Courts

Guilty Until Proven Innocent

How the government encourages kangaroo courts for sex crimes on campus

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One evening in February 2012, Vassar College students Xialou "Peter" Yu and Mary Claire Walker, both members of the school's rowing team, had a few drinks at a team gathering and left together as the party wound down. After a make-out session at a campus nightspot, they went to Yu's dorm room, where, by his account, they had sex that was not only consensual but mainly initiated by Walker, who reassured her inexperienced partner that she knew what to do. At some point, Yu's roommate walked in on them; after he was gone, Yu says, Walker decided she wanted to stop, telling him it was too soon after her breakup with her previous boyfriend. She got dressed and left.

The next day, according to documents in an unusual complaint that Yu filed against Vassar last June, Yu's resident adviser told him some students had seen him and the young woman on their way to the dorm. They had been so concerned by Walker's apparently inebriated state that they called campus security. Alarmed, Yu contacted Walker on Facebook to make sure everything was all right. She replied that she had had a "wonderful time" and that he had done "nothing wrong"-indeed, that she was sorry for having "led [him] on" when she wasn't ready for a relationship. A month later Walker messaged Yu herself, again apologizing for the incident and expressing hope that it would not affect their friendship. There were more exchanges during the next months, with Walker at one point inviting Yu to dinner at her place. (In a response to Yu's complaint in October, attorneys for Vassar acknowledged most of these facts but asserted that Walker had been too intoxicated to consent to sex and had been "in denial," scared, and in shock when she wrote the messages.)

Last February, one year after the encounter, the other shoe dropped: Yu was informed that Walker had filed charges of "nonconsensual sexual contact" against him through the college disciplinary system. Two and a half weeks later, a hearing was held before a panel of three faculty members. Yu was not allowed an attorney; his request to call his roommate and Walker's roommate as witnesses was denied after the campus "gender equity compliance investigator" said that the roommates had emailed him but had "nothing useful" to offer. While the records from the hearing are sealed, Yu claims his attempts to cross-examine his accuser were repeatedly stymied. Many of his questions (including ones about Walker's friendly messages, which she had earlier told the investigator she sent out of "fear") were barred as "irrelevant"; he says that when he was allowed to question Walker, she would start crying and give evasive or nonresponsive answers. Yu was found guilty and summarily expelled from Vassar.

New Rules for Campus Sex

Yu, a U.S.-educated Chinese citizen, is now going after the Poughkeepsie, New York, school in federal court, claiming not only wrongful expulsion and irreparable personal damage but sex discrimination. His complaint argues that he was the victim of a campus judicial system that in practice presumes males accused of sexual misconduct are guilty. His is one of three such lawsuits filed last summer. St. Joseph's University in Philadelphia is being sued by an expelled student, New York state resident Brian Harris, who likewise claims he was railroaded by a gender-biased campus kangaroo court. And in August college basketball player Dez Wells sued Ohio's Xavier University for expelling him in the summer of 2012 based on a rape charge that the county prosecutor publicly denounced as false.

While the lawsuits target private colleges, they also implicate public policy. That was especially true in Wells' case: When he was accused, Xavier was under scrutiny by the federal government for its allegedly poor response to three prior sexual assault complaints, and his attorney says he was the "sacrificial lamb" to appease the U.S. Department of Education. In the other two cases, there was no such direct pressure, but the charges were adjudicated under a complainant-friendly standard that the Obama administration has been aggressively pushing on academic institutions.

In April 2011, the Department of Education's Office of Civil Rights sent a letter to college and university presidents laying out guidelines for handling reports of sexual assault and harassment. One key recommendation was that such complaints should be evaluated based on a "preponderance of the evidence"-the lowest standard of proof used in civil claims. (In lay terms, it means that the total weight of the believable evidence tips at least slightly in the claimant's favor.) Traditionally, the standard for finding a student guilty of misconduct of any kind has been "clear and convincing evidence"-less stringent than "beyond a reasonable doubt," but still a very strong probability of guilt.

