Rubenfeld on Campus Rape

Last Saturday, Yale Law professor Jeb Rubenfeld had an important op-ed in the Times discussing the issue of how colleges respond to campus sexual assault. His argument? “Forced by the federal government, colleges have now gotten into the business of conducting rape trials, but they are not competent to handle this job. They are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.”

Rubenfeld’s piece is noteworthy for three reasons. First, much of its content must have puzzled Times readers, given the paper’s utter disinclination to examine due process issues on campus. Expelled males suing their schools for due process violations. A Duke dean wildly claiming that when both students are intoxicated “assuming it is a male and female, it is the responsibility in the case of the male to gain consent.” Duke’s equally bizarre 2009 policy asserting that unintentional power disparities (as, between a senior male basketball player and a first-year female student could transform voluntary intercourse into rape. Who knew? Certainly not readers of the Times, whose news coverage has utterly ignored these issues, which have received extensive coverage at Minding the Campus.

Second, the piece prompted an interesting commentary from David Bernstein of Volokh Conspiracy. Bernstein raised three additional questions about the administration’s handling of the question—centered on whether the OCR’s anti-due process crusade is even lawful. One of Bernstein’s three points hasn’t received much attention. Under what rationale, he wonders, does OCR “totally forbid[] university disciplinary panels from considering an accusing student’s sexual history with anyone other than the accused”—a rape shield definition more comprehensive than that of any state, thus applying even to the rare cases “that such evidence is highly relevant.” This provision represents another violation of the “accused’s due process rights.”

Third Rubenfeld’s article provoked a backlash. That in itself isn’t surprising, but one source was—dozens of Yale Law students signed a document criticizing Rubenfeld. HuffPost’s Tyler Kingkade—a regular on the college anti-due process beat—reveals that one of the students who organized the response said that she elected to respond “as future lawyers.” One can only hope that none of the signatories plan careers in criminal law, since their indifference (to put it mildly) to due process suggests they’d be frightening prosecutors or very poor defense attorneys.

The letter is almost a caricature of political correctness, suggesting that Rubenfeld’s concern with due process is “dangerous” and “not only disrespects survivors of violence but also undermines the work of a nationwide movement to build safer, more just campuses.” Without citing to any data, the “future lawyers” also claim that “alcohol plays a serial role not because students are drunk when they have mutually consensual sex, but because repeat offenders intentionally target classmates who are vulnerable or incapacitated by reason of intoxication.” If true, this assertion that campuses are overrun with serial predators is a powerful argument for dramatically expanding the law enforcement presence on campus—something that the “future lawyers” don’t appear to desire.

 

KC Johnson

KC Johnson

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.

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