This is the edited transcript of Manhattan Institute’s March 10 panel discussion of “The Truth About Campus Sexual Assault” featuring Heather Mac Donald (City Journal), KC Johnson (Brooklyn College, Minding the Campus) Amy Wax (U. of Pennsylvania Law) and moderator Howard Husock, (Manhattan Institute).
HOWARD HUSOCK: We have been told that a crisis of sexual violence grips college and university life. By some accounts, including that of President Obama himself, one in five female undergraduates is said to be likely to experience a sexual assault over the course of their college years. Prominent feminist and Guardian columnist, Jessica Valenti, has referred to the epidemic levels of rape on university campuses. Others, however, see the cry of crisis as exaggerated, and point to the debunking of such stories as that which appeared in Rolling Stone alleging that the University of Virginia had failed to act on a woman student’s charges of fraternity gang rape.
I’m going to turn first to Heather Mac Donald. Put this in context for us, Heather.
HEATHER MAC DONALD: Let’s look at these numbers, Howard. The most common statistic thrown out these days by President Obama, Vice President Biden, on down is that one in five women will be the victims of sexual assault during their college careers.
Detroit is America’s most violent city. Its violent crime rate for all four violent felonies—that’s rape, murder, aggravated assault, and robbery—is 2%. Its rape rate is 0.05%. A 20% crime rate for any crime, much less one as serious as rape, is virtually unheard of. Not even in Africa’s most brutal civil wars has anything been experienced in human history like a 20% crime rate. And yet despite a rape rate that is allegedly 400 times that of Detroit’s, sophisticated, highly educated baby boomer mothers are beating down the doors of campuses to try to get their daughters in.
The frenzy of college admissions begins earlier and earlier each year. Here in Manhattan, parents are paying $200 an hour for tutoring for prekindergarten, all in the hope of getting their little darlings into Harvard 14 years later.
The White House Council on Women and Girls says that the survivors—and be sure to use the word survivors—of sexual assault on campus suffer lifetimes of post-traumatic stress syndrome, eating disorders, suicidal thoughts. What are we seeing in fact? Girls graduate at 23% higher rates than men on campus, and go on to lead highly lucrative careers. If the rape epidemic was going on as claimed, we wouldn’t merely have rape administration Title IX bureaucracy sprouting up on campuses because there would be no more campuses. You would have had a massive exodus of girls from college campuses years ago, and a demand to create actually safe environments for student learning. Why hasn’t that happened? Because the campus rape epidemic does not exist.
An article and survey in Ms. magazine started all this in 1986. They reported—at that point it was a one-in-four figure— that 73% of the women who Ms. magazine and their researcher, Mary Koss, declared to be rape victims, when asked directly, “Have you been raped?” said they hadn’t been. Forty-two percent of those alleged rape victims went on to have sex again with their alleged assailants.
Now I submit that it is unthinkable that somebody who has actually been raped would voluntarily have sex again with her assailant. So if it’s not rape, what is going on campuses? A culture of promiscuous, drunken hook-up sex, with zero norms on promiscuous behavior in which girls drink themselves blotto precisely in order to reduce their sexual inhibitions. And this hook-up culture has produced a nervous breakdown in the ethic of sexual liberation.
Let me give you a classic case of a proven and adjudicated campus rape. This occurred at Occidental College, the sometime alma mater of President Obama.
In 2013 a freshman had been drinking all weekend, pre-gaming– drinking before the drinking party. So she’d been pre-gaming, and then drinking at the party and having sexual activity on a bed with a male freshman in his dorm. Her friends shooed her out. Back in her own dorm room, she texted him and they arranged a tryst. He said, “Get down here.” She said, “Okay, as soon as I can evade my friends I’ll get down there.” She texted him, “Do you have a condom?” And then before she left her dorm room to go down to his, she texted her friends back home and said, “I’m going to have sex now,” which is what they did. She got herself back to her dorm room, and the next morning texted him and said, “I think I left my belt and my earrings there.” And she came and picked them up. And they texted some more.
She then noticed that while she felt an emotional pang from their sexual encounter, he was walking around campus seemingly oblivious. It didn’t make a difference to him. And then the campus feminists got their hands on her and persuaded her that she had been raped because she was very drunk. So was he. But the rule now is we are re-importing selective portions of the Victorian ethos. The rule is that males are the sole guardians of female safety. And so he was expelled on the ground that he should have known that she was too incapacitated to consent.
I think if you’re a guy and you get a text message asking if you have a condom, and arranging a tryst, I would assume it’s fairly safe to think you’ve got a voluntary participant, but that’s not the way the rules are going now. So it cannot be overstated how bizarre the situation is on campuses today. Every time I ask a campus sex Title IX administrator, “Why don’t you send the message to girls that you could prevent what you’re calling an epidemic of rape overnight if you start exercising traditional virtues of prudence and personal responsibility? Why don’t you send that message to a person?” I get the answer, “Because rape is never a woman’s fault. I don’t want to suggest that it is her fault.”
So these campus administrators are more interested in preserving the principle of male fault than in preventing what they insist on calling an epidemic of campus rape.
HOWARD HUSOCK: KC, Heather’s story about the expulsion and the circumstances segues nicely to the legal questions that you’ve been writing about. How is it possible that somebody could be expelled given the facts as Heather outlined them?
KC JOHNSON: What Heather is describing is hardly unusual. There’s been a revolution on campus in the last four years that largely has escaped public attention, and you can think of it as a kind of three-pronged, mutually reinforcing approach. The first has been that of the Federal Government, which in 2011, through a largely obscure Federal agency called the Office for Civil Rights in the Department of Education, creatively expanded the interpretation of Title IX, this kind of foundational law of gender equality in higher education.
Since the late ‘90s there had been suggestions that sexual assault also legally could be construed as sexual harassment, but in neither the Clinton nor the Bush administrations had this been enforced in any meaningful way. But in 2011 the OCR put together what was called a “Dear Colleague” letter. It’s been reinforced in 2014 guidance from OCR and from the White House, basically mandating colleges to change the procedures through which they evaluate sexual assault, to make it far more likely that students accused of sexual assault will be convicted on threat of losing Federal funding and undergoing Federal investigation to change the procedures through which they evaluate sexual assault. That is the intent–the purpose of these changes.
So the Federal Government has ordered colleges to lower the burden of proof in sexual assault cases to a preponderance of evidence, 50.01%. The Federal Government has ordered colleges to introduce a double jeopardy principle to give an accuser the right to appeal a not-guilty finding in a campus sexual assault tribunal.
The Federal Government has strongly encouraged—and when the OCR strongly encourages you to do something, most spineless administrators do what they’re told—had strongly encouraged colleges to prohibit accused students from cross-examining their accusers in these tribunals. But these tribunals often have rules that deny accused students the right to an attorney. So the practical effect of this is that an accuser is never cross-examined at all. And in the most recent guidance, the Federal Government has encouraged schools to eliminate hearings entirely, to move to a single investigator model in which the accused student will never have an opportunity to even see his accuser questioned.
So this is bad enough. And if it were just these changes, we would all be horrified. But there have been two reinforcing elements. The first is that as these changes were mandated by the Federal Government, universities, almost entirely—I would say my university, CUNY, is an exception—have gone above and beyond what the OCR has mandated because these changes have been welcomed by certain constituencies on campus—two in particular—gender studies, faculty—and student life administrators, in some ways the fastest growing employment opportunity on college campuses today.
And a great example of this is the new procedure at Stanford. Stanford instituted all these changes that OCR mandated, but then added two others, beyond what OCR had mandated. If you’re accused of rape at Stanford, you go before a four-person tribunal. Previously, to be branded a rapist, all four people on the tribunal had to, by clear and convincing evidence, believe that you’re a rapist. Under the new standards, you only needed a three-to-one vote on a 50.01% threshold. And nothing in OCR’s guidance talked about eliminating the requirement of unanimity.
And then secondly, Stanford instituted special training for all tribunal members, which OCR likewise has not mandated. And among the things that this special training instructs the tribunal members is that if an accused student presents its case in a “persuasive” and “logical” fashion—and those are the two adjectives used—you can presume that the student is guilty of sexual assault. By the way, this guidance also say that if the accused student is evasive, he also can be presumed guilty of sexual assault.
How a student can either not be evasive and also not be persuasive is not entirely clear to me. Essentially any behavior from an accused student can be interpreted as presuming guilt. So that’s the second prong.
And then the third mutually reinforcing prong has been these activists. Howard mentioned the OCR complaints. OCR has essentially—subtly and not so subtly—encouraged accusers to file complaints with OCR which gives OCR additional authority to investigate universities. These investigations can go on for months or for years. They’re very expensive.
But the accusations within the OCR complaints have been accepted as gospel by the three cardinal media coverages of this story—The New York Times, BuzzFeed, and Huffington Post—which collectively have devoted hundreds of articles to this topic, almost all of which have uncritically accepted the versions presented by the accusers. And the consistent pattern in these articles is never to describe the actual policies that universities use.
So the typical reader, unless, of course, they read Heather’s stuff or my stuff, really has no sense of this. A fair-minded reader of The New York Times would assume that universities allow an attorney and discovery. If a student is accused of rape, you must have some sort of fair procedures, but no fair procedures have persisted. And that in turn has bumped pressure back up to the political front.
We’ve seen in the current Congress a bipartisan coalition of senators—and this is important—Republicans have been almost entirely absent in oversight on this issue—a bipartisan coalition of senators working under the aegis of Senator Kirsten Gillibrand, the most ardent foe of due process in the current Congress, to push more changes on campus and to blue states. California, legislatively, and New York, by executive order, have instituted new procedures, the so-called “Yes means Yes” or Affirmative Consent Procedures, that have, in just a remarkable approach, defined rape differently for college students than for any other residents of the state. So if you are a 20-year-old accused of rape in California, how your case will be adjudicated depends on whether or not you’re a college student. And this is a remarkable shift. This is a problem which is unfortunately, I think, getting worse. We’ve seen some push back from elite law faculty, but that’s been it.
HOWARD HUSOCK: Speaking of elite law faculty, I want to turn to Amy Wax and ask you two things. One, I’d love your reaction to Heather’s description of the atmosphere, since you’re on campus, and help us understand why you were one of the signatories to a Penn Law School Faculty letter expressing concern about the kinds of procedures that KC has outlined.
AMY WAX: Let me start by taking you into the sacred precincts of the faculty meeting room where this matter first came to our attention. We had been aware of it, but our general counsel at the University of Pennsylvania, someone I’ve known for many years, came to give a presentation to the Law Faculty which basically consisted of a ukase from central campus in the form of “These are our new sexual assault procedures. They come down from above. There’s a lot of money at stake here. Take it or leave it.”
I won’t bore you with all the details, but the procedures that Penn implemented in response to many of the OCR initiatives and strong messages coming from the Obama administration did have many of these very questionable features that Professor Johnson detailed: no cross examination, which was a very great concern to our faculty; the appointment of a former sexual violation prosecutor as both investigator and judge, as sort of the central figure in our Title IX office, which also gave us pause; a very limited role for lawyers in these procedures; an incredibly vague substantive standard, which is at the heart of our sexual misconduct code or our code of conduct for our students—and I’ll talk about that because I think that really needs a lot more attention than it has gotten.
So a lot of these features were presented to us as a fait accompli, and they resulted in quite a contentious back and forth between the professors present at this meeting and our general counsel. So our letter of protest—and as far as I know only the Harvard faculty has also issued a letter of protest— was spearheaded by those who teach criminal law and criminal procedure, a number of whom are impeccable left-leaning liberals. And, as you know, those people are very scarce on campus [laughter], but we just happened to have a few.
And the main concern actually that motivated the writing of the letter came from David Rudovsky, a very seasoned public defender in Philadelphia, who was the principal on the case that challenged the stop-and-frisk policy of the Philadelphia police. So he is very much concerned about the rights of the accused and of defendants. And he said, “In my experience,” –and he had actually been involved in many sexual assault cases on campus. He had been called in on those cases—“without cross examination, you will get it wrong most of the time. Cross examination is the best instrument for ferreting out the truth and the correct answer that was ever invented.” And, of course, there’s hundreds of years of criminal law history behind that. So that alarmed him very much, and that resulted in the decision to write this letter.
Now the focus of the letter was on the procedural shortcomings of the Title IX regime that we had set up at the University of Pennsylvania, which is very similar to that on many campuses, and I’ve given you some of the aspects that we objected to. But there were two other elements of the way that the University has treated this so-called epidemic of sexual assault that were also discussed in great detail among the faculty.
The first is going back to the substantive standard. The criminal law has been working on the definition of sexual assault and rape for centuries. It is a very, very difficult area for many reasons, in part because very often these occurrences take place in private. There are only two witnesses. Emotions are high. Impressions differ between the parties. It’s an area in which it’s very easy to get the wrong answer and to create injustice, either to the victim or to the accused. The criminal law has been trying to calibrate the definition of “actionable sexual assault” for a very long time.
Essentially what the universities have done in creating this designation in the codes of sexual misconduct is to throw out the insights of all of rape law and come up with a kind of new, extremely pro-victim definition of culpable conduct.
At the heart of this, to the extent one can discern what actually counts as sexual misconduct, at the core of it is that the woman is somehow coerced or she doesn’t consent. Well, the bottom line is this all has to do with what’s in the woman’s mind and how she feels. It’s purely a subjective standard.
Now in the law it’s also a subjective standard, but almost every jurisdiction has created a counterweight to that, which is the so-called guilty mind requirement for the accused, the mens rea requirement, and it goes something like this: if she can prove that she didn’t consent, technically there’s been sexual assault, but the accused always has the opportunity to come forward and show that he reasonably believed that she consented because there were no objective indicia from which a reasonable person could infer that she didn’t want to do it. So this gives the accused an enormously important safeguard of objectivity in order to be let off the hook.
Well, our campus code has no explicit mens rea defense. It’s purely a strict liability code, and one in which a woman could effectively sit there and say to herself, “I don’t want to do it,” without ever having to communicate it in any objective way, and that creates an enormous trap for the unwary. So I am just giving you a demonstration of how campuses have, in effect, felt free to change the entire playing field for what constitutes sexual misconduct.
One other thing I want to say is that there is also great concern among individuals on the faculty of the void of information that we have about the kinds of complaints that are being made on campus. We have these very ill-designed surveys which are not trustworthy, in my view, where we have impressionable women essentially asked about all sorts of situations that no one would really consider a sexual assault, which inflates the numbers, but we don’t have any catalog, any information about what the complaints on campus are like: what exactly is being alleged; what sorts of conduct are we talking about; how many of them involve alcohol, drugs, physical force, threat of force, or other forms of discomfort, coercion, and the like; and that’s because, of course, we have this fetish about confidentiality.
So we’re operating in this void where anybody can say anything about how much sexual assault and misconduct occurs on campus, and there’ll be no check on those assertions and allegations.
HOWARD HUSOCK: Heather, Is any good news in this rather bleak assessment that we’ve just heard? As the father of three boys, if they were starting college today, you’d better believe I’d be telling them, “Consider monasticism.” [laughter] Is there the possibility of a silver lining here where restraint and personal responsibility, enforced almost with the kind of shotgun wedding force that we once saw in this country, could be returning, and that might set the stage for a return to courtliness or some good outcome?
HEATHER MAC DONALD: Here’s the standoff. You’ve got the male libido and the male rationality. Which do you think is going to win out in that battle without any sort of reinforcement from cultural norms? There is no question that if you’re a rational male, you look at these campus tribunals, you look at the due process failings, the incredible kangaroo courts that are stacked against you, and you say, “It isn’t worth it. I am going to protect myself by courting women, by writing them love letters, sending them bouquets, dating them, and walking them home at night because otherwise if I participate in this bacchanal and get involved in the drunken hook-up culture, I am at enormous risk of a grotesquely unfair adjudication against me, and getting kicked out of school.”
Ideally, males start to reimport a more traditional sexual code. Whether that will happen, I don’t know. The drinking culture is still so strong, and guys are in this world still so crazy with what sexual liberation has allowed them, that I’m not so certain I would bank on their rationality winning out over their libido.
It is a very, very odd moment on campuses today because you have females on the one hand asserting their right for maximum promiscuity, and also asserting their right to reimport selective portions of the Victorian ethos that portrays them as completely helpless, and it’s up to the males to protect them.
Amy mentioned that the affirmative consent standard, affirmative consent is so Victorian that it portrays females as incapable of even saying no. What affirmative consent is replacing is the idea that no means no. Now we’re saying females should not even be expected to say no.
The male needs to see a constant demonstration of affirmative consent. What does that consist of? Well, in California there is a very widespread sexual code that’s present at Occidental, Claremont McKenna, and you can negate—and again this gets to Amy’s discussion of the traditional, common law, careful evolution of rape law, and what we’re replacing it with. Now the female can negate consent by simply showing confusion and ambivalence.
Well, good luck litigating that. We have forgotten that sex is the realm of the irrational and the uncontrolled, and if you don’t know that, check out Ovid’s Metamorphoses, Boccaccio’s Decameron, or Euripides’ The Bacchae. Of course those books are not even allowed on campus anymore.
HOWARD HUSOCK: Since Amy and KC are both on campuses today, what is the experience, in your view, if you look at this film, The Hunting Ground, these are very affecting interviews with young women who truly believe they have been victims of sexual assault.
AMY WAX: I’m not denying that there are some women on campus who are truly raped. I think it’s quite rare actually, but it does occur. I’m really talking about a much broader group of women who are somehow laboring under this impression—I will call it, in many cases, delusion—that they have been in some ways coerced or assaulted, and perhaps they think that way, and I’m going to sort of offer a diagnosis.
I would start with something that I notice in young people when I talk to them, and I have to confess. I’m 62 years old. I went to college in the early ‘70s. Things were very different back then, although they were starting to change quite a bit, and I really struggled to relate to some of the young women and the way that they think about these issues and just think about their sexuality. And I think one dogma that just has them completely in an iron grip, much to their detriment—and it is dogma—that male and female sexuality is the same essentially, and that it’s male, in that people really do enjoy just sort of these recreational, casual sexual encounters. They don’t really need to know each other very well to have good sex; that this is just a great way to have fun and the like.
I can tell you that when I was in college, that was not the presumption. The presumption was that women did not want to have sex with men they hardly knew. Now it was a presumption that could be rebutted, and was rebutted at times, but people just understood. It must have been the way they were brought up, that men and women had different sexual profiles and preferences, and that these had to be brokered and mediated through old fashioned sexual norms of courtship, dating, understandings, and, of course, some degree of control by women of men’s behavior, which of course is an anathema that we should even think about that as something that women might be interested in doing.
So I think what happens is women kind of wake up and discover that there’s a cognitive dissonance between the ideology peddled to them about the sameness of sexuality of men and women. And their feelings and their reactions are often disappointed, aggrieved, offended, upset. They don’t like the way men behave. Well, welcome to being female.
The norms that we had when I was in college really helped women say no. I think norms do matter. So the presumption was when you said no. When men came on to you, like in the first 24 hours, you would say, “Well, I hardly know you.” And the implication of that was “I’d like to get to know you better. I’m putting you off sexually not because I don’t think you’re cool but because I am into you.” Now if you refuse a guy, it’s kind of an affront and an insult. Women are expected to want to have sex immediately with people they barely know. Ironically and paradoxically, this makes it harder for women today to really understand themselves, know themselves, and get what they want than it was when I was young.
