Rape on Campus Belongs in the Courts

May 5, 2014

By Megan McArdle at Bloomberg View

“One in five women is sexually assaulted in college,” says a White House report released last week. “We are here to tell sexual assault survivors that they are not alone. And we’re also here to help schools live up to their obligation to protect students from sexual violence.”

To combat this plague, the White House task force says colleges should take aggressive steps to prevent sexual assault. They also want the schools to have better systems to handle sexual assault, including:

  • Someone a survivor can talk to in confidence.
  • A comprehensive sexual misconduct policy.
  • Trauma-informed training for school officials.
  • Better school disciplinary systems.
  • Partnerships with the community (meaning students have access to an emergency room with a rape kit, and the campus disciplinary system works with local police while investigating the alleged crime).

Who could object to such seemingly reasonable recommendations? Well, some of them don’t sit well with me.

I’ll start with that statistic, which seems calculated for maximum scare factor. Most people, when reading a report on sexual assault that urges tougher disciplinary requirements, would assume we were talking about sexual assault of the sort that would normally be criminally prosecuted. But here is one of the reports the White House cites, and here is the list of things that the researchers asked about:

  • Touching of a sexual nature (forced kissing, touching of private parts, grabbing, fondling, rubbing up against you in a sexual way, even if it is over your clothes).
  • Oral sex.
  • Sexual intercourse.
  • Anal sex.
  • Sexual penetration with a finger or object.

I do not want to defend people who kiss women who are unwilling or incapacitated. You may call me antediluvian, but I do not want to put them in jail, either. I would like a statistic that does a better job of separating things that demand immediate prosecution from things that demand harsh social sanction.

The second thing to note is that the majority of these sexual assaults take place while the victims are incapacitated by drugs or (most usually) alcohol. Yet the word “alcohol” appears just once in the White House report. There is a passing reference to the fact that many of these crimes occur while the victim is non compos mentis, or unconscious, but no suggestion that sexual assault prevention could involve alcohol education or regulation, and no acknowledgement of the difficulty of pursuing disciplinary action when the victim, and frequently the only witness, cannot reliably testify about what happened.

Ultimately, however, these are quibbles. What’s really worrying is the task force’s ideas about enforcement. Robert Shibley, senior vice president of the Foundation for Individual Rights in Education, explains why this is so disturbing:

While it’s nearly impossible to follow all of these vague, confusing, and sometimes conflicting regulations, the parts that are clear are in many cases very alarming to civil liberties advocates or, indeed, anyone who believes in the principle of “innocent until proven guilty.” Foremost among the demands since 2011 is that colleges use the “preponderance of the evidence” standard of proof for adjudicating sexual misconduct accusations — a 50.01 percent likelihood standard that is our nation’s lowest. (In real courts, rape must be proved “beyond a reasonable doubt,” a 98-99 percent likelihood standard.)

This low standard is then used in a disciplinary procedure where students nearly always lack lawyers, no legally trained judge oversees the process, testimony is not under oath, hearsay is freely considered, relevant evidence or even proper notice of the charges may not be given to both parties, students may be forced to incriminate themselves, and whatever “jury” is empaneled may not be of one’s peers.

The task force report from Tuesday actually encourages colleges to make this situation worse. Perhaps recognizing that college hearings are delivering shoddy justice, the task force speaks highly of moving to a “single investigator” model that would entirely dispense with niceties like “hearings” or “the ability to face one’s accuser” by appointing one administrator to act as detective, judge, and jury for campus crimes. It’s difficult to see how this medieval model of campus justice would be more likely to produce just and reliable results.

Rape is perhaps the most serious felony other than murder. Whether one in five women on campus are victims of rape (as the White House claims) or the figure is more like 3 percent (as another study suggests) makes little difference as far as real justice is concerned. Serious crimes call for serious procedures and the consistent involvement of law enforcement professionals. Both victims and those accused on campus deserve better than what they’re getting now — or what they’re likely to get as a result of the White House task force’s report.

As Shibley notes elsewhere in the op-ed article, colleges pursue disciplinary action against rapists because they’re required to by Title IX, the 1972 federal law banning sex discrimination in educational programs. Unfortunately, rape is a very hard crime to prosecute, because there are typically only two witnesses, one of whom is likely to claim that the sex was consensual. Since false rape accusations unfortunately do happen, it can be hard to get to “beyond a reasonable doubt” — especially, as I mentioned, when both parties were drinking.

Rape is also a hard crime to prosecute because the trials are often horrible for the victim. Of course, no one enjoys testifying about an assault — but you are rarely asked to prove that you didn’t consent to being pummeled. The shame and horror of it keep many victims from coming forward or pressing charges.

It’s understandable, then, that many people want to loosen the standards for prosecuting rapes. This can’t be done in a criminal trial, but it can in a college judiciary hearing — and that’s just what the government, and not a few people on campus, has been pressing colleges to do.

Yet as understandable this instinct is, it’s wrong. No one accused of a serious crime should have his fate in the hands of a single investigator with a mandate to err on the side of believing the people who are testifying against him. In fact, colleges shouldn’t be handling this sort of thing at all. If a college wouldn’t conduct a murder trial, it shouldn’t be conducting rape trials, either. We certainly shouldn’t press them to punish these crimes because we can’t get a conviction in a court of law, as it sometimes seems is happening.

Title IX was written just as colleges were emerging from the old “in loco parentis” model, in which they could have parent-like rules about things such as being drunk or alone in your room with a member of the opposite sex. That gave their disciplinary systems the capacity to punish these cases, because even if the victim couldn’t testify as to what had happened, the mere fact that he’d hosted her in his room was against the rules.

I’m not saying that they did prosecute these cases, or did so well: The woman was often blamed for her predicament, the man let off with a slap on the wrist on the grounds that “boys will be boys.” I’m just saying that when in loco parentis was the rule, the Title IX rules made a certain amount of sense. Now they make no sense at all. On the one hand, colleges are supposed to treat their students as full-fledged adults who cannot be told where and when to drink, or with whom they can have sex … but we also want to say that colleges have the responsibility for ensuring that nothing bad ever happens. And that in pursuit of this goal, colleges should punish the accused with the speedy and sometimes arbitrary fiat of parental authority, rather than the ponderous and sometimes unsatisfying protections of due process.

But parental authority can be arbitrary because it is not particularly harsh. Each of us undoubtedly still smarts from some ancient injustice done by a parent or teacher who took the wrong side, but comparatively few of us could say that this permanently altered their lives. Schools are being asked to apply very serious penalties with the weak evidence claims required to send one of two fighting children to their room.

We need to pick one. If college students are children, then the college should have much wider latitude to control and punish their behavior, including taking steps to prevent these assaults, such as requiring students to live in single-sex dorms where no one else is allowed to be and imposing strict consequences for being caught drinking.

This doesn’t strike me as desirable (though perhaps it would, if I had a 19-year-old kid). However effective it might be at preventing assaults, treating women and men like children is not something I want to do. But if students are adults, and the college is not supposed to be in charge of their sex lives, then the correct place to adjudicate sexual crimes is in the courts, not the campus judiciary system.

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process