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.
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 implications 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.
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’.
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.
Ann Furedi has worked in pro-choice organizations in the UK for more than 20 years, mainly in policy and communications.
In 2014 Senator Marco Rubio lent his support to CASA, the Campus Accountability and Safety Act—the effort by Missouri Senator Claire McCaskill and New York Senator Kirsten Gillibrand to strip the due process rights of students accused of sexual assault. The bill died that year but McCaskill and Gillibrand brought it back in 2015, and Senator Rubio renewed his support.
It is a terrible piece of legislation, and one that no reasonably informed observer of higher education who cares about the rule of law and individual rights on campus could support. Yet one of the mainstream GOP presidential candidates co-sponsored it, presumably because he calculates that it is “good politics” to be able to say he opposes “rape culture.”
This one instance of many testifies to how little attention our leading candidates pay to higher education. Americans, however, have been shocked to see students at Dartmouth, Princeton, Yale, and other elite institutions protesting against free speech—and college presidents bowing down before little ripped-jeans, tuition-subsidized junior-league totalitarians. Now would be a good time for some presidential candidates to come up with a real program for reform.
So far, the only candidates to propose anything noteworthy are Bernie Sanders and Hillary Clinton. Sanders has floated a $47 billion proposal to eliminate undergraduate tuition at four-year public colleges and universities. Clinton has countered with a “New College Compact” that would spend $350 billion over ten years to eliminate student loans.
Making college an entitlement may appeal to some voters, but it would do nothing to end the open hostility to free inquiry that marks our campuses now. Here are some suggestions for how to take back the campus from those who are intent on making it a 24-7 taxpayer-subsidized indoctrination camp:
Respect freedom of thought and expression. Colleges and universities should demonstrate commitment to these freedoms. They should, for example, establish independent standing committees on free expression. College leaders need to stand up against movements that try to turn academic freedom inside out by justifying mob action and intimidation as “free expression.” If they prefer instead to shelter students in “safe spaces,” they forfeit any claim to public respect—and public support.
Treat men and women equitably. Amend Title IX of the Higher Education Act, which was originally enacted to ensure that women in college had equal opportunities. It has been twisted over time by bad court decisions and radical feminist regulators to justify denying men due process, cutting men’s sports, and reducing men to a minority group on most campuses.
Curtail the Office for Civil Rights in the Department of Education which has, without Congressional approval, churned out regulations on the unwarranted premise that sexual assault is a form of “discrimination” covered by Title IX. Sexual assault is a crime, best handled by the police and the courts, as Bernie Sanders has just said. Endorse the Safe Campus Act, which allows a college to conduct its own inquiry into a reported sexual assault only if the alleged victim consents to an investigation by law enforcement.
End higher education’s destructive focus on race. Presidential candidates should join the majority of Americans who oppose racial preferences in hiring and college admissions. This may be a long fight. A good first step would be to expose the sheer extent of these preferences by passing legislation that requires colleges and universities to disclose them in detail by publishing admitted students’ standardized test scores and GPAs, broken down by race.
Fix the student loan debacle. First, end the perverse incentives by which the government actively encourages students to take on unnecessary debt. Prompt students to think carefully about their college choices by favoring loans that go towards programs that meet national needs and that possess academic rigor. Cap each student’s total borrowing for tuition and other college expenses. Make colleges partly liable for student loan defaults. Create federal incentives for three-year programs and the $10,000 B.A. pioneered by Texas.
End federal cronyism in higher education. Bust the accrediting cartel, which impedes competition by hindering the creation of new colleges and online education. End the cozy relationship between the government and the College Board, a private monopoly that has compromised academic standards via its politically correct changes in the SATs and the Advanced Placement history courses.
Restore the integrity of the sciences. Require the National Science Foundation and other federal funding bodies to spend research dollars on research, not public advocacy. End sycophantic science—the bribing of scientists to produce “findings” meant primarily to advance political causes. Pass the Secret Science Reform Act which would require universities to disclose the data and the manipulations behind publicly-funded research. (The data behind Michael Mann’s infamous “hockey stick” graph, first published in April 1998, is still) Science that can’t be replicated isn’t science.
Enhance the curriculum. Colleges should be free to decide what courses they offer and how these add up to a college degree, but our political leaders can reasonably exhort college leaders to set meaningful requirements and to offer students a coherent curriculum that includes core subjects such as Western civilization and American history.