Last May the government reiterated its commitment to the "preponderance" standard in a joint Department of Justice/Department of Education letter to the University of Montana following a review of that school's response to sexual offenses. The letter was explicitly intended as a "blueprint" for all colleges and universities; noncompliant schools risk losing federal funds, including student aid eligibility. Meanwhile, the Department of Education also has launched civil rights investigations into complaints by several college women who say they were sexually assaulted by fellow students, then revictimized by school authorities when their assailants either went unpunished or received a slap on the wrist. The schools under scrutiny include the University of Southern California, the University of North Carolina, and the University of Colorado at Boulder.

'Rape Culture'

The federal war on campus rape is unfolding amid a revival of what Katie Roiphe, in her landmark 1994 book The Morning After: Sex, Fear and Feminism on Campus, dubbed "rape-crisis feminism"-a loosely defined ideology that views sexual violence as the cornerstone of male oppression of women, expands the definition of rape to include a wide range of sexual acts involving no physical force or threat, and elevates the truth of women's claims of sexual victimization to nearly untouchable status. This brand of feminism seemed in retreat a few years ago, particularly after a hoax at Duke University drew attention to the danger of presuming guilt. (In 2007, the alleged rape of a stripper by three Duke lacrosse players sparked local and national outrage-until the case was dismissed and the young men declared innocent.) Yet in 2013, the concept made a strong comeback with a sexual assault case that gained national visibility in January and went to trial in March. This one was in Steubenville, Ohio.

The facts in Steubenville were ugly enough. A 16-year-old girl who got very drunk at an end-of-the-summer high school party was repeatedly sexually assaulted while unconscious or barely conscious. One boy, 17-year-old Trent Mays, penetrated her with his fingers, tried to get her to perform oral sex, and essentially used her as a masturbation aid; another, Ma'lik Richmond, briefly participated in the abuse. Three other teenagers witnessed at least some of these acts (which took place in a car and in the basement of a home after the girl left the party with the boys), taking photos and a video. The next day, Mays bragged about his exploits and mocked the girl in text messages to friends, to whom he also sent her nude photo. When Mays and Richmond, both star players on the Steubenville High School football team, were arrested and charged with rape a few days later, many residents in the football-worshiping small town sympathized with the boys and were inclined to assume that the girl-an out-of-town private school student-was lying to cover up her misbehavior.

This sordid saga arguably shone a spotlight on the dark underside of small-town "football culture," which can breed a sense of entitlement and impunity in popular athletes. Yet the national press coverage, fueled by wild rumors of unspeakable brutalities (the girl was said to have been drugged, kidnapped, urinated on, and gang-raped for hours) and of an official cover-up, turned into a far more sweeping indictment of America's "rape culture"-a term that suddenly migrated from the fringes of feminist rhetoric into mainstream discourse.

Like many radical theories, the idea of rape culture contains plausible elements of truth: Some traditional gender arrangements have indeed encouraged cavalier or even tacitly accepting attitudes toward certain kinds of sexual violence. For much of history women have been treated to varying degrees as men's sexual property, with rape condoned if not legitimized in some circumstances: for example, in marriage (including forced marriage), or toward women who transgressed norms of feminine propriety. Even in the United States, as recently as 40 years ago, juries could be instructed to consider "unchaste character"-such as being single and on birth control-as a strike against an accuser's credibility, and courts often treated submission to overt physical intimidation as consent (at least in acquaintance-rape situations). And there is some basis for the argument that the conventional script of male pursuit and feminine coyness-with "no" routinely taken to mean "try harder"-can sometimes blur the lines between consent and coercion.

But this history is only one part of a complex mix of cultural attitudes-a mix that has long included genuine societal abhorrence of rape as a violation of female personhood. It is a measure of this abhorrence that when feminists in the 1970s challenged the unjust treatment of rape victims, the reforms they advocated-such as dropping resistance requirements that did not apply to other violent crimes, or barring the use of a woman's sexual history to discredit her-were soon enacted with overwhelming support. Moreover, the social response to sex offenses has been complicated by many factors besides sexism, from a general human tendency to sweep sordid matters under the rug to the difficulty of proving crimes that occur in intimate settings; these factors have affected male victims, too. Feminist theory offers no convincing explanation for why a homophobic patriarchy would also fail to protect boys from adult male sexual predators.

And yet the "rape culture" trope has gained such sway that even a New Yorker writer highly critical of activist zealotry over Steubenville offered a disclaimer to defend the term. In an article in the magazine's August issue, Ariel Levy cited a 2011 Centers for Disease Control and Prevention (CDC) report stating that one in five American women are victims of rape or attempted rape and a recent Pentagon survey finding that one in four active-duty service members have been sexually assaulted. The problem, she concluded, could not be so pervasive unless there was a rape-enabling culture treating sex as "something men get-and take" from women.

Defining Rape

But what do these numbers mean? The Pentagon poll defined sexual assault broadly enough to include a slap on the behind-and half of its self-reported victims were men. The CDC study treats all sex under the influence of alcohol or drugs as rape, with no distinction between unconsciousness and impaired judgment. Even the CDC's definition of rape by force could include such transgressions as unwanted penetration with a finger (no matter how brief) during an otherwise consensual make-out session. The respondents were never asked if they thought they were assaulted; in a comparable survey, the federally sponsored 2007 Campus Sexual Assault study, two-thirds of the women classified as victims of drug- or alcohol-induced rape and 37 percent of those counted as forcibly raped did not consider the event to be a crime. (And these were college women in the age of mandatory campus date-rape awareness programs.) Notably, when CDC survey respondents were asked about victimization during the previous 12 months, men reported being "forced to penetrate someone"-an act classified as sexual violence other than rape-at the same rate that women reported forced penetration. Either "rape culture" goes both ways, and women also sexually assault their male partners with alarming frequency, or the CDC definition of sexual violence needs rethinking.

Other claims about America's alleged rape-supportive misogyny typically rely on falsified or out-of-context pseudo-facts. Thus, on the website of The Nation, Jessica Valenti states that "we live in a country where politicians call rape a 'gift from God'â€Š"-not only distorting a comment made by Indiana Republican Richard Mourdock during his 2012 run for the U.S. Senate, but neglecting to mention that the gaffe almost certainly ensured his defeat in a Republican stronghold. (What Mourdock said was that life was a "gift from God" even when it began "in that horrible situation of rape.") In The Huffington Post, writer Soraya Chemaly's list of "facts about rape" includes the claim that 31 states allow rapists who impregnate their victims to sue for child custody or visitation. Actually, these states simply don't have laws explicitly barring such suits, mainly because it is presumed to be a non-issue. So far, the only known case of this kind involves a Massachusetts man convicted of statutory rape who sued for visitation with his daughter after a family court ordered him to pay child support.

The Steubenville story, with its evidence of boys behaving abominably documented by social media, came to be seen as Exhibit A for the "rape culture." Never mind that it's quite a leap from the repulsive acts of a few drunk adolescents to the notion that our culture normalizes such acts; or that it's hardly unusual for teenagers to flaunt illegal and socially unacceptable behavior; or that the morning-after text messages in the case made it clear that a number of boys were well aware that something very wrong was done to "Jane Doe" and that legal trouble could follow.

After Mays and Richmond were convicted in juvenile court, the media went into moral panic overdrive. In Time magazine, novelist Peter Smith scolded his fellow men for their failure to reject male solidarity and "say something" against rape-as if a male judge hadn't just "said something" by sending the perpetrators to jail. MSNBC talk show host Melissa Harris-Perry delivered an on-air apology to the victim for failing to make the world safe for her. Twitter threats to "Jane Doe" from two teenaged girls, one of them Richmond's cousin, were seized upon as more evidence of rape culture's pernicious sway. The barrage of threats to Steubenville residents who had been labeled pro-rapist, including the female prosecutor baselessly accused of a cover-up, went unnoticed until Levy's New Yorker article. Even CNN, a major promoter of the "rape culture" meme, got hit by friendly fire: Correspondent Poppy Harlow and host Candy Crowley were vilified as rape apologists for daring to voice some sympathy for the defendants-and, it was falsely claimed, failing to mention the harm to the victim.

