The Politics of Campus Sexual Assault

November 6, 2011

Nearly two years ago, in February 2010, University of North Dakota student Caleb Warner was thrown out of school with a three-year ban on reapplying after a campus disciplinary panel found he had violated criminal laws by sexually assaulting a fellow student. In fact, Warner was never actually charged with a crime in the justice system — but his accuser, Jessica Murray, was. In May of the same year, the Grand Forks, North Dakota police department formally charged her with filling a false report after concluding its investigation. (Murray now resides in California and has never appeared in court to answer the charge.) Yet Warner remained banned from campus until last month, when he was finally reinstated after the indefatigable FIRE — the Foundation for Individual Rights in Education — interceded to publicize his plight.

Now, some politicians are pushing for measures that would create more such travesties.

Warner was found guilty under a "preponderance of the evidence" standard of proof — the lowest standard, under which a defendant is guilty if the disciplinary panel believes it is even slightly more likely than not that he committed the offense. Traditionally, most colleges have adjudicated charges of misconduct against students under the higher standard of "clear and convincing evidence" — less stringent than "beyond a reasonable doubt," but nonetheless requiring an extremely strong probability of guilt.

Last April, however, the Office of the Civil Rights of the Department of Education undertook to change that, sending out a letter to colleges and universities on the proper handling of sexual assault and sexual harassment reports. One of the OCR’s key recommendations was to adopt the "preponderance of the evidence" standard in judging such complaints.

While these guidelines supposedly reflect federal standards for Title IX sex discrimination cases, former Education Department attorney Hans Bader has argued that they are actually based on a basic misunderstanding of federal law. In Title IX cases, the “preponderance of the evidence” rule applies to an institution accused of violating the plaintiff’s rights — not to another individual accused of an offense.

The OCR letter sparked widespread controversy, with FIRE and other critical voices warning that its proposals could undermine both due process for students and accuracy in campus sexual assault investigations in order to obtain more convictions. Yet a number of schools, including major universities such as Stanford and Yale, quickly amended their procedural rules in response. A comment from Stanford Dean of Student Life Christine Griffith strongly suggested that concerns about violations of students’ rights were not misplaced. If some were worried that the changes in the burden of proof might be unfavorable to the accused, Griffith told The Stanford Daily, it was "an opportunity for people to be saying to themselves, ‘I need to be really educated about these issues because I don’t want to find myself in this circumstance.’" In other words, it’s up to potential defendants to be extra careful to avoid any ambiguous situation that might lead to a rape charge.

Now, a new effort is underway to strong-arm colleges and universities into compliance. The Senate draft bill reauthorizing the Violence Against Woman Act, sponsored by Sen. Patrick Leahy of Vermont, would require all schools that receive federal money to follow the OCR’s guidance in disciplinary proceedings. What’s more, this version of VAWA expands the OCR’s recommendations so that the "preponderance of the evidence" standard must apply not only to complaints of sexual assault but also of domestic or dating violence and stalking. Non-compliant institutions stand to lose all federal funding, including their students’ eligibility for tuition assistance.

While these rules apply only to campus disciplinary proceedings, not in criminal court, they are still likely to have grave consequences. A student found guilty of sexual assault in such a hearing faces not only expulsion from school, but the stigma of having committed a felonious act even if it is not prosecuted under criminal law.

Sexual violence on campuses is a real problem that, until fairly recently, was usually treated with not-so-benign neglect. Yet Washington’s push to force colleges into taking a more aggressive stance is based on a highly inflated notion of an "epidemic" of campus rape. The OCR letter cited the recent Campus Sexual Assault study, commissioned by the National Institute of Justice, as evidence that one in five female students experience rape or attempted rape while in college. Yet the vast majority of the incidents in the study were related to "incapacitation" by alcohol or drugs rather than physical force — and "incapacitation" was defined so broadly as to include impaired judgment. Not surprisingly, most of the women labeled as sexual assault victims did not see themselves as such, did not feel traumatized, and did not report the alleged offense because they did not consider it serious enough.

Unfortunately, much of the feminist "war on rape" has conflated sexual assault with muddled, often alcohol-fueled, sexual encounters that involve miscommunication, perhaps bad behavior, but no criminal coercion. As a result, the drunken hookups all too common on today’s campuses can lead to devastating charges and penalties. (The accusations against Caleb Warner reportedly stemmed from such an encounter as well.) Should colleges promote responsible sexual conduct? Of course — but not by irresponsibly misusing charges of rape or trampling the presumption of innocence.

Schools: University of North Dakota Cases: University of North Dakota: Accuser Is Criminally Charged with Lying to Police, But School Refuses to Reopen Misconduct Case U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections