Presumed Innocent No More

Isaac N. Cohen

In this riveting and exhaustive volume, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, authors KC Johnson and Stuart Taylor Jr. quote a 1993 New York Times editorial sending up the Antioch College “Ask First” sexual misconduct policy, a pioneering attempt to regulate campus sexual relations. “Adolescence,” the editorial asserted, “particularly the college years, is a time for experimentation, and experimentation means making mistakes. No policy will ever be able to protect all young people from those awful mornings-after that are accompanied by the dreadful feeling: ‘Oh my God! What have I done?’” In the end, according to the editorial, “Adolescents will always make mistakes…[b]ut legislating kisses won’t save them from themselves.”1

In February 2015, with no knowledge of this 1993 editorial, one of us (Isaac), an undergraduate at Yale, made similar observations in the pages of the Yale Daily News:

“I didn’t want to do it, but I did.”

How many billions of times throughout history have people thought that[?]2

The op-ed went on to express grave doubt that rigid rules and administrative fiat could ever adequately deal with the potent mix of desire and doubt, in its infinitely various combinations and vicissitudes, that young people experience as they take their first forays into sexual intimacy. These ventures, which carry dangers both emotional and physical (including unwanted pregnancies), have long been channeled by “culture and custom.” But no official policy, Isaac concluded, can “legislate away the messy reality of life under the covers.”3 The editorial argued that awkward or even unpleasant sexual experiences should be distinguished from genuine cases of rape and sexual assault, which should be left to the criminal law.

How times have changed. The forgotten New York Times editorial published only two decades ago passed virtually without a ripple. In contrast, Isaac’s Yale Daily News editorial, and his subsequent speech at the Yale Political Union reiterating its claims, unleashed a firestorm of indignation. More than one person labeled him a “rape apologist.” One Facebook post, in a public forum called “Overheard Microaggressions at Yale,” called him out for “implicitly blam[ing] women for being raped. The insinuation being that women are cowards for not wanting to face their rapists in court.”4 To be sure, a few students had a more measured response. “Isaac was definitely not arguing that anyone deserves to be raped,” one of them wrote. “He was arguing that the standard of evidence for any conviction should be high, and that this extends to rape cases.”5

Yet judging by most responses to such pieces (Johnson and Taylor cite a few others), champions of liberal procedure, fairness, and due process are few in number on America’s most elite campuses. The charge of “rape apologist” echoes across the nation, leveled by a formidable coalition of campus activists, self-serving administrators, and credulous major media against anyone who dares to speak up for the accused. This team is backed up by judges, legislators, and bureaucrats who either refuse to intervene or actively encourage this mentality. The result is a litany of injustice and harm inflicted on young college men, who are railroaded by a shadowy system that gives them no fair chance to defend themselves from nefarious accusations or to clear their name.

This is not a matter of a few innocent people accused without cause. As Johnson and Taylor document, the academy’s sexual assault procedures constitute a comprehensive assault on the civil liberties and principles of fundamental fairness that sit at the core of our Anglo-American patrimony. If the authors’ accounts are to be believed, this onslaught is ongoing, fueled by an entrenched, self-interested bureaucracy that has burgeoned to deal with the “crisis.” The problem, as feminists like to say, is “systemic.”

The Attack Begins

It began in 2011, when the U.S. Department of Education expanded Title IX, a federal statute barring sex discrimination in education, to impose on universities receiving federal funds the requirement of policing “sexual misconduct.” Although the concept was only vaguely defined, the methods and apparatus colleges were required to employ were prescribed by a series of guidelines tilted decisively toward “victims”—that is, the women, and it is usually women, alleging sexual abuse. The guidelines imposed limits on the questioning or cross-examination of complaining students, restrictions on the participation of counsel, and the mandatory use of the “preponderance of the evidence” standard of proof customary in civil cases. Much of Campus Rape Frenzy is taken up with examples of young men caught in a vortex of questionable allegations, sloppy investigations, arbitrary and inadequate procedures, and penalties with life-changing consequences.

The scenarios that trigger this sequence, related by the authors in excruciating, highly personal detail, have a depressing, stylized sameness. Students who have just met or know each other casually get drunk or high and find themselves engaging in intimacies ranging from kissing to oral sex to intercourse. These escapades are frequently surrounded by a flurry of friendly or flirtatious texts, communicated in the arch, demotic, profanity-laced vernacular favored by twenty-something students. The parties involved usually meet up briefly and then part ways, sometimes after a night together, sometimes even more quickly. Gossip may follow and spread, resulting in awkwardness or embarrassment, especially when, as seems common, one participant is cheating on a regular partner. For the woman, distress, second thoughts, and feelings of victimization soon follow. What is striking about the incidents Johnson and Taylor relate is that, apart from those involving (undeniably illegal) sex with unconscious women, almost all of the female accusers appear to be voluntary or even eager participants, and and none is the target of threats of violence or actual physical force.

The result of many of these situations is a complaint of sexual misconduct filed with university authorities. The authors’ stories reveal that this can occur after a considerable lapse of time, sometimes many months after the incident. Egged on by friends, a campus advisor, or a counselor from the myriad offices designed to help undergraduates manage their personal lives, college women come to see themselves as victims of a pervasive “rape culture” and of an endless supply of callous, predatory males.

The accusations once made, the accused enters a labyrinth constructed and overseen by a cadre of university-appointed administrators, who act as prosecutor, legislator, judge, and jury. A Title IX officer, typically drawn from the ranks of activists steeped in rape culture rhetoric and “the woman is always right” ideology, “investigates” the charges, drafts a report, and makes recommendations on disposition and penalty. These recommendations are hastily rubber-stamped, or at least deferred to, by campus courts, panels, and tribunals composed of inexperienced and harried academics and bureaucrats.

Opportunities to appeal or obtain careful scrutiny of the record are few or none. The proceedings are shrouded in secrecy, under the guise of “privacy” and “confidentiality,” leaving the accused little opportunity to correct even egregious factual errors resulting from slapdash investigations and glaring sins of omission. According to Johnson and Taylor’s accounts, college investigators routinely fail to interview potentially exonerating witnesses or include materials, most notably texts and other exchanges between the parties, that cast fatal doubt on the accuser’s story. More often than not, these campus “investigations” resemble star-chamber sessions.

Given the watering down of procedural protections, it is not surprising that false findings, injustice, and abuses are rife. Johnson and Taylor document incident after incident resulting in young men being expelled, sanctioned, or declared guilty of sexual offenses of which they are either demonstrably innocent or that no one can be even reasonably certain they committed. The authors describe how male students and their families have fought back by filing appeals within the campus system, or by initiating lawsuits accusing universities of basic due process violations or of flouting the underlying Title IX law.

At least one court has found that withholding due process from accused male students amounts to sex discrimination under that very law. But judges seldom second-guess campus procedures and findings, on the ground that private institutions are entitled to regulate campus life—a position that is increasingly strained in light of the “Dear Colleague” letters threatening to withdraw funds from schools that refuse to comply with the government’s pro-“victim” procedural recommendations.6 Not everyone in the academy has gone quietly, however. Law professors at Harvard and the University of Pennsylvania have signed letters questioning the standards set by the universities for student conduct and the procedures used to adjudicate accusations.7 Unfortunately, these letters have so far had a negligible effect on how universities actually conduct themselves.

Presumption of Guilt

Why have colleges around the country become so oblivious to and contemptuous of the fundamental safeguards of the rights of the accused? The answer begins with the most destructive distortion of campus Title IX procedures: the wholesale reversal of the presumption of innocence at the core of our criminal justice system. The reversal is fueled by a feminist narrative: that sexual assault is common (and especially prevalent on campus), that false or distorted allegations are vanishingly rare, and that women’s claims of rape and sexual abuse are routinely trivialized or dismissed as part of a longstanding “rape culture” that prevails in contemporary Western societies. Influenced by this narrative, a burgeoning number of campus sexual assault “specialists” insist that giving accusers the benefit of the doubt, to the point of unquestioning credence, is necessary to protect and defend women from a system stacked against them. Assuming that the accused is innocent and putting the alleged victim to proof are tantamount to calling the accuser a “liar,” which is just another form of sex discrimination.

Although an “accuser is always right” mentality would, perforce, issue in immediate punishment for any accused man, that absurd result has transmogrified into an attempt to “level the playing field” by embracing the “preponderance of the evidence” standard of proof, instead of other more stringent tests, including the heightened “clear and convincing evidence” requirement applied in some civil proceedings or the “beyond a reasonable doubt” standard embodied in criminal law. Institutionalizing the more relaxed preponderance standard, activists argue, gives both parties an equal shot at being proven “right.”

These arguments get the presumption of innocence all wrong. To adopt the presumption is not to brand the accuser a “liar,” but rather to acknowledge some hard realities about the positions of accuser and accused and the different consequences of error for each. Because the criminal law inflicts the loss of freedom, or far worse, on those held to commit egregious wrongs, our legal system has long regarded being convicted falsely and punished wrongly as a far greater evil than leaving an injustice uncorrected. Hence Blackstone’s famous formulation, applied not just to rape but to all crimes: “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.”8

The presumption of innocence also acknowledges that talk is cheap, but proof is expensive. The tasks of proving one’s own allegations or refuting an opponent’s are both difficult and equally fraught with error. And the risk of an incorrect determination—and of punishing the innocent—looms even larger for rape than for other serious crimes. Intimate encounters frequently have no witnesses and, as elaborated more fully below, allegations of sexual assault turn critically on the alleged victim’s state of mind, which determines the all-important question of consent. Late in the book Johnson and Taylor quote a remark by the influential English jurist Sir Matthew Hale: Rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”9 Uttered in the seventeenth century, that truth is no less valid today.

This disregard for the presumption of innocence is compounded by campus bureaucrats’ habit of calling the accuser a “victim.” As one brave judge stated in his decision in a case coming from Brandeis University:

Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.10

In defending against the abuse of the language inherent in the “victim” designation before the fact, this judge is a voice crying in the wilderness.

Activists customarily answer these points by denying the parallels between the criminal law and campus adjudications. University officials, without the power to imprison or fine, are simply trying to balance the interests of all students. But the inherent asymmetry of accuser and accused applies as much to campus sexual assault allegations as to accusations of rape in criminal courts. And this is not the only reason campus Title IX tribunals should retain strict procedures and a presumption of innocence. There is also a pronounced mismatch between alleged offenders and the powerful academic institutions that seek to punish them, similar to the imbalance between individual and state that has decisively shaped the criminal law. It has long been understood that individuals need extra protection from the full force of the government that is brought to bear via state prosecutions of alleged wrongdoing. As Johnson and Taylor correctly note, in their ability to confer or withhold valuable benefits, American universities have immense authority over students’ lives and futures. The customary sanctions of expulsion, suspension, and “being marked for life as a sexual predator” amount to a form of capital punishment in the academic world with dramatic, lasting consequences for the mental health, lives, and careers of accused students. And once branded a scoundrel, sexual miscreant, or worse, such students and their families have little recourse against a Yale or Harvard’s cultural and institutional might. It is a testament to this imbalance that only affluent students appear to have the wherewithal to fight back against unjust treatment by suing universities. Students of ordinary means cannot afford such recourse.11

The Devil Is in the Data

Private colleges and universities today are not just power centers; they are practically arms of the state. They depend upon myriad government grants and scholarships, and are buoyed by generous subsidies and tax exemptions. As producers of an elite leadership class, they have become quasi-official bastions of social authority. In their capacity as centers of thought and learning, they exert extraordinary influence over norms and assumptions, with far-reaching consequences for the country’s laws and culture. Campus activists, faculty included, know this all too well. They recognize that the ivory tower is the ideal platform from which to champion their cause.

One way in which “rape culture” true believers have abused their platform is through the misuse and mangling of data. They claim rape and sexual assault have reached “epidemic” proportions, doing untold damage to female students nationwide. But there is no such epidemic. Activists have peddled false numbers on the incidence of sexual assault and rape, and inflated them by stretching the concept of sexual assault to include even verbal communication.

As with accusations in individual cases, the numbers are easy to generate, but hard to refute. Johnson and Taylor do the arduous work of debunking the dubious statistics that are the basis for the “epidemic” claim. The “one-in-five” figure tossed around with startling abandon by individuals as prominent as former president Barack Obama is predicated on surveys with low response rates (thus self-selecting, since non-“victims” may be less likely to participate) that use sweeping, questionable definitions of sexual assault. Counted as “sexual assault” or “sexual misconduct” in one large Association of American Universities survey, Johnson and Taylor note, are affirmative answers to such questions as: “Have you experienced ‘forced kissing’? Unwanted sexual ‘touching,’ which might include attempted close dancing [“grinding”] while fully clothed? ‘Promised rewards’ for sex? Threats to ‘share damaging information about you’ with friends?”12

And indeed, students are not infrequently disciplined for conduct that meets these expansive descriptions. When one student at Brown was found guilty of “manipulating” his accuser into having sexual relations with him, U.S. District Court Judge William Smith, in an eighty-four-page opinion overturning Brown’s decision, observed that under such a standard it could be sexual assault for a man to seduce a woman with “the old school use of presents and flattery.”13

Although some of the conduct covered by these surveys may not meet high standards of honor, it is not symptomatic of a rape and sexual assault epidemic. The most reliable data, tabulated in Bureau of Justice Statistics criminal victimization surveys, indicate that the reported rate of rape and sexual assault for college-age individuals currently stands at around six or seven per thousand per year.14 The rate is actually lower for students than for non-students, and has been declining (along with most other crimes, until the reported spikes of 2015 and 2016) since the 1990s. One sexual assault is too many, but this figure is nowhere near 20 percent.

Nor do these examples cover the gamut of activists’ distortion of facts. Johnson and Taylor comprehensively discredit the work of David Lisak, a psychologist commonly cited by Title IX officers and in “training” materials disseminated throughout the campus tribunal system. The authors show how Lisak’s key theses—that “a small number of serial predators commit 90 percent of campus rapes” and that the true rate of false rape claims “converge[s] around 2–8 percent”—are unsupported by the best available evidence.15

Such statistics, all but pulled out of thin air, and similar assertions uttered by senators and congressmen, police officers and campus investigator-adjudicators, activists and journalists, litter the pages of Campus Rape Frenzy. Most disturbing are the baseless claims being disseminated by the media and other outlets that have succumbed to, or fed, this frenzy. In 2013, in one high-profile example, Dylan Matthews, then at the Washington Post and now at Vox, published a graphic indicating that only two out of every thousand rape accusations are false.16 That rate is even smaller than the one put forward by Lisak. Today that post, still online, contains an “update” directing readers to an article by Amanda Marcotte, who once described defenders of the falsely accused Duke lacrosse players as “rape-loving scum.” She, in turn, asserts—with no credible basis—that even the two in one thousand figure actually overstates the true number of false allegations.17 Such claims are rarely substantiated, much less retracted. They have, however, been endlessly repeated.

A Way Out?

The sociocultural clout of academe has led to one curious development, noticed in passing but not further explored in the book. Johnson and Taylor endorse the Safe Campus Act, proposed federal legislation that would prohibit universities from disciplining students for sexual assault until legal officials have conducted a parallel criminal investigation. The implication of this endorsement is clear: colleges should ideally stick to what they know—plagiarism, basically—and abandon, or be forced to abandon, the “sexual misconduct” business altogether.

Is this the way out of the “campus rape” quagmire? Johnson and Taylor suggest why some might reject this strategy. They quote Thomas Costello, an Ohio State professor who, in response to a talk given by Johnson, remarked that “young men on campus” don’t know what it means to “be a man.” Johnson and Taylor deride this statement for its implication that college professors—“of all people”—are “qualified to teach fellow adults how to ‘be a man.’” In a nod to the zeitgeist, they add that most people would find “bizarre” the parallel notion that “young women on campus” don’t know what it means to “be a woman.”18

But what “most people” find off-putting today was once widely accepted. Universities long regarded themselves as tasked not only with filling their students’ brains with facts, but also with providing a moral education—inculcating honorable and upright character and promoting civility in interactions public and private. Though the reality of campus life often fell short, these aspirations were accepted by classical liberals and conservatives alike.

Which is why asking whether universities should be permitted to discipline their students for sexual infractions is such a vexed question. There is an air of déjà vu about it. Enforcing a code of sexual behavior or, for that matter, limits on speech—however defined, misguided or not—represents a resurgence of in loco parentis, except that what used to come from cultural preservationists now comes from the authoritarian Left. Today the moral vision imposed on young adults by college-as-parent, rather than upholding the traditional restraints rising from longstanding cultural strictures, embodies a libertine, faux egalitarian, and “pro-sex” ethos defined by mere (“affirmative”) consent and administered by “social justice” bureaucrats.

Some social conservatives hope to change all of that. Although insisting that the prevalence of campus sexual assault is overstated, and deploring the slipshod methods used to deal with it, they nonetheless believe that something has gone terribly wrong. The messy mix of impersonal intimacy and inebriation that characterizes the typical sexual assault case is rooted, they argue, in the post-sixties deconstruction of healthy, thoughtful, mutually respectful relations between the sexes. But even if that is the problem, what is the solution? Can conservatives hope to exploit the campus panic to breathe new life into traditional gender norms or to return to tried and true strictures such as gender-segregated housing and parietals?

This quaint gambit will never work. Conservatives have neither the numbers nor the cultural sway to conscript the elaborate Title IX apparatus—investigative, adjudicative, and punitive—toward a revival of past restrictions. The typical university, with its burgeoning, self-serving bureaucracy in thrall to radical feminists, is nearly a lost cause. Given this reality, the new in loco parentis is destined to be just another Trojan horse for progressive priorities. Better to cut off funding, rescind mandates, and repeal or revise what little statutory basis the campus sexual assault industry can claim. Ideally, the goal would be to prohibit universities from punishing sexual misconduct and leave investigating and prosecuting sexual assault to the law, which has more experience, more clearly defined violations, and stricter rules of procedure.

The Verdict

Although The Campus Rape Frenzy is a welcome corrective to nearly three decades of academic, journalistic, and bureaucratic malfeasance, it is not without flaws. The book would have benefited from a more sustained, in-depth defense of due process. Instead, Johnson and Taylor present a parade of horribles: dozens of tales of young men whose lives and reputations have been ruined by campus witch hunts. This modus operandi is effective, but tends to leave the principles behind due process—its historical basis and philosophical underpinnings—unexplained. The book does hone in on the critical point that, regardless of methods or labels, and leaving aside the problem of vague, over-broad infractions, the law’s protocols exist in service of getting at the truth. In other words, “the fundamental question remains the same: did student x engage in the alleged sexual aggression against student y?”19 Overall, however, the authors’ treatment of the case for robust due process protections, and their relation to the search for truth and justice, could have been more extended and methodical. This is unfortunate, because many students, administrators, and even professors are ignorant of the history, significance, and purpose of the basic civil liberties that have been developed to protect the accused from oppression by the state (and its cognate institutions).

One defense lawyer the authors briefly quote found himself explaining to a panel of Sixth Circuit judges that due process protections “did not spring out of the earth” to be “imposed on parties for an arbitrary reason.”20 Campus guardians of female virtue need the same reminder. The result of their ignorance is a failure to appreciate the hard-won principles of guilt and innocence that have emerged through centuries of political struggle and legal development. Instead, these have been swept away in a storm of campus zealotry, replaced by a dysfunctional culture that fosters sexual recklessness and simultaneously encourages women to feel traumatized at men’s expense.

Another shortcoming of this book is the failure to say enough about the abuses inherent in the vague standards for sexual misconduct that are embodied in Title IX guidelines and campus codes. In general, too little attention has been paid to how universities define and determine which acts or actions potentially trigger disciplinary sanctions. Most disturbing of all is that universities are, and regard themselves as, unconstrained by doctrines, based on centuries of experience, that our legal system has hammered out to deal with this difficult and vexed area.

In fact, Anglo-American rape law incorporates important substantive limits that are essential to fairness and accuracy. In the service of the rule of law and values such as consistency and fair notice, criminal law has long struggled to define consent and coercion in objective terms ordinary people can understand, but that are also fair to actual or potential victims. Most jurisdictions also recognize that a man can make a reasonable and honest mistake, and infer a woman’s consent where, subjectively, there may be none. This is especially so recently, when the law has evolved—humanely, many insist—to eliminate the requirements of overt force (by the perpetrator) and resistance (by the victim). Situations perceived as threatening can suffice. But that opens the door to misperceptions of all kinds: circumstances that a woman finds frightening or coercive may not appear so to her partner. As a safety valve, many jurisdictions have transformed what could be a subjective standard into an objective one: the accused has a defense if he can persuade a jury that his perception of the accuser’s consent was reasonable under the circumstances.

None of these principles has been formally incorporated into Title IX-based standards, either by universities or the government. Campus codes generally define what is forbidden in the most ambiguous, muzzy, and general terms, and one looks far and wide for any objective guidance on the criteria for consent, or lack thereof, that universities apply in their actual determinations. Administrators are thus at liberty to make a free-form and entirely impressionistic determination of whether the rules were violated. It all seems to come down to whether a few university administrators think the accuser’s consent was somehow compromised. Because we are not privy to all cases, we don’t know the odds. But from where Johnson and Taylor sit, the odds look arbitrary.

The scenarios presented with disconcerting frequency in this book leave the reader with the overwhelming impression that, at least on diagnosis if not for cure, conservative critics of campus mores are right: the campus rape frenzy is the outgrowth of a sexual culture gone off the rails, embodied in a nasty ritual, repeated endlessly, of too much drinking combined with too much “hooking up.” The two elements are not unrelated. As Heather Mac Donald has trenchantly observed, most women do not come easily to impersonal sexual encounters.21 To engage in that habit, they need a hefty dose of emotional analgesic. Although feminists regularly deplore the elevation of male standards as the touchstone for all things, current sexual practices, which they condone and even encourage, exemplify this pattern. A perverse ethos has been sold to our young: there is only one sexuality, and that sexuality is male. The untruth of that statement is being laid bare. Yet if conservatives have the diagnosis, we are all still searching for a cure. It can’t just be doubling down on the disease.

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