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Emily Yoffe on ‘The College Rape Overcorrection’

By December 8, 2014

Emily Yoffe has thoroughly examined and thoughtfully considered the complex issue of how colleges and universities handle allegations of sexual assault, and the result is a must-read article published yesterday in Slate.

Yoffe starts by detailing the case of Drew Sterrett, a former University of Michigan student who is claiming in a lawsuit (PDF) against the university that it punished him for an alleged sexual assault without a fair hearing and despite significant exculpatory evidence. This account may not surprise readers familiar with John Doe’s pseudonymous lawsuit against Occidental College (which Yoffe also discusses in her piece), or the case of Caleb Warner’s expulsion from the University of North Dakota. To those unfamiliar with these cases, though, Yoffe’s summary will be a harsh but necessary introduction to the state of due process rights for college students accused of sexual assault.

Yoffe explains how colleges and universities are under increasing pressure to demonstrate efforts to address the problem of campus sexual assault, and that many changes in policies and procedures adopted as a result infringe on accused students’ due process rights. Advocates for such changes argue that they are necessary, often asserting that one in five women will be the victim of a sexual assault while in college. This is a reference to a heavily criticized College Sexual Assault Study (PDF) at two public universities that found that one in five college women would experience assault or attempted assault, including kissing and “rubbing against you in a sexual way, even if it is over your clothes.” Yoffe goes straight to the source of the statistic, asking College Sexual Assault Study (CSA) author Christopher Krebs to comment on its application in recent debates. Yoffe writes:

There are approximately 12 million female college students in the U.S. (There are about 9 million males.) I asked the lead author of the study, Christopher Krebs, whether the CSA represents the experience of those millions of female students. His answer was unequivocal: “We don’t think one in five is a nationally representative statistic.” It couldn’t be, he said, because his team sampled only two schools. “In no way does that make our results nationally representative,” Krebs said. And yet President Obama used this number to make the case for his sweeping changes in national policy.

Similarly, Yoffe spoke with David Lisak, whose study on repeat offenders (PDF) has also played a significant role in discussions about campus sexual assault.

I asked Lisak whether it was fair to presume any given accused student is a serial predator. He said such a supposition would be “sloppy thinking.” He went on: “You have to investigate the assault and who the individual is. Everything hinges on the investigation.” He also said that a major problem with adjudicating campus sexual assault is how ill equipped universities are to conduct such investigations.

FIRE could not agree more—each case must be assessed by competent professionals based on the facts and evidence of that individual case. But as Yoffe writes, colleges are expected to somehow keep students safe without the help of law enforcement:

How could an allegation of a clearly criminal act not be reported directly to law enforcement? As my colleague Dahlia Lithwick has explained, the federal government mandates that schools offer a “noncriminal, survivor-centered, confidential response” to victims. This means not reporting a crime to the police if the victim prefers not to. … Respecting the feelings of victims is important, and crucial to encouraging more women to report violence. But elevating the psychological comfort of victims over society’s need to punish criminals will only let perpetrators go free.

As FIRE’s Joe Cohn argued, police involvement is essential for keeping perpetrators off the streets. Further, timely reports improve the chances of a successful prosecution. These principles are not being emphasized enough:

FIRE’s Joseph Cohn says the unfortunate but pervasive message students get is that law enforcement is not there to help. “It’s not perfect. But that’s not the argument for seeking justice outside it.” If victims don’t go to the police, he adds, “the conviction rate is zero.” He says when students are getting sexual assault education, administrators must emphasize the importance of procedures to protect evidence and must tell them about going to the hospital to get a timely rape kit—it has to be done within 72 hours. Doing so doesn’t mean a student is committing to a criminal charge. But without such steps, it can be futile to later try to bring one.

The question of what precisely colleges and universities should do to address campus sexual assault is not an easy one. In this article, Yoffe has articulated many of the complicating factors that must be considered in crafting an effective plan to protect campus communities and the rights of those who are accused of sexual assault. She writes in her concluding section:

What is to be done? How can the government and institutions of higher education address sexual assault, support victims, identify predators, and not unfairly punish innocent students?

A good place to start would be scaling back the powers of the Department of Education’s Office for Civil Rights, which has overstepped its bounds in micromanaging university policies and enforcing draconian rules that infringe on the rights of the accused. And before making policy based on alarming statistics, officials should ponder a study’s limitations and read all the footnotes.

Yoffe’s warning against hasty decisions is especially critical in light of the recent call for policy changes following Rolling Stone’s November article on Jackie, a University of Virginia student who alleged she was gang raped by seven men at a fraternity party. As FIRE wrote last week, the still-unfolding story confirms our position that colleges are not equipped to handle allegations of sexual assault without law enforcement, and in attempting to do so, they are failing all parties involved.

There is much more to Yoffe’s excellent piece—please read it in full in Slate.

Schools: University of Virginia Occidental College Cases: Occidental College: Student Found Guilty of Sexual Assault After Incapacitation Standard Is Misapplied National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process University of North Dakota: Accuser Is Criminally Charged with Lying to Police, But School Refuses to Reopen Misconduct Case