These steps would serve everyone, rich and poor, of every ethnicity, and would just as importantly serve America. We’ve allowed many of our colleges and universities to decline into little more than servants of progressive politics. But higher education should never be political indoctrination, welfare for special interests, or back scratching for politicians. It is time for a principled candidate to say “Enough!” and to take concrete steps to restore higher education to the nation’s colleges and universities.
Peter Wood is President of the National Association of Scholars.
Peter Wood is president of the National Association of Scholars and author of “Diversity: the Invention of a Concept.”
A few highlights from the online site of Cornell University’s conservative student newspaper, the Cornell Review:
At her inauguration as Cornell’s new president, Elizabeth Garrett said, “We must heed the call to be radical and progressive.” Later she issued apparently contradictory statements on free speech, calling herself “an avid supporter of freedom of speech” at a press event in New York.Later, she said, “Speech can be regulated. Speech has to be regulated in the narrowest possible way to serve a compelling state interest.”
At a rally against “rape culture,” student Bailey Dineen said that the institutions promoting “rape culture”–Cornell, the Justice System, and the “white supremacist, imperialist, capitalist, cisheteropatriarchy”–must be destroyed.” The rally was sponsored by several groups,including Direct Action to Stop Heterosexism (DASH) and the Kinky Club of Cornell.
Though 96 percent of Cornell facultypolitical donations from 2011 to 2014 went to Democrats, government professor Andrew Little was quoted as saying that hiring a few Republicans would compromise the quality of Cornell’s faculty. “Placing more emphasis on diversity of political beliefs when hiring [would] almost certainly require sacrificing on general quality or other dimensions of diversity.”
Another government professor, Richard Bensel, said, “Our job is not to mold the minds of young students — they’ll go out into the world and do that for themselves…. Cornell does not have to be a banquet that offers every viewpoint.” He added thatrecent Republican debates have illustrated the deviation of “mainstream conservatives” from views that are widely accepted by intellectuals at reputable universities.
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.
Heather Mac Donald is a senior fellow at the Manhattan Institute.
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.
(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.”
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.
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.
KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.
How Accusers Play the Drinking Game at Washington and Lee
As you’ll see from the this list of stories, the male students who have the resources to challenge the illegal bullying of their constitutional rights do so by filing a due process lawsuit, like the one facing Washington and Lee. The facts, by this point, are depressingly familiar.
Two students had a sexual encounter after attending a party, during which both consumed alcohol. The next morning, the accused student drove the accuser back to her dorm. The next day, the accuser told a friend that she had a good time the previous evening, and made no mention of any assault; and the accuser hooked up with the accused student a month later. Many months later, and after working over the summer at a women’s clinic, the accuser indicated that she’d had an “evolution” in how she felt about the incident, which she now concluded was a sexual assault.
Part of this evolution was seeing the name of the accused student—who she had also discovered now had a girlfriend—on the acceptance list for a college program in Nepal. Originally posted January 26, 2015. Read more about the Washington and Lee case here.
Railroading at Vassar
Peter Yu and a fellow member of the crew team attended a party, had quite a bit to drink, and then returned to his room to have sexual relations. Yu’s roommate interrupted them, the accuser said she didn’t want to go any further, and she left—following this up with several Facebook messages, over many weeks, in which she expressed regret for how the evening had wound up. Then, on the last day allowed under Vassar procedures, Walker (whose father is a Vassar professor) filed a sexual assault complaint at the school; the timing precluded Yu’s filing a counter-claim…
Perhaps the most problematic aspect of the Yu case was the sense that the accuser—whose father, after all, is a Vassar professor—gamed the system. Her waiting until the very last moment to file charges robbed Yu of a chance to file counter-charges—that is, to claim that since both parties were drunk, the accuser was as guilty of sexual assault as was he. And her pushing the case to the IVP ensured that she would be judged solely by colleagues of her father, rather than by a mixture of students and faculty members. Originally posted April 5, 2015. Read the entire story here.
After an Alleged Rape at Columbia, “I Love You Paul. Where Are You?”
Alleged victim Emma Sulkowicz continued to have chatty and playful Facebook exchanges with alleged rapist Paul Nungesser for weeks after she says he brutally violated her and choked her within an inch of her life. After the alleged rape On Oct. 3, Sulkowicz’s birthday, Nungesser sent her an effusive greeting; she responded the next morning with, “I love you Paul. Where are you?!?!?!?!” Originally posted February 10, 2015. Read about Columbia’s “mattress girl” here.