HEATHER MAC DONALD: Amy’s absolutely right that the default in the pre-liberationist world was no. And that meant that females did not have to negotiate each sexual encounter and provide justifications for not having sex.
Now sexual liberation says the default is yes, puts the burdens on females to justify not having sex. What I see going on on campus with these bizarre tribunals, with the affirmative consent standard, it’s sub rosa moving of the default back to no. We’re not there yet, but we’re moving in that direction with the burden, again, becoming so risky for males that now the affirmative consent is basically saying the default is no again.
KC JOHNSON: I think Heather is overly optimistic. I tend to be more pessimistic on these issues as a whole. On the tension between libido and rationality, it’s not my sense that that’s how the issue is being interpreted, by and large, by most students, male and female. And a comparison here is how the Duke student body responded to the lacrosse case, and how the UVA student body responded to the rape hoax and Rolling Stone last year.
At Duke there was a degree of skepticism among the students. The students were the open-minded people. The faculty were the rush-to-judgment crowd. At UVA there was none of that. The students, including the student newspaper, which behaved abominably in the UVA case, accepted hook, line, and sinker the version of events that was being presented in Rolling Stone. And the reason for that is that it appears as if lots of students, male and female, have more or less internalized this one-in-four or one-in-five statistic. Most students have no clue what the disciplinary procedures of their college or university are, and learn it only if they happen to be charged. And the definition of sexual assault is so arbitrary, that you could have a student who behaves in the exact same way with five women. With four, there’s no problem at all, and the fifth, 364 days after the encounter at a school where the statute of limitations was 365 days, say this deliberately had happened in the case at Vassar, the women could decide on the 364th day that it was a sexual assault, you could be charged, and within 28 days you would be expelled from the school.
That’s a real story. The student is suing Vassar. The story is actually worse than that because the procedure was rigged. The accuser was the daughter of a Vassar faculty member, and two of the people on the tribunal were colleagues who knew the accuser’s father.
I don’t see any indication that students are actually internalizing the lessons that Heather mentions.
I think in fact what we’re seeing is—and this is a very, very troubling thing to me—that students are internalizing and are accepting uncritically the one-in-five mantra, that they actually believe that they are now in an area as dangerous to women as war-torn areas of the Congo.
We cannot have one definition of rape on campus involving so many of our most intelligent people, and have the traditional criminal law stand. Eventually the fear is that as we’ve seen already in California, this definition will then spill over into the criminal law itself, which would be a catastrophic outcome.
AMY WAX: I don’t think there’s any possibility of “going back” to the ‘50s. I mean this is just a fantasy. I think a kind of mid-course correction towards common sense about male-female relations might well be in order. I have found myself extremely disappointed with young women and with the education that they’re getting, which does not stress the values of our patrimony of fairness, of citizenship, of the importance of the procedural protections in our system, where they come from, how vital they are to justice, not just for the accused, but also for victims because victims can, of course, very quickly become accused. So the role we play in society can switch quite rapidly. And I just see this as a kind of void in their understanding and in their education and in their sense of their selves as citizens.
It’s easy to forget that there was a time when women were thought unsuited to the incidence of citizenship to serve on juries, to testify in court, to vote, to serve in all sorts of legal capacities precisely because they were too weak, too helpless, too vulnerable, too addled to sort of withstand some of the challenges that those forum might present. And I see women now sort of returning to that with no understanding of how pernicious those ideas are and how they’ve held women back for centuries.
HEATHER MAC DONALD: It’s not just the students. The professors are going along with it. I mean it should be our universities that are the repositories of the due process tradition, and that realize more than anybody else that this is the glory of Western culture, that we have developed an understanding of what due process of law is, and yet it’s the adults on campus that are also willing to throw it over. It’s just amazing.
HOWARD HUSOCK: It’s quite fascinating to me that we’ve seen this discussion evolve in an unexpected direction from the isolated circus atmosphere of campuses toward the panel’s concern that this quasi-legal standard is going to undermine respect for law and change the law broadly. And so I think the concern that you’re sounding is more alarming than I expected at first. Just an observation.