Much of this reaction was well-intentioned. Yet in the end rape-culture feminism promotes not only a toxic view of relationships but a skewed and dangerous view of justice. Its key tenets: 1) Women almost never lie when they report a sex crime, and to doubt them is to perpetuate rape culture; 2) rape is any sexual act in which the woman feels violated-unless she suffers from false consciousness and needs to be educated about her violation; 3) rape includes situations in which the woman agrees to sex because of persistent advances, "emotional coercion," or intoxication-or because she doesn't have the nerve to say no; 4) no matter how willing the woman appears to be, it is the man's responsibility to ensure explicit consent-or he may be guilty of rape.

The inroads these ideas could make in the actual justice system have been limited by constitutional protections for the accused, including the presumption of innocence, a high standard of proof, and the right to confront the accusing witness. But colleges are almost perfect laboratories for feminist rape prosecutions, even if the penalty can be no worse than getting expelled.

Campus Kangaroo Courts

The campus is a place where sex happens a lot-including sex in random, often drunken encounters rife with potential for misunderstanding and regret. The Online College Social Life Survey, collected from nearly 25,000 students on 20 campuses from 2005 to 2011, found that women and men alike drink heavily when hooking up with a casual partner: an average of five alcoholic drinks for women, six for men. When you try to criminalize much of this confused and confusing sex, subjecting it to second-guessing by secretive quasi-judicial panels operating under arbitrary rules and influenced by the deference to feminist orthodoxy that prevails on many campuses, the results will not be pretty.

Complaints from all sides about the way colleges handle sexual assault reports raise the question: Why should an offense as serious as rape be "prosecuted" by a college, rather than turned over to the police? The answer is that the vast majority of these charges would be unlikely to survive the most basic legal scrutiny.

In at least one case currently under review by the Department of Education's Office of Civil Rights, the police reviewed and closed the woman's complaint. University of Colorado at Boulder sophomore Sarah Gilchriese says a male student, a fellow member of the school's Alpine Club, sexually assaulted her when they were drinking together. From media accounts, it is unclear whether Gilchriese accuses the man of using force or simply having sex with her when she was, by her own account, intoxicated but not "blackout drunk." Prosecutors at the Boulder District Attorney's Office declined to pursue the case, believing that they had little chance of obtaining a conviction.

But the university's Office of Student Conduct found the man guilty of "non-consensual intercourse" and punished him with an eight-month suspension. Gilchriese filed a grievance in response, complaining that the male student was allowed to finish the semester and stay on campus for four weeks after the hearing, and was scheduled to be allowed to return after his suspension even though she was still attending school. (She obtained a restraining order to keep him off campus.)

In other college cases that have made news, local authorities have gone so far as to proclaim the defendant's innocence. As mentioned earlier, that was true for Dez Wells, the basketball player expelled from Xavier University on a disciplinary charge of sexual assault. And in February 2010, University of North Dakota student Caleb Warner was convicted by a campus tribunal and banned from school for three years, just three months before the Grand Forks County District Court issued a warrant for his alleged victim's arrest for making a false police report, a charge that prompted her to leave the state. The sanctions against Warner were vacated in October 2011 after the Foundation for Individual Rights in Education (FIRE) brought national attention to his story.

The case of Landen Gambill is perhaps the best illustration of how skewed, misguided, and detrimental to justice the crusade against rape culture can be. Gambill, a University of North Carolina (UNC) at Chapel Hill student, became a cause cÃ©lÃ¨bre when the school tried to forbid her to speak publicly about her alleged assault on the grounds that it constituted harassment toward the male student cleared of the charge. The student Gambill accused was a former boyfriend whom she had started dating in high school before they both enrolled at UNC. She claims he repeatedly abused her, physically and sexually, over the course of the relationship. They broke up in their freshman year at the university; four months later, Gambill filed a complaint accusing her ex-boyfriend of rape. A five-person panel of students and faculty-two men and three women-found him not guilty except for a single charge of verbal harassment.