How Drunk Can You Get at Cornell?
Two students had intimate relations after a night of drinking. Sixty-six days later, the accuser filed a complaint with Cornell, arguing that she was too drunk to have given consent. As at DePauw (see below), the university gave more weight to students who corroborated the accuser’s story than to apparently identically situated students who backed the accused’s version of events, seemingly to shoehorn a finding that would edge past the preponderance-of-evidence threshold. Apart from the accuser, Cornell’s main witness appears not to have been any of the students with whom the accused and accuser partied, but instead a close friend of the accuser with whom she breakfasted around 30 hours or so after the alleged encounter. Because Cornell now employs the single-investigator model, the accused student (and his representative) had no opportunity even to see the accuser testify, much less to cross-examine her. Originally posted March 23, 2015. Read more about the lawsuit here.
Basketball Star Accused at Xavier
After what he claimed was an incident of consensual sexual intercourse, Xavier basketball star Dez Wells was accused of sexual assault. In a mere 27 days from accusation to judgment,
the university concluded that Wells was “responsible for rape” after a process in which Wells couldn’t cross-examine his accuser and was deemed a rapist based on a preponderance-of-evidence threshold. All this occurred while Cincinnati authorities determined that there was no basis to pursue criminal charges; prosecutor Joseph Deters deemed the Xavier process “fundamentally unfair.”
In the Wells case, “justice” was swift–and unjust. So Wells filed a federal lawsuit, claiming gender discrimination and libel, and urging the court to overturn the result of Xavier’s disciplinary tribunal, called the UCB. On Wells’ Title IX claims, the order held that Wells’ allegations plausibly showed that Xavier was “reacting against him as a male to demonstrate to the OCR that [university officials] would take action, as they had failed to in the past, against males accused of sexual assault.” The judge noted that the university, which ignored warnings from the prosecutor that the sexual assault claim was unfounded, deemed Wells a rapist anyway. Originally posted March 13, 2014. Read more about this case here.
Why ‘Yes’ Means No at Occidental
Occidental is the California college whose rules allow branding a male student a rapist even if his female partner says “yes” to sexual intercourse. Moreover, the school includes what seems to be a disproportionate number of anti-due process “activists,” professors inclined toward delusional claims against their administration even as they suggest that outsiders should trust their credibility that the campus is awash in rape. The Occidental case is, if anything, more extreme than the typical due process case because of the involvement of an anti-due process member of the Occidental faculty, Danielle Dirks.
Dirks counseled the accuser to file a sexual assault claim against a male student, according to a confidential report prepared by Occidental and obtained by FIRE, because the accused student “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’” (Imagine the howling from the Occidental faculty if the school more generally used profiling on criminal matters.) Moreover, the accuser went to police, who, along with prosecutors, concluded that both parties had too much to drink, but no rape occurred, since both were “willing participants.”
Yet Occidental branded the accused student a rapist anyway. Originally posted June 6, 2014. Read more about Occidental here.
Yale and The NY Times Smear a Quarterback
Patrick Witt was a quarterback, and a very good one, at Yale. He was also a finalist for the Rhodes scholarship. It turned out that his interview for the Rhodes coincided with the day of the Harvard-Yale game. After some thought, he decided to withdraw his Rhodes candidacy and play in the game on November 13, 2011, which, alas, Yale lost. Two months later, a New York Times’ reporter, Richard Perez-Pena, swooped in with a nearly 2,000-word article splashed over the front page of TheTimes sports section announcing that the Rhodes Trust had suspended Witt’s candidacy, because it had learned that he had faced an allegation of sexual assault.
The story left everything else to insinuation, but any reader would have come away with the following conclusions: One, that Yale and Witt had conspired together to present a false explanation of why he had chosen to withdraw. Second, that Witt was something of a habitual criminal. And third, that he likely had done it. Nearly one-tenth of the article was devoted to two extraneous and minor alcohol-related arrests of Witt, the inclusion of which in the piece seemed to have the sole purpose of smearing his character.
