As “rape culture” activism heats up, reporters are demonstrating a startling credulity on the subject. One case in point is the Chronicle of Higher Education‘s recent investigation of Title IX complaints from 2003 to 2013. The piece, entitled “Promise Unfulfilled?,” illustrates the faulty assumptions driving many journalists who cover campus sexual assault .
The nearly 3000-word article, by Jonah Newman and Libby Sanders, advances the following thesis: the fact that only 10 percent of Office of Civil Rights complaints filed in the past decade led to settlements is evidence of “a process that…can be fraught with confusion and conflicting expectations, and often brings unsatisfying outcomes.” It makes that argument, however, in an unusual fashion.
First, and most obvious, the article never mentions–not even once(!)–the OCR’s 2011 “Dear Colleague” letter which demanded that colleges lower the threshold for convicting accused rapists , even as the piece addresses the years both before and after the OCR unilaterally, and dramatically, reinterpreted federal law. This oversight is particularly baffling given that many Title IX accusers wish to force adoption of new policies that increase the likelihood of colleges branding some of their students rapists. A pre-2011 complaint (when the OCR still respected due process on sexual matters) would obviously yield a different outcome than a filing made after 2011 filing, the period in which the agency has all but declared war on due process.
It seem obviously relevant that the OCR now interprets Title IX as requiring colleges to use the lowest threshold to establish guilt and to allow accusers to appeal not-guilty findings; and that the agency strongly discourages colleges from allowing an accused student (who often is forbidden access to counsel) from cross-examining his accuser (even when the accuser is the only witness). But readers of this article would have no way of knowing that the basic definition of Title IX has transformed in the last couple of years.
Second, Newman and Sanders include this passage, regarding a Title IX complaint against Amherst: “Amherst had strong policies in place, the team concluded. But in some cases, like hers, those procedures hadn’t worked very well.”
The linked report doesn’t use the phrase “strong policies”; rather, this appears to be Newman and Sanders’ own description. And what precisely are these “strong policies“? As with virtually all Title IX articles, Newman and Sanders don’t explain Amherst’s actual policies, which include: a biased jury pool (“all Hearing Board members will have prior experience in, and will receive annually training regarding, the dynamics of sexual misconduct”); a minimal standard of guilt (preponderance-of-evidence); an inability of the accused student to cross-examine his accuser (“The Respondent’s questions must be directed through the Chair. The Chair will ask the Complainant those questions that are deemed relevant.”); and no legal representation for the accused student during the hearing (“Attorneys cannot participate in the Hearing Board process.”)
Does a “strong” policy mean one that denies basic due process? This sort of “hard-news” editorializing might be expected from Katie Baker in BuzzFeed.
Third, consider the jarring manner in which Newman and Sanders start their article: “In a recent surge of demands that colleges step up their response to rape, students have put their faith in the federal civil-rights law known as Title IX.” Yet as Newman and Sanders surely know, colleges define sexual assault far more broadly than the criminal definition of “rape.” While Yale’s assertion that intimate partner violence includes such offenses as “economic abuse” might be extreme, few if any colleges define sexual assault as simply “rape.”
If, however, colleges need to “step up their response to rape,” perhaps the more appropriate question might be one left unasked by Newman and Sanders. None of the accusers in their article appear to have filed a complaint with the police. Is there something wrong with college culture that is discouraging victims of violent crime to seek support from law enforcement? Perhaps colleges should address this issue first.
(Photo credit: ThinkProgress.)