Gambill, who turned to activism after this experience, has expressed outrage not only at the acquittal but at the process itself. As an example of the "victim-blaming" that she says she had to endure, she cites this question from a jury member at the hearing: "Landen, as a woman, I know that if that had happened to me, I would've broken up with him the first time it happened. Will you explain to me why you didn't?" Gambill also says that her pre-college history of mental illness and attempted suicide was used to damage her credibility even though it was a result of the abusive relationship-and that, after the hearing, a meddling juror decided to give a written account of the alleged assaults to Gambill's parents.

But guess who else feels victimized by the university? Gambill's ex-boyfriend, who shared his side of the story (anonymously) with the student paper, The Daily Tar Heel. He was suspended immediately after the accusation and forced to undergo a psychological evaluation that he says included invasive, humiliating questions about his sexual activities with Gambill. Portions of this evaluation were apparently shared with his accuser at the hearing, in violation of confidentiality. After being cleared, the young man had to submit to additional evaluations before the university agreed to re-admit him, delaying his return to school by six months. He has had to adjust his class schedule to comply with an order from school officials to stay away from Gambill. The ordeal, the student told the paper, caused him to develop post-traumatic stress disorder.

Only Gambill and her ex-boyfriend know which one of them is the real victim-and maybe not even they do, given how past events are filtered through subjective perceptions. Yet from the perspective of the Department of Education, which is pursuing Gambill's civil rights complaint against the university, her grievance is the only one that counts.

Federal involvement is likely to exacerbate the pro-accuser bias on many college campuses. In addition to the lower standard of proof, the recent Department of Education/Department of Justice blueprint for colleges mandates training for administrators, faculty, and student jurors involved in handling of sexual assault complaints. In practice, the training often amounts to indoctrination in the "correct" view of sexual assault. In 2011 FIRE publicized Stanford University's reading materials for student jurors (mostly excerpted from the book, Why Does He Do That?: Inside the Minds of Angry and Controlling Men, by domestic violence specialist Lundy Bancroft). Among other things, students were advised that acting "logical and persuasive" in one's defense was typical of an abuser and that one should be "very, very cautious in accepting a man's claim that he has been wrongly accused" since "the great majority of allegationsâ€¦are substantially accurate."

In the midst of a moral panic, the rights of the accused-including the wrongly accused-count for little. In May The Daily Princetonian, Princeton University's student daily, ran an editorial urging the school to change its standard of proof in sexual assault cases from "clear and convincing evidence" to "preponderance of the evidence." Noting that "sexual assault is unique among cases requiring on-campus discipline" in its lack of corroborative evidence and its he said/she said nature, the editorial board concluded that the "clear and persuasive" standard might be appropriate for charges of theft, assault, or drug use, but it is "inappropriate in the case of sexual assault."

The wheel has come full circle: Forty years ago, feminists argued that rape should be treated the same as other crimes against persons. Today the progressive position appears to be that since rape is harder to prove than other crimes (particularly when it is defined so that it does not require physical coercion, threats of violence, or incapacitation), it should receive special treatment.

When schools try to mitigate absurdly broad redefinitions of sexual assault with a nuanced approach to crime and punishment, they are liable to find themselves accused of coddling rapists. At Yale, for instance, a student may be sanctioned if he (or she, theoretically) fails to obtain "clear and unambiguous consent to each activity at every stage of a sexual encounter." In August the university's report on its handling of sexual misconduct caused an outcry in the feminist and left-wing blogosphere with the revelation that, of six students found guilty of "non-consensual sex" since the start of 2013, one had been suspended for a year, one placed on probation, and four given a "written reprimand" and encouraged to seek counseling. Yale activists such as law student Alexandra Brodsky and feminist blogs such as Jezebel assailed the university for hiding rape behind euphemistic doublespeak and letting off rapists with a slap on the wrist.