This story received a good deal of public criticism, including from me. In response, TheTimes sort of doubled down on the story–exactly what they did in the Duke lacrosse case. They did not reassign Perez-Pena, as they had not reassigned Duff Wilson, their lead reporter in the lacrosse case. But they did authorize the public editor, Arthur Brisbane, to do his own reporting. This is a very odd journalistic strategy: a public editor reporting what the paper’s own reporter had chosen not to do.
How did an accusation of rape with no evidence, no legal recourse for the accused come to pass at a school renowned for its law school? Yale, in late 2010, decided that its sexual assault procedures were not sufficiently tilted in favor of the accuser. And so they set up a separate, informal complaint procedure for sexual assault. And it is this procedure to which Witt was subjected. Under this procedure, an accuser can file an allegation of sexual assault against a fellow classmate if he or she determines that that classmate has caused him or her to worry.
Generally, worrying does not rise to the level of sexual assault. Once this procedure is initiated, and this is a direct quote from the Yale guidelines, “the goal is to achieve a resolution that is desired by the [accuser].” In blunt language, this means that the accused student, Witt in this case, does not have the right within the Yale procedure to cross-examine his accuser. He does not even have the right to present evidence of his innocence. The accusation is accepted at face value, and the purpose of the process is to resolve it in a way that the accusing student feels comfortable.
It is on the basis of this sort of complaint, filed under this procedure, that the Rhodes Trust decided that it needed to suspend Witt’s candidacy. That’s nothing short of extraordinary. Originally posted on April 2, 2012.
J’Accuse at DePauw
By now, the specifics of the DePauw case will sound familiar. Last December, Ben King attended a party with around 30 students; most (including the accuser and the accused) appeared to have had a lot to drink. The two went back to King’s room, where some type of sexual contact (but not intercourse) occurred. King says he asked the accuser if she consented to sexual activity, and she said yes. (The accuser says that she doesn’t remember one way or the other.) Two days later, the accuser spoke to DePauw’s Title IX coordinator, claiming the sexual contact was non-voluntary. The coordinator interviewed King. After no action, nearly five weeks later the accuser said she wanted to pursue charges.
The university’s “investigation” consisted of interviews with the accuser and party witnesses recommended by the accuser (several of her sorority sisters). Reflecting what it termed its “even-handed approach” to campus claims of sexual assault, DePauw defended its decision to confine its inquiry in this manner, since interviewing all the people at the party, including neutral students, would not have been “an efficient use of limited resources.”’
The hearing occurred 12 days after the investigation ended. At the hearing, consistent with DePauw’s policies, King was denied the right to an attorney—so as to avoid “undue judicialization” of university affairs. Meanwhile, the accuser’s hearing “advocate” was married to the school’s Title IX coordinator—a figure who supplied a supposedly neutral summary of the case at the hearing, but instead appears to have impeached King. DePauw deemed the relationship between the accuser’s advocate and a supposedly neutral key factual witness “immaterial” to the outcome of the case.
In an unintentional commentary on why academics should not conduct criminal investigations, the hearing appears to have consisted mostly of DePauw’s panel asking witnesses how drunk they were (on a scale of 1 to 10) and how drunk the accuser was (on a scale of 1 to 10). Three of the four key witnesses were consistent with their written testimony, but the fourth (the accuser’s roommate who had said she sounded “fine” and “did not sound too drunk”) now rated the accuser as an 8-level of intoxication. “But,” she added, “Because I was intoxicated as well, I might have not known for sure.” The record gives no indication of the hearing panel questioning this student on why her panel testimony differed from her written statement.
King did testify during the hearing. Demonstrating the impossibility of proving “affirmative consent,” he said that the accuser verbally consented—repeatedly—to having sexual contact. He nonetheless was found guilty and expelled on grounds that the accuser was intoxicated and could not have given consent. On appeal, the university reduced the penalty to a two-semester suspension with possible re-admission, provided King demonstrated an “understanding of the issues raised by his interaction with” the accuser.
King then sued. Incredibly, DePauw cited “academic freedom” as justification for both its actions and as a reason for the court not to make an “unwarranted imposition” into university affairs. Pointing to the White House task force report, the university also argued that it was appropriate to give the accuser “some control” over the investigation (ostensibly for privacy reasons). The judge rejected King’s Title IX claim, arguing that DePauw didn’t discriminate against King on basis of his gender, but nonetheless granted a preliminary injunction, arguing that DePauw violated its contract with King. Originally posted Dec. 17, 2014.
