Sex And Due Process On Campus

Here are some claims commonly made on the left about sexual assault: It’s chronically unreported and rarely fabricated, so we should always believe victims; consent and non-consent are always separated by a sharp line; and rapists always know exactly what they’re doing. Not only are these premises untrue, but they’re not even consistent with feminist ideas about how and why sexual assault happens. Education Secretary Betsy DeVos’s recent changes to Title IX sexual assault policy have, obviously, been a total disaster, but the left’s unwillingness to have an honest discussion about it has made us unable to respond. The Trump administration’s “reforms,” and an environment of heightened interest in sexual violence in general, should be a moment to refocus our discourse.

Sexual assault at colleges really became a cultural flashpoint after 2011, when the Obama administration published its “Dear Colleague” letter, a document that told schools to use certain procedures to investigate sexual harassment and assault if they wanted to remain in compliance with their obligation to prevent sex-based discrimination under Title IX. The guidelines seemed like a reasonable response to what had previously been the status quo, when colleges simply did not take sexual violence seriously as a Title IX violation. According to the letter, schools were now to judge assault and harassment cases using a “preponderance of the evidence” standard. Under this standard, the schools would find in favor of the accuser if it appeared “more likely than not” that an accused student was guilty. “Preponderance of the evidence” is a lower standard than the “beyond a reasonable doubt” standard that we associate with criminal trials, but it’s a standard commonly used in civil rights cases, and thus could be deemed appropriate for an internal disciplinary process at a college. Schools were also expected to meet basic requirements for due process, which meant conducting independent investigations, giving the accused access to the evidence against them, and, importantly, allowing both sides to appeal. Before then, it had been common for schools to allow the accused to appeal a judgment, but not the accuser, meaning that assault and harassment victims who objected to an adjudicator’s decision had no avenue to force the school to take a second look at their case.

Even if you agree that these guidelines are mostly fair on their face, which I do, it’s hard to escape the reality that the processes subsequently set up by schools under the new regime were often absurdly unfair. Around the same time that the “Dear Colleague” letter was issued, the Department of Education’s Office for Civil Rights had publicly announced that it was investigating dozens of colleges for mishandling sexual assault cases. Many of those schools then rushed to create procedures that were meant to comply with the law but that actually confused matters more because they didn’t treat sexual assault cases with the rigor that they deserve. There was often no separation between the individuals who investigated the accusations and the individuals who judged the cases, and Title IX officers—whose entire job is to ensure that colleges comply with Title IX standards, and thus have a professional stake in the way cases are decided—were often put in charge of investigations. Nancy Gertner, a Harvard Law School professor who supports the Obama-era guidance but has criticized its implementation, says that, “If the analogy is to civil rights cases, you would get a statement of the accusations, you have counsel, there is discovery where you find out what the nature of the accusations are, and there’s a neutral decision-maker. If you don’t have those things, then preponderance is essentially a very, very weak standard.”

Predictably, then, in September 2017, DeVos announced that she was withdrawing the “Dear Colleague” letter. It’s strange that some of the same liberal critics who have pointed out what was wrong with Title IX under the Obama administration have been so credulous in embracing DeVos’s reforms. “What promises to emerge from the new rulemaking process—which will generate mountains of public input—is more, rather than less, regulation and enforcement of schools’ obligations to all parties under Title IX,” Jeannie Suk Gersen declared in the New Yorker. But whatever the failings of the university systems that were produced under Obama-era guidance, DeVos’s public statements display no understanding of what made the earlier processes unfair. She has invited so-called “men’s rights activists” to provide feedback on Title IX, and much like men’s rights groups, the department’s own officials think most sexual assault accusations are fake. Top OCR official Candice Jackson told the New York Times last summer that “the accusations—90 percent of them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”

Jackson is not quite wrong—many sexual assault cases do take place in intimate partner contexts and very often involve alcohol. But her statement, which she later apologized for, reveals that she has no intention of taking this seriously. Her new, internally contradictory Dear Colleague letter and accompanying Q&A say that schools must provide the same rights to all parties, but then also say that schools can provide the right to an appeal to the accused alone. The administration’s talking points superficially promise fairness to everyone, but their actual substance allows schools to provide full due process rights to one side and not the other. The real goal of the new guidance is to allow schools to return to their pre-2011 status quo, though this is exceedingly unlikely. Many schools already have firmly established Title IX procedures and promise to defend them.