In September, to clarify its policy, Yale released a memo with several hypothetical scenarios explaining what action would be taken. While some of the "non-consensual" situations involved forced sex, others read more like a parody. In one vignette, "Ansley" rebuffs "Devin"â€Š's attempt to take intimate activity to the next level, saying, "I'm not sure"-but makes no objection, except for "inch[ing] backward," when Devin tries again later. (Devin's penalty, according to the memo, would range from multi-semester suspension to expulsion.) In another, "Kai" starts to reciprocate oral sex without first getting a clear go-ahead from "Morgan" (which would evidently qualify for a reprimand). The activists' response to these absurd tales of woe was to complain that Yale was still treating sexual misconduct too leniently and to demand a policy, similar to the one recently enacted at Duke, making expulsion the presumptive penalty for such offenses.

While the immediate consequences of being found guilty by a campus tribunal are limited to academic or disciplinary sanctions, these cases are likely to have repercussions beyond the insular world of academe. A student's conviction of sexual assault, even in college judicial proceedings, goes on his college record and is thus apt to follow him to other schools and to be brought to the attention of prospective employers.

The consequences may go beyond the students themselves. The tendency to expand the definition of nonconsent to include ambiguous or fairly innocuous situations, and to hold rape accusations to a lower standard of proof, may "bleed out" from colleges into real life and the real justice system, especially if many law students absorb these ideas.

New Rules Needed

Women clearly have a particular vulnerability to sexual violence; while feminists have a tendency to exaggerate both women's fear of rape and men's sense of safety, there is a very real gender gap. This female fear is often invoked as a tragic consequence of rape culture and as proof of the urgent need to combat it.

But there is a paradox here. Women's fear of sexual violence is related almost entirely to the kind of attack-the proverbial stranger in a dark alley-that rape-culture ideologues tend to downplay as a stereotype and a distraction. (It is also relatively rare: Survey data indicate that a woman's lifetime chance of being raped by a stranger is around 2 percent.) No less ironic, the same ideologues who deplore women's lack of safety often scoff at safety precautions, insisting that we must "teach men not to rape" rather than teach women to avoid rape-as if there were a single crime that could be completely eradicated by "teaching" people not to commit it. (In October, Slate writer Emily Yoffe was excoriated as a rape apologist and a victim-blamer when she suggested that college women should avoid heavy drinking since there are sexual predators who specifically look for intoxicated women to exploit.)

In the end, the "rape culture" crusade is not so much about rape as it is about remaking sex. It stigmatizes assertive male sexuality and promotes a sexual norm in which every act must be negotiated in advance and undertaken with a completely rational, literally sober mind. In June a Kickstarter project to fund the publication of a dating guide for men was denounced as "rape-y" because preliminary excerpts advised men to "escalate" physical contact in an intimate situation without waiting for the woman's encouragement or advance approval-even though author Ken Hoinsky emphatically told his readers to back off at the woman's "no" and "try again at a later time if appropriate or cease entirely if she is absolutely not interested." After a backlash from feminist bloggers, Kickstarter scrapped the project and donated $25,000 to a sexual assault prevention organization. A few months later, the "rape culture" moral panic targeted Robin Thicke's hit song "Blurred Lines" (banned from several British university campuses) because of such lyrics as "I know you want it."

There is nothing wrong with challenging traditional rules of courtship or sexual norms. Many advocates of explicit consent insist they are trying to promote better communication and prevent hurtful misunderstandings. But it's one thing to make a persuasive case for more open communication about sex; it's another to make this a question of sexual violence, denigrating different views of sexuality as promoting "rape culture" and using the power of government to enforce one's preferred rules.

Since it's extremely unlikely that most college students will pause for a "May I?" before each intimate act, or stop having sex under the influence, the real outcome of the new campus policies will be to make virtually every sexually active male student vulnerable to a sexual offense charge if his partner retroactively reinterprets the experience as nonconsensual. Aside from the obvious unfairness to men, this is hardly a prescription for healthy interaction between men and women-or for basic respect for justice.

More lawsuits from men victimized by this warped notion of gender justice may, if successful, help restore balance. It is no exaggeration to say that this is one of the pressing civil rights issues of our time-one in which the federal civil rights watchdogs are on the wrong side.