The Donor Influence at Brown
Marcella (Beth) Dresdale was the former Brown student who accused a classmate of sexual harassment and then changed the accusation to rape. The classmate, William McCormick quickly left Brown but eventually sued both Dresdale and her father, Richard Dresdale, a wealthy Brown donor. Before the Dresdales agreed to an out-of-court settlement (reportedly after McCormick had been offered $1.05 million), the lawsuit brought to light Richard Dresdale’s aggressive involvement in the Brown procedure that minimally investigated his daughter’s claims.
The lawsuit documents and subsequent press coverage also focused on the role in the case played by Dresdale’s and McCormick’s residential counselor, Shane Reil. (Reil at the time was a Brown undergraduate; he’s now a student at BC Law School.) A few days after Dresdale filed her claim of sexual harassment, but before she alleged she was raped, Reil dined privately with the Dresdales at the home of another wealthy Brown donor.
Following the dinner, Richard Dresdale said he’d be willing to mentor Reil, who was attending Brown on a need-based scholarship. A few days later, Reil filed his report on the case, which offered a negative portrayal of McCormick. If the case had gone forward, Reil would have been an important witness, given both his position in the dorm and the apparent lack of any physical evidence to corroborate Beth Dresdale’s allegation of sexual assault.
The statements of at least two student witnesses–Julie Siwicki and Spencer Brody–evolved from slightly negative remarks about McCormick to damning portrayals. (In Siwicki’s instance, the evolution was transparent, since she inserted a highly negative paragraph into a previously-submitted, and basically neutral, e-mail.) The evolution in the two students’ statements occurred at about the same time Richard Dresdale was offering career assistance to Reil. Did similar offers to Siwicki and Brody help explain their “evolution,” or did Dresdale encourage deans to reach out to the two students for amplification? There’s no way to know.
Knowing that Richard Dresdale had made a mentorship offer to Reil would have opened up avenues for McCormick’s advocate to question Brody and especially Siwicki, to see if any improper contact had occurred between Dresdale and these witnesses. Yet according to Brown, the university’s procedure is set up so that no witness must divulge an offer of career assistance from an accuser’s wealthy father. This Catch-22 approach all but insures that improper contact between an accuser’s family and witnesses will remain secret.
Even if it was wholly innocent, the Dresdale-Reil contact illuminates yet again the limited due process protections available to accused students in campus tribunals. If McCormick had been criminally charged, the discovery process doubtless would have turned up the Dresdale e-mails, and Dresdale could have been cross-examined on the witness stand as to whether he was seeking to influence potential witnesses. Originally posted June 12, 2012. Read more about the Brown case here.
Wesleyan and Swarthmore
There are two certainties from the current crusade against due process for students accused of sexual assault. First, in coming years, there will be a higher percentage of convictions, since colleges must use the preponderance-of-evidence and are strongly discouraged from allowing accused students from cross-examining their accusers. Second, because so few due process protections exist in campus tribunals, more of these convictions will involve innocent students—who in turn will pursue legal actions to redeem their reputations and salvage hopes of a post-college career. Several recent developments illustrate both points. First: as FIRE reported, Swarthmore has reached a settlement with an anonymous student who sued the school, alleging due process violations in his case. (I wrote about the lawsuit earlier; Swarthmore’s new special master on sexual assault cases conceded that the school uses a “very low bar” to deem its students rapists.) Most of the settlement terms were confidential, but one item was public. Swarthmore has now agreed that unspecified “new information raises sufficient questions about the fairness of the hearing to warrant vacating the Panel’s finding and sanction.”
Swarthmore has admitted that it falsely branded a student a rapist, and the reason it did so was the weakness of the school’s procedures, which prevented the student from presenting evidence of his innocence. Also, a new lawsuit against Wesleyan has prompted even the biased Katie Baker to notice the due process problem on campus. The lawsuit, filed by an anonymous student who the school contended committed sexual assault for what the filing terms “non-consensual kissing,” portrays a college facing enormous pressure—both from the OCR, which wants colleges to more aggressively prosecute sexual assault cases; and from on-campus activists demanding the end to single-sex fraternities as a way to end “rape culture” at the college. (The accused student was a frat member who had opposed the policy change.) Originally posted November 23, 2014.
All ten accounts here are excerpted from original stories by KC Johnson and Cathy Young.