So we’re still left with the question of what it would mean to take these cases seriously, and balance due process rights against the right of students to an environment free of sexual harassment. If the left pretends that there’s no tradeoff between the rights of the accused and the right to an environment free of sexual harassment, then we aren’t being serious, and we invite the right to expose this unseriousness and set the terms of the discussion. Anne McClintock, a thoughtful and well-regarded feminist scholar, wrote in a Jacobin essay in October that the University of Wisconsin’s “‘philosophy’ was to ‘rehabilitate’ rapists simply by letting them remain in school.” Later, she continued, “Why do administrations protect the rights of the accused? Universities have strong financial incentives to under-investigate and under-report. Administrators seek to protect their brands.” McClintock’s argument presumes her conclusion in its premise: if a student has been accused, we already know he is responsible and should proceed as though he is. I worry that we’ve reached a dangerous place if feminists are willing to sneer at due process rights as the tools of brand-protecting administrators, and treat students found responsible for misconduct as though they’re constitutionally incapable of rehabilitation.

At this point, people who call for limiting the rights of accused students will argue that college disciplinary proceedings aren’t the same as a public trial, because universities set their own community norms and weigh different interests in their proceedings than the state does. This is true, they aren’t, but that’s hardly a legitimate rationale for an unfair system. Sexual assault cases still have lasting consequences for the students involved. The University of North Carolina, for example, was sued in 2016 (so far, unsuccessfully) by media organizations to release the names of students found responsible for sexual misconduct; the publication of such a list could be life-altering for an accused student who was unfairly convicted. Advocates often point to federal statistics indicating that a vanishingly small percentage of rapists will ever go to jail, to show that wrongful convictions are not a credible threat compared to the problem of underreporting. But it’s dishonest to use national numbers from the criminal justice system to make an argument about the climate on university campuses, where the incentives have significantly changed, and reporting is encouraged rather than discouraged.

I think these problems don’t reflect merely the excesses of the Title IX movement (or an “overcorrection” for sexual assault, as it’s been cast everywhere in the media), but a fundamental misapplication of the feminist ideas that underlie our model of sexual harassment and assault. Read carefully, radical feminist literature provides us with some insight about what’s at stake in this debate. In the 1970s, legal theorist Catharine MacKinnon was thinking about how the law could address the fact that all women experience unwanted sexual attention. She thought gender and sexual violence were basically inseparable, and sexuality itself was the source of women’s second-class status. “Male and female are created through the eroticization of dominance and submission,” she wrote in 1983. The very idea of “sexual harassment”—which was previously a private reality of women’s lives, absent from public discourse—emerged from MacKinnon’s insight that coercive sexual attention can constitute discrimination against women. With this shift in public understanding, harassment in workplaces and schools became a public issue sanctionable under civil rights law.

This same premise—that violence is deeply embedded in the dynamic between men and women—animates today’s sexual politics, including the Title IX movement. But feminist writers made another important point: because patriarchy relies on a link between sex and violence, sexual assault often isn’t even recognized as such, and a man could violate a woman while genuinely being unaware of it. As MacKinnon put it: “Many women are raped by men who know the meaning of their acts to women and proceed anyway. But women are also violated every day by men who have no idea of the meaning of their acts to women. To them, it is sex.”

This argument made more sense when MacKinnon was writing, an era when marital rape was only just beginning to be recognized as a crime. Public consciousness around sexual assault has obviously changed since then, but it’s still true that many men don’t understand the difference between consent and non-consent. Watch the indignant reactions of male college students to unambiguous sexual assault scenarios, and this becomes frighteningly clear. At my own college sexual assault training in 2010, students watched a hypothetical scene in which a man had sex with a woman who was extremely drunk and who, he thought, had perhaps told him to stop, though he wasn’t sure and didn’t bother to check. Many freshman boys in the audience vocally balked at the suggestion that this could be assault. All right, you might say—so there are still people who don’t know the difference between consensual sex and sexual assault, but given how far the public conversation has advanced, their plausible excuses for not knowing have narrowed. Why should we be concerned with protecting those men?

This is a good point, and might be an unanswerable argument, if consent and non-consent were always separated by a bright line, which was not only discoverable by an adjudicator, but even clearly-understood by both parties in a sexual encounter. Yet ambivalence and uncertainty—sincerely conflicting and confused desires—make sexual violence unique among crimes. Harvard Law professors Jacob Gersen and Jeannie Suk Gersen point out in their analysis “The Sex Bureaucracy” that “[w]e are…in many ways beyond the so-called ‘he said, she said’ problem in which two people’s accounts of the facts differ, and the question is which account to believe. Many of the current fact patterns appear to be situations in which he and she (or he and he, or she and she) say much the same thing about the facts of the incident, but give different meanings to the experience. The different meanings need not be radically dissimilar to result in different determinations about sexual misconduct.” This is indeed what MacKinnon meant when she argued that existing jurisprudence had no real way of dealing with rape: “[T]he deeper problem is the rape law’s assumption that a single, objective state of affairs existed, one which merely needs to be determined by evidence, when many (maybe even most) rapes involve honest men and violated women.” And then there are cases where a woman’s narrative not only differs from a man’s, but might itself be sincerely ambivalent (“ambivalence—simultaneously wanting and not wanting, desire and revulsion—is endemic to human sexuality,” as Gersen and Suk Gersen put it). It doesn’t benefit feminists to deny these complications, because to do so would unravel the entire foundation of a feminist account of sexual violence.

In the context of a campus sexual encounter, for example, an “honest man, violated woman” scenario might take the form of a man and woman who have sex while they are both drunk. Perhaps they don’t know each other very well and don’t communicate explicitly about what they want. Perhaps there was no physical force, but the woman feels ambivalent about the whole thing. Perhaps she feels in retrospect that she wasn’t really in control of what happened and didn’t feel safe saying no. A university might decide that the man should be held responsible because his partner’s judgment was impaired by alcohol, and he didn’t take steps to ensure her consent. But what if, for example, the man and the woman—who, remember, were both drunk during the encounter—say the sex wasn’t consensual, and both seem to be telling what they genuinely believe to be the truth? Should the man be held responsible as a matter of anatomy? As a matter of the imbalance of power between men and women? How would we handle an otherwise identical case where both parties are men—or where neither is?

Title IX’s more subjective, interests-balancing “civil law” standard, rather than a criminal law standard, is one plausible way to address the interpretive problem of sexual assault cases. Title IX activists are right that criminal law can’t be our only way to address gender-based violence. Alexandra Brodsky, an attorney and Title IX advocate, writes that people’s discomfort with college Title IX procedures like the preponderance standard “speaks to the monopoly that the criminal law holds in Americans’ understanding of responses to gender-based violence.” Ideally, given a difficult case where there may be no witnesses besides the two parties themselves, the preponderance of evidence standard is supposed to make it easier to weigh the interests of accusers and accused equally. Still, in many cases when someone has been hurt by unhealthy or degrading sex, the available evidence still simply doesn’t justify any kind of sanction. As Brodsky, who is thoughtful about how to address sexual violence through legitimate means, said to me: “A lot of bad, unequal, damaging sex just doesn’t break a rule, and I think our efforts to root out the causes of that and to promote sex free from patriarchy is going to need tools other than law and discipline.”

Title IX activists are right that criminal law can’t be our only way to address gender-based violence. Preponderance is generally the standard of evidence applied in civil cases. In a university context, sexual assault is exactly the type of case in which preponderance is useful, because schools have a strong obligation to promote a gender-equal environment and the impact of sexual assault on victims is very high. But this still doesn’t solve the fundamental problem of how we find and interpret facts. Think back to the scenario where the accuser and the accused’s facts are the same, but their interpretations diverge. This is the hardest type of case to adjudicate, and it might mean that many real cases of sexual assault, even using the preponderance standard, could go unpunished because there isn’t enough evidence. (There are still many things that a victim could do, like requesting a residence change, that don’t require an accused student to be found responsible.) On an aggregate level, this is an obviously unfair male bias in our jurisprudence, but this is also the price we pay for a system that’s fair to individuals.

A “believe the victim” ideology should mean that we take women’s subjectivity seriously, but it’s often used as a kind of self-justificatory mantra to argue that we should always take a victim’s account at face value, and ignore the accused’s defense. The framework that’s been embraced by colleges has inappropriately assimilated the ideas of thinkers like MacKinnon to collapse categories like “rape” and “unwanted sex that’s still consented to,” and categories like “unwantedness” and “ambivalence.” We urgently need to apply the insights of radical feminism to our social problems—realizing that sexuality is still bound by the imbalance of power between men and women—but these goals are better realized through cultural means, rather than a legal or disciplinary framework. They should not come at the expense of due process rights.

Sexual assault activists have animated an important shift in public consciousness around how women’s oppression works. This is taking place not just on university campuses but everywhere in our discourse, as in the #MeToo social media campaign that emerged in light of the revelations about Harvey Weinstein and seemingly every man in the media earlier this year. Millions of women posted about experiences ranging from rape, to unwanted sexual attention that wouldn’t meet anyone’s criteria for a punishable crime, but that still reflects a patriarchal power structure. It makes sense that the fight over how to distinguish among these categories has raged the most on university campuses, where students form intimate relationships with one another that could also, if they become abusive or emotionally harmful, conflict with Title IX rights.

The 2011 “Dear Colleague” letter defines sexual harassment simply as “unwelcome conduct of a sexual nature.” This is so unspecific as to cover things that virtually every young adult has engaged in. Unwanted sexual attention can be unfortunate, awkward, patriarchal, and dehumanizing, but this doesn’t mean it will always meet the criteria for creating a hostile environment. Gersen and Suk Gersen write that “in a letter to the University of Montana, OCR wrote that rather than limit sexual harassment claims to unwelcome conduct of a sexual nature that creates a hostile environment, the university should define sexual harassment ‘more broadly’ as “‘any unwelcome conduct of a sexual nature.’” The former includes behavior so threatening that it prevents a student from functioning freely and normally at school, like rape and continued exposure to one’s rapist. The latter could really mean anything; it’s useful as a cultural goal but basically useless in an adjudicatory context.

The cynicism of DeVos’s Title IX “reforms” illustrates something important for the left. It does not help us to defend unfair policies that deprive people of basic procedural rights in order to meet our cultural goals. These same strategies degrade our discourse, and are then used by those on the right, who are better at it and more ruthless about it, to deprive people of rights. The danger of a “believe the victim” paradigm that denies the accused any procedural rights (in addition to the harm that may result to wrongly-accused individuals, or individuals who are sanctioned in a way that is out of proportion to their conduct) is that the right will use the exact same arguments to strip victims of their procedural rights, casting this as a necessary “corrective” for excesses in the other direction.

Leftists must insist on a rights-based rather than vengeance-based politics. It’s understandable that feminism has come to this point. I used to embrace this same logic as a fervid college student. But I think we can do better than this. Betsy DeVos may not take due process seriously, but the left must. Even as we vigorously critique the limits of an individual rights-based paradigm, we also must defend it. It’s still the best that we have.

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