By Cathy Young
Earlier this month, shortly after the announcement of a sexual harassment investigation targeting Yale University, the Department of Education's Office of Civil Rights issued a "Dear Colleague Letter" to colleges on the handling of sexual violence cases. On the same day, April 4, Vice President Joe Biden kicked off a nationwide "awareness campaign" on schools' obligations toward victims in a speech at the University of New Hampshire. But will this campaign truly help victims of sexual assault - or is it likely to trample on the civil rights of students accused of such offenses, and promote more panic and paranoia on campuses?
Some of the recommendations in the OCR letter are innocuous enough, such as providing a grievance procedure for students to file complaints of sexual violence and an equal opportunity for both sides in such cases to present witnesses. Others, however, are more troubling; indeed, former Education Department attorney Hans Bader concludes
that the document "undermines due process and accuracy" in the quest for more convictions. While these are convictions under campus disciplinary proceedings, not in criminal court, they are still likely to have grave consequences: not only expulsion from school, but the stigma of having committed a felonious act even if it is not prosecuted under criminal law.
Perhaps the most problematic of the OCR's recommendations is that sexual assault complaints should be adjudicated under the standard of "preponderance of the evidence," rather than the "clear and convincing evidence" standard currently used by many universities. (In response, Stanford and Yale are already amending
their procedural rules.) As Bader puts it, "'Preponderance of the evidence' means that if a school thinks there is as little as a 51 percent chance
that the accused is guilty, the accused must still be disciplined." In his view, this requirement is based on a fundamental misunderstanding of federal law: In Title IX sex discrimination cases, the "preponderance of the evidence" standard is meant to apply to an institution accused of violating the plaintiff's rights, not to another individual accused of an offense.
The full text of the “Dear Colleague Letter” also warns that “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing,” on the grounds that such questioning may be traumatic or intimidating to the alleged victim. In practice, this policy will severely limit the right of the accused to cross-examine the accuser, particularly since the letter also states that “OCR does not require schools to permit parties to have lawyers at any stage of the proceedings” (the only requirement is to treat both parties equally in this respect). The constitutional right to confront the accusing witnesses applies only to defendants in real courts; however, Bader points out that such a right in campus hearings is recognized by some state education codes, and a few judges have even held that it is constitutionally required in certain cases.
Like many such campaigns, the administration’s new push for a more aggressive approach to sexual assault complaints relies on claims that sexual violence on college campuses exists in epidemic proportions. The OCR letter cites a recent study showing that one in five female college students (and six percent of the men) experience a completed or attempted sexual assault during their school years. This data comes from the Campus Sexual Assault Study
commissioned by the National Institute of Justice and conducted in 2005-2007.
However, a close look at the CSA Study’s findings raises some serious questions about its reliability. First of all, the vast majority of the incidents it uncovered involved what the study termed “incapacitation” by alcohol (or, rarely, drugs): 14 percent of female respondents reported such an experience while in college, compared to six percent who reported sexual assault by physical force.
Yet the question measuring incapacitation was framed ambiguously enough that it could have netted many “gray area” cases: “Has someone had sexual contact with you when you were unable to provide consent or stop what was happening because you were passed out, drugged, drunk, incapacitated, or asleep?” Does “unable to provide consent or stop” refer to actual incapacitation – given as only one option in the question – or impaired judgment? An alleged assailant would be unlikely to get a break by claiming he was unable to stop because he was drunk.
Not surprisingly, three-quarters of the female students in this category did not label their experience as rape. (Even when penetration was involved, only 37 percent of the women the study classified as victims of rape by incapacitation believed they had been raped.) Two-thirds said they did not report the incident to the authorities because they didn’t think it was serious enough. Interestingly, only two percent reported having suffered emotional or psychological injury – a figure so low that the authors felt compelled to include a footnote asserting that the actual incidence of such trauma was undoubtedly far higher.
The CSA Study’s estimate of sexual assault by physical force is somewhat problematic as well – particularly for attempted sexual assaults, which account for nearly two-thirds of the total. Women were asked if anyone had ever had or attempted to have sexual contact with them by using force or threat, defined as “someone holding you down with his or her body weight, pinning your arms, hitting or kicking you, or using or threatening to use a weapon.” Suppose that, during a make-out session, the man tries to initiate sex by rolling on top of the woman, with his weight keeping her from moving away – but once she tells him to stop, he complies. Would this count as attempted sexual assault?
Notably, even among the women the study counted as victims of forcible sexual assault, 37 percent said they did not contact law enforcement because they didn’t think a crime had been committed. When the first campus rape studies in the 1980s found that many women labeled as victims by researchers did not believe they had been raped, the standard explanation was that cultural attitudes prevent women from recognizing forced sex as rape if the perpetrator is a close acquaintance. This may have been true twenty-five years ago, but it seems far less likely in our era of mandatory date rape and sexual assault workshops and prevention programs on college campuses.
The CSA Study does point to real and painful problems. An estimated 3.5 percent of college women become victims of forcible sexual assault during their school years; a similar number may be assaulted when genuinely incapacitated. (Of 5,466 women surveyed, 31 said they had been sexually attacked after being drugged without their knowledge.) Most of these crimes are not reported to law enforcement, often because the women lack sufficient proof or don’t want anyone to know what happened. A small percentage said they feared reprisals from the perpetrator.
Yet it also seems clear that the figures cited as justification for ultra-hardline measures that include the removal of important protections for accused students are wildly inflated. And, while victims of sexual assault certainly deserve sympathy and support, it is important to remember that college students – nearly always men – can also be victimized by false charges of sexual assault. The Duke rape hoax of a few years ago is the best-known reminder of this fact, but it is far from the only example. A Vermont Law School student
, Joshua Vaughn, is currently suing the school over a sexual assault charge of which he was ultimately cleared by an internal conduct panel – but not before, Vaughn claims, he was ostracized on campus and suffered serious damage to his academic career. The case stemmed from a sexual encounter after an evening of drinking, and was pursued against the alleged victim’s wishes after she mentioned it several months later to two “student ambassadors” who reported it to a dean.
Commenting on the recent changes in sexual assault investigation procedures at Stanford, Dean of Student Life Christine Griffith told The Stanford Daily
, “For people who might be concerned about the change in the burden, the standard of proof, then [it is] probably 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.’” Thus, the message to men is: be extra careful to avoid any ambiguous situation that might lead to a rape charge with disastrous consequences. That doesn’t seem like much of an improvement over the bad old days when a woman’s life could be ruined by a shadow cast on her sexual reputation – except that the shoe is now on the other foot.
Cathy Young is a Contributing Editor at Reason magazine.