigator that she didn’t have relevant text messages about the incident. But that answer was truthful, according to Amherst, because AS could have understood that the investigator was only asking her “whether she had communicated or recorded in writing that the Incident had been ‘non-consensual,’ which she did not.”

In other words, Amherst has implied that its investigator was only interested in obtaining from AS contemporaneous documentation that would confirm, rather than undermine, AS’s story. And this is how the college’s system was supposed to work? On this point, Amherst had two unpalatable options: (1) concede that AS lied to the investigator, and therefore is of dubious credibility, or (2) hint that its investigator wasn’t interested in obtaining exculpatory information. I suppose, given those two options, and given the ideological climate at the college, the lawyers had little choice but to implicitly rebuke the investigator.

Amherst’s Fallback Position: Blame Its Students

In a federal judiciary that includes such opponents of campus due process as Ronnie Abrams (Vassar case) and Jesse Furman (Columbia case), perhaps this argument might carry the day. But even Amherst seems doubtful. And so the school offers a second line of defense–to the extent the result was unjust and the school failed to consider exculpatory evidence, it was because Amherst students (either AS’s roommate, or the accused student himself) failed to do their jobs.

On this point, Amherst begins with AS’s roommate, the former girlfriend of the accused. (The roommate seems to me to have been badly treated by all parties in this case—including, now, Amherst.) While the college goes out of its way to defend the unreliable AS, its outside counsel choose to cast aspersions on the roommate—one of Amherst’s own students—by suggesting that she wasn’t entirely forthcoming about the existence of the text messages in her one and only interview with the investigator. Why? Because the roommate answered, “I don’t think so” to the following question from the investigator: “Is there anything else I haven’t asked you about that you think would be important for me to know?”

In other words: the roommate—a college student, not represented by counsel—was supposed to: (1) assume that AS hadn’t turned over clearly relevant messages (and understand why they were relevant); (2) recognize that the text messages (for which she was neither a sender nor a recipient) represented “anything else” in the investigator’s question; and (3) not wonder why this supposedly experienced investigator wouldn’t simply ask about text messages. Moreover, if the investigator had taken a more professional route—that is, scheduling follow-up meetings with relevant witnesses rather than interviewing all the witnesses in the case in a one-day whirlwind through campus—she might have realized the importance of the text messages and asked about them in a follow-up interview with the roommate.

Nonetheless, AS made a mistake. As even Amherst admits that AS “did not provide text messages to Attorney Kurker [the investigator],” she referenced them indirectly in the hearing: “I texted a friend to come over to talk to me and spend the night.” Amherst’s attorneys now argue that this sentence of testimony, buried within a longer discussion of what AS did after the alleged attack, shows the accused student had all the chances he needed. Although he “had the opportunity to do so,” Amherst’s outside counsel maintains, “he never asked [AS] to identify ‘the friend’ whom [AS] texted.”

In other words: the accused student—representing himself in a proceeding whose outcome would alter the rest of his life—was supposed to: (1) have had a clear enough understanding of the case to have recognized that AS made a key admission in her testimony; (2) have composed (in writing) a follow-up set of questions on the text messages as AS’s testimony was occurring; and (3) have submitted these questions to the panel chair and hope that the chair (who wasn’t required to do so) asked them of AS. And since the accused student failed at playing Perry Mason, Amherst now contends he’s out of luck.

Amherst and Its Officials

While the accused student couldn’t have a lawyer with him, he did have an Amherst-approved “advocate,” Torin Moore, who had come to Amherst after obtaining a graduate degree in social justice education from UMass. What was Moore doing as AS made her potentially damning admission? Amherst doesn’t even bother to defend his performance during the hearing. And what about the panelists? The college obliquely concedes their failures: AS “was not asked that question [about the text messages] by anyone else.” Why were they disinterested in this relevant information? Amherst doesn’t say.

Finally, a striking element of the original complaint was a realistic portrayal of the deeply unhealthy campus climate at Amherst on issues of due process—a task that the accused student’s attorneys, Max Stern and Hillary Lehmann, accomplished by liberally quoting from Amherst officials’ statements and documents. The Amherst filing ineffectively tries to rebut this portrayal by accusing Stern and Lehmann of producing a complaint that “mischaracterizes and selectively quotes out of context” Amherst materials. Yet in 39 pages, the college can’t identify a single specific mischaracterization.

Brandeis Betrays Students’ Rights

Earlier this spring, a student filed a due process lawsuit against Brandeis, charging that he was disciplined under a procedure different from the one that existed when he arrived on campus. In one respect, the facts of this case are atypical. After a nearly two-year relationship (between two male students) ended, the accuser appears to have reinterpreted the relationship as sexual assault. In another respect, though, this case is quite typical—a highly dubious procedure produced a questionable result.

Brandeis recently filed a motion urging the district court to dismiss the claim. (You can read the college’s filing here.) A key claim by the accused (who filed under a pseudonym) was breach of contract—that Brandeis was obligated to follow the disciplinary procedure that existed when he matriculated to the school. Instead, the college transformed a procedure that originally included a hearing and judgment based on “clear-and-convincing” evidence into the administration’s preferred “preponderance-of-evidence” standard. That standard called for a “single investigator” in which the accused student loses any right to cross-examine his accuser (or other witnesses), or even to hear what accusing witnesses have to say.

Brandeis doesn’t deny what it did, but astonishingly describes substituting one wholly different procedure for another as merely a “tweak” to its rules — part of the college’s “evolving” disciplinary standards and therefore not a breach of contract. How so? Brandeis didn’t wholly substitute one set of procedures for another in all student disciplinary cases, the college maintains, but did so “for only a narrow subset of student misconduct.” Here’s how Merriam-Webster defines tweak: “to make usually small adjustments in or to fine-tune.” It seems to me wholly replacing a procedure is a bit more than a small adjustment, or fine-tuning.

Even if the procedural change was more than a tweak, Brandeis claims it had good reason for acting as it did. Why? The “Dear Colleague” letter “explains that cross-examination and confrontation of the accuser would actually violate Title IX.” But in fact that letter offers no such explanation. In 2011, the Office of Civil Rights did assert—as part of its more general attack on due process rights of the accused—that despite nearly four decades of policy where this issue went unmentioned, it heretofore would “strongly discourage” cross-examination, even in instances where the accuser was the sole witness against the accused.

But strong discouragement is not the same as an actual violation. At most, the Dear Colleague letter maintains that cross-examination “possibly” [emphasis added]—not “actually,” as Brandeis claims—might create a hostile learning environment, allowing an appeal to Title IX. If Brandeis can’t even accurately describe its obligations under the Dear Colleague letter, why should the court trust its description of the contested facts in the case?

Beyond the procedure, Brandeis aggressively maintains that the single investigator’s conclusions—based on unsworn testimony that she did not record, notes of which she did not provide to the accused student—were just. In so doing, the college essentially concedes that its standards for determining what is or is not sexual assault are almost wholly arbitrary.

Brandeis asserts that “the common thread running through all of [the accused] claims is sexual, because [the accused] and [the accuser] had a dating relationship, consent to any and all sexual activity must be assumed.” But this isn’t what the lawsuit maintains. Rather, the lawsuit suggests that the existence of a long-term relationship must be a factor in evaluating the viability of the accuser’s after-the-fact, post-bad-breakup claims.

For instance: one infraction determined by the investigator (a former OCR staffer) was an alleged unwanted advance by the accused (at that point a closeted gay man) toward the accuser (at that point openly gay)—just before the two commenced their long-term relationship. Both sides agree the advance occurred. If the two didn’t have a 21-month relationship that began just after the alleged unwanted advance, perhaps the accuser’s tale might have some credibility. But surely the context matters here; and if the advance was unwanted, why did the accuser, who was open about his sexuality, decide nonetheless to initiate and maintain a long-term relationship with his alleged assaulter?

Similarly, Brandeis defends its investigator’s “balanced” conclusion that the accused student committed sexual misconduct by: (a) sometimes waking up his sleeping boyfriend with kisses; (b) sometimes staring at his long-term boyfriend’s nude body in the communal showers; and (c) sometimes getting “sulky” when the two didn’t have sex. Even if true, by those standards one or both partners of virtually any long-term couple at Brandeis (or anyplace else) could be deemed a rapist by the college. By describing behavior customary to many long-term relationships as sexual assault, Brandeis trivializes actual sexual assault.

One final point: somewhat oddly, Brandeis cites to the DePauw decision to justify its motion to dismiss. It seems to me that Judge Lawrence, in the DePauw case, did exactly what Brandeis wants court not to do here: he meaningfully examined the college’s procedures and evidence, took testimony in open court, and concluded that very little basis existed for the college’s decision to brand Ben King a rapist.

Will we see a similarly engaged court in Massachusetts?

The Washington Post Joins the Rape Culture Crusade

Stuart Taylor and I have a jointly authored piece debunking the Washington Post series on campus sexual assault. The collection of articles, accompanied by a misleading poll, has also received searing, effective criticism from Ashe Schow in the Washington Examiner, Robby Soave in Reason, and David French in NRO. I recommend each piece.

The series included the work of four reporters, plus a lengthy, mostly cell-phone poll—so the Post clearly devoted an extraordinary amount of resources to this project. The framing of the articles makes clear that the Post has an intense ideological commitment to the administration’s “rape culture” narrative. Beyond the specific critiques mentioned above, four general comments about the Post’s effort.

Related: WAPO’s Faulty Rape Poll Muddies the Issue

(1) Mix and match. The Post’s apparent goal was to overwhelm readers with story after story of college students victimized by sexual assault. The series included a page in which 49 “sexual assault survivors tell their stories.” The page was framed with an explanation that “the Post’s policy is not to identify victims of alleged sex crimes.” The “alleged” here is rather odd, since if the crimes were only “alleged,” how did the Post reporters determine their subjects were “sexual assault survivors”?

Not an Attacker, Not a Student

Many of the Post’s stories—if even close to true—were sexual assaults. (That said: the Post almost never spoke to the alleged attacker.) But to get its large number, the Post included alleged assaults that occurred off-campus by non-student perpetrators. It led with a story that doesn’t appear to have been a sexual assault at all, and in which the alleged attacker wasn’t a student at the same college as the alleged victim.

Then there are stories like one from a former student at the University of Nebraska, Omaha. She lived with a man (who she had started dating in high school) for several years. “He would continue to berate me until I gave in,” she recalled. “It was never taught to me, that that was an option, to really say no and mean it.” Post reporters paraphrase her perspective in the following way: “She said she and her boyfriend grew up believing that in a relationship, it is the woman’s job to meet the needs of the man. She believed that if she withheld sex, it would physically harm her boyfriend.”

Related: Amherst’s Version of Kafka’s ‘The Trial’

The Post doesn’t say what percentage of female college students live in off-campus houses with long-term boyfriends, but I would imagine the number is very small. Yet casual readers of the Post series who simply looked at the paper’s display and didn’t individually click each of the 49 stories doubtless would not have expected the UNO former student’s story, and it’s hard to see what possible public policy ramifications of this story could have.

(2) Indifference to prevention. As Robby Soave observed, the Post-Kaiser poll indicated that students considered excessive alcohol use a more serious problem on campus than sexual assault. The vast majority of cases that have attracted public attention since 2011 have involved one or both parties drinking lots of alcohol. Soave has suggested that the best way to deal with this problem is to lower the drinking age to eighteen. (I agree.) Another approach would be for schools to take a BYU-style approach and simply make use of alcohol a disciplinary offense.

No Interest in Rape Prevention

Either way, however, the goal here would be to prevent assault, something to which most activists on this issue appear indifferent. Rather, the goal is to (a) dramatically expand the definition of what constitutes sexual assault, but just for college students; and (b) make it all but impossible for an accused student to defend himself in campus tribunals.

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

Ironically, the Post series coincided with publication of a study in the New England Journal of Medicine, which showed how training female undergraduates to resist assault had been “successful in decreasing the occurrence of rape, attempted rape, and other forms of victimization among first-year university women.”

This sounds like excellent news—but instead it has been met with outcry by victims’ rights advocates. Here’s Dana Bolger, an Amherst graduate who was a colleague of Amherst accuser AS in the campus victims’ rights movement, dismissing the significance of the study: “As a friend of mine once said, ‘If you’re pushing a woman to change her behavior to ‘prevent’ rape, rather than telling a perpetrator to change his, you’re really saying, ‘Make sure he rapes the other girl.’ There will always be another girl at the bar.”

Prevention, it seems, is not a legitimate goal.

The Most Troubling Finding

(3) Burying the lede. The quartet of Post reporters hyped the dubious 20 percent claim, without providing any context (that is: if 20 percent of college students are sexually assaulted, then colleges have a much higher violent crime rate than the most dangerous cities in the country, something virtually no one actually believes). But the reporters basically ignored the most troubling finding from the poll: whether students found it more unfair that a guilty student got away or an innocent student was falsely punished. By a 49-42 margin, today’s college students—tomorrow’s legislators—found it more unfair that the guilty went free. (This could be called the reverse-Blackstone effect.) Among college women, the margin was 56-36.

The question, actually, was a good one, since there is, at least in a crude way, a connection between enhancing procedural protections for the accused and running the risk that more guilty will go free. In an important editorial from the legal publication XX, which called for the administration to withdraw the “Dear Colleague” letter, the editors noted, “We can all agree that people who commit crimes should be brought to justice. At the same time, most of us share a profound commitment to affording those accused of a crime with certain rights—to know the accusation, to confront the accuser, to cross-examine witnesses and to due process. We know that each of these rights means that an accusation is less likely to result in a conviction. Yet no serious person proposes doing away with those basic rights, solely for the sake of increasing the conviction rate. If a mere accusation is sufficient to mete out punishment, we know how this story ends.”

No serious person might want to do away with these rights, but lots of people on campus do. To the extent that even students believe the principal problem is a need to punish the guilty, expect little interest among undergraduates in protecting due process. And this concern, again, comes amidst a process that already is deeply unfair to accused students.