As the Campus Rape Narrative Unravels, Will Due Process Strike Back in 2015? by Robby Soave
It was undoubtedly a year of heightened paranoia about rape on college campuses, with everyone from Lena Dunham to President Obama demanding immediate action to curtail a purported epidemic of sexual violence. But due to a string of embarrassments, 2014 ended on surprisingly sour note for illiberal activists conspiring to shunt aside due process in their zeal to eradicate an exaggerated and politicized problem.
Still, while the voices of reason—of fairness for accusers and the accused—scored some ideological victories this year, 2015 will likely present even more daunting challenges. Dark clouds loom on the horizon, according to several legal experts who are advocates for campus due process or involved in rape disputes. In particular, a wave of wrongheaded affirmative consent policies—which force students to adopt bizarre and limiting sexual consent customs—could sweep the nation.
"I would guess that affirmative-consent ordinances will become law in various municipalities governed by Democratic machines, like Chicago (as well as New York City)," wrote Hans Bader, a senior attorney at the Competitive Enterprise Institute and former Office for Civil Rights lawyer, in an email to Reason. "'Affirmative consent' is like quasi-religious catechism for the Democrats."
In 2014, government policymakers seized upon a controversial statistic—that one-in-five women will become victims of sexual assault or attempted sexual assault while at college—like never before. Long had that number been part of certain feminist activists' mantras, but last January, President Obama cited it in a memorandum establishing a task force to combat the campus rape crisis. Other areas of government used the statistic to justify firmer measures. The Department of Education continued to punish colleges for failing to tip the scales in favor of the accusers during rape trials. And the state of California, decided—incorrectly—that misunderstandings surrounding the decision to have sex were the main problem, which prompted the legislature to codify affirmative consent and compel colleges to enforce it.
Affirmative consent is a baffling way to fight sexual assault. Rape is a crime committed by a minority of determined, serial perpetrators; it’s unclear why activists think that forcing students to jump through new hoops before they have sex will deter these monsters. The policy will produce more mutual confusion and false accusations, however.
But sadly, the compelling arguments against affirmative consent haven’t dissuaded college administrators from codifying it, according to Gina Lauterio, program director at Stop Abusive and Violent Environments, an advocacy organization for victims of sexual assaultand false allegations.
"By now you’ve probably heard many reasonable arguments against both affirmative consent and increased federal regulation in campus sexual assault, and they were probably convincing," Lauterio told Reason. "That’s irrelevant. There were severe logical loopholes in [California’s affirmative consent bill] and it still passed, and elsewhere affirmative consent is being passed by executive order, therefore making a body of reasonable minds unnecessary."
Activists’ reliance on the misleading 1-in-5 statistic might, at least, subside in 2015. New data from the federal government’s Bureau of Justice statistics indicated that students were actually less likely to be victimized than non-students, and suffered rape rates that were nowhere near 1-in-5. Politico noted that the statistic was "increasingly disputed," and Sen. Kirsten Gillibrand (D-New York), a firm believer in tougher anti-rape policies, quietly scrubbed any mention of the stat from her website.
The collapse of Rolling Stone's report on a gang rape at the University of Virginia (UVA) was perhaps an even more dramatic setback for activists. Shortly after the incredible story broke, UVA President Teresa Sullivan suspended all campus fraternities, and people predisposed to believe that campuses are veritable rape factories took up their pitchforks. But the story’s thorough debunking left them with egg on their faces. As Reason contributor Cathy Young noted, the crusade against rape culture undeniably "stumbled" in 2014.
Unfortunately, none of these small wins for sanity about the scope of violence on college campuses mean that due process is destined to make a comeback in 2015. Lawyers Matt Kaiser, an adjunct professor of law at Georgetown University, and Justin Dillon, a former Assistant U.S. Attorney, represent dozens of students accused of sexual assault through their firm Kaiser, Legrand & Dillon PLLC. They have seen firsthand just how shoddy the farcical campus adjudication processes are: Accused students are frequently denied basic due process and placed at the mercy of administrators and faculty members with no understanding of how a fair trial should work. They see little reason to be optimistