Sexual Assault and the Benefit of the Doubt

Dan Subotnik

Issued under the authority of Title IX, which is designed to further sex equality, the U.S. Department of Education’s April 2011 “Dear Colleague” Letter (DCL) coerced American colleges and universities into adopting specified procedures for use in sexual assault cases. The withdrawal of the DCL last year under the Trump Administration and the resulting protests from feminists and campus activists invite a fresh look at how sexual assault claims should be understood. Of particular interest in this space is, how should women best be “heard”? Can the university become a “safe space” for women?

That a man (and a 76-year-old one at that) is weighing in on issues of special concern to young women should not present a problem for most people. Few can seriously profess that responsibility for debate in any area should be delimited by sex (or age). Men as fathers, brothers, uncles, and grandfathers of female college students have at least as much stake in campus safety as unrelated faculty and administrators. Moreover, not only do men have a stake as claimed perpetrators in the sexual assault debate, but their buy-in is necessary for regulatory resolutions.

Sexual assault complainants must, of course, be listened to, especially given the bodily violation involved in such assaults. Since little help can be expected from our slow moving, cumbrous criminal justice system, and since there is simply no place to hide from a sexual predator on a residential campus, the university must at least step up with deterrents. The narrower question then arises: should a sexual assault complainant enjoy the same kind of credibility as, say, someone claiming to be the victim of a robbery?1 Should she be believed as well as heard, as demanded by many feminists?2

This question points to an obvious difference in psychological underpinnings of the two wrongs. No one longs to be mugged. Sexual assault, by contrast, involves sex, which is often wanted by both parties. Would it not then be incongruous to evaluate claims of sexual assault and robbery the same way?

Enter Colorado Detective Stacy Galbraith, an experienced hand in sexual assault cases and a key player in a 2008 case that received national attention. Rapes, she reports, are unlike most other crimes in that the credibility of the victim is often on trial as much as the guilt of the accused. Her simple rule has been: listen and verify. “A lot of times people say, ‘Believe your victim, believe your victim.’ But I don’t think that that’s the right standpoint. I think it’s listen to your victim. And then corroborate or refute based on how things go.”3

In My Secret Garden, her 1973 best-selling 400-plus page study of women’s sexual fantasies, Nancy Friday begins an explanation of the need for scrutiny. In their mental lives, she reports, women are far from ladylike (not, she insists, that there is anything wrong with this). In a striking introduction, she tells readers that while a typical interviewee does not want to be “hurt or humiliated,” in the throes of desire she may well fantasize about rape. The imagined rapist, the “effective battering ram, neatly ‘makes’ her relax sufficiently to enjoy orgasm, and then allows her to return to earth, her Nice Girl, Good Daughter, self-intact.” (p. xix)

A score of similar stories appear in this compendium using imagery that, if repeated here, would not likely survive editorial review. I cite only two tempered ones, hoping that they will make the cut.

Speaking of her girlfriend’s brutish boyfriend, interlocutor Gail reports that “even though I know this is crazy, I have fantasies that he is trying to rape me—either in his car, my home, his home, or even in his own gas station. I become awfully excited at these thoughts.” (p. 152) Sadie elaborates on the fantastic “crime” scene: “I am being raped by one man or a group of men, while many of them watch the others ‘abuse’ me. My attackers are always very handsome—dark hair, muscular, sexually well-endowed—and brutal, in that they take what they want and the hell with what I want or … pretend to want.” (p. 154)

Friday is not suggesting that there is no real rape, only that women’s sex drive is more complicated than many feminists will accept. Pace Gloria Steinem, for whom Friday is “not a feminist.”

The swirl of Friday’s rape and related fantasies, as recounted by Gail and Sadie, suggests caution in accepting women’s reports of sexual assault at face value. After all, isn’t it possible that a woman’s vivid, sensuous fantasies, which Friday implies stems from sexual guilt, will affect her judgment? And might this not lead to unfounded and spurious complaints? Writing long before the #MeToo movement, Friday does not explore these legal ramifications, including the issue of fairness to college men.

One can reasonably speculate that Friday was gathering her testimonies before the full flowering of the sexual revolution and that there are other plausible psychological sources for rape fantasies, including a woman’s desire to be desired beyond control. Joan Horwath, law dean emerita, authority on gender and—most important here—an administrator in Title IX sexual misconduct enforcement proceedings at Michigan State University, aligns herself with Friday by making the connection between sexual fantasy and assault complaints. While a strong advocate for women, Horwath recently acknowledged her surprise at finding “seemingly bottomless pits of shame about sexuality” in assault case files.4 One would expect guilt to turn into shame. Horwath’s Title IX work indicates that “many highly accomplished women students suffer from sexual identities that are painfully constrained [and] fearful.”5

Elaborating, Horwath reports that as a result of feeling that sex is owed to their pursuers, due to the prevalence of today’s free-wheeling campus hook-up culture, a number of women “experience very little control or autonomy over their own sexuality [and t]his can lead to the enforcement regime being activated to vindicate honor, provide safety from a third party [i.e., boyfriend], reinforce identities of sexual innocence, protect against jealousy, or protect young women from falling from someone’s grace. It can be a safety net to catch someone from falling from ‘good’ to ‘slut.’”6 While sexual shame can easily lead to underreporting of assault, Horwath concludes, some women, contrariwise, may “have complicated pressures to exaggerate the harm that they suffered, substitute certainty for uncertainty about exactly what happened, or pursue serious penalties for conduct that may not be considered serious to others. Unpleasant and unwelcome as this reality may be, we should recognize it.”7

How can pressure-induced complainant exaggeration be recognized? Presumably, though Horwath does not say so explicitly, by recognizing that justice for men and justice for women are not mutually exclusive. While true sexual assault needs to be punished, complainants need to be better interrogated, a conclusion consistent not only with the cautious probity recommended by Detective Galbraith, but also with a number of judicial findings that universities have been too hasty in administering sanctions against accused men.8

Treating complaints quasi-judicially will, to be sure, discourage some victims from coming forward; after suffering a trauma of sexual assault, a woman might be reluctant to be confronted by her assailant, relive the experience, and have her credibility assailed. But assuming Horwath is right, there would seem to be no alternative. Achieving justice for one’s self always requires sticking one’s neck out. And given the havoc that charges of sexual assault can wreak on the lives of those accused, the emotional risks for female complainants of a quasi-judicial proceeding may be a necessary cost of achieving a higher degree of justice.

While conceding in a recent interview that too many men act badly, Ruth Bader Ginsburg insisted that accused men have the right to defend themselves against charges of sexual assault—“everyone has that right.”9 This suggests that Ginsburg might well suspect that women are being believed too much. For if Ginsburg really thinks that women are to be a priori believed, why should she have bothered herself to uphold men’s rights to defend themselves?

Beyond investigating claims and disciplining those found guilty, what can universities do to discourage sexual assault without compromising women’s autonomy? Unfortunately, not much. They can yet again, and in loco parentis, warn women of the dangers of drinking and of being around others who do. Seventy-eight percent of sexual misconduct involves consumption of liquor.10 Additionally, they can warn women against entering men’s dorm rooms. Because many women will seek sex, such behavior can lead to an inference of consent and, because most sex takes place in private, no witnesses will be available to overcome that inference. Feminists, however, appear to oppose these initiatives because, when sexual assault does happen, universities might well end up “blaming the victim,” while women end up blaming themselves.11

Another problem with these admonitions is that they will have only minimal effect. Pandora’s box of sexuality has been flung open and there is no hope of closing it. Desire, at least as reported by Columbia professor Katherine Franke,

is not subject to cleaning up, to being purged of its nasty, messy, perilous dimensions, full of contradictions and the complexities of simultaneous longing and denial. It is precisely the proximity to danger, the lure of prohibition, the seamy side of shame that creates the heat that draws us toward our desires, and that makes desire and pleasure so resistant to rational explanation.12

There will be sex—and ambivalence. When asked about whether they regretted their latest “casual sex incident,” 34 percent of women answered yes (compared to 20 percent of men).13 This suggests that, under strong pressure from female activists, the university has oversold the protection it can offer to its female students and, concomitantly, undersold the need of women to exercise greater caution in matters of sex. For while the university may have succeeded in making the campus a comfortable place for students generally, the sexual domain—permeated as it is with violations of body and spirit, unwanted pregnancies, STDs, reputational risks, embarrassment, frustration, and plain old rejection—is inherently dangerous. There can be no safe space for sex on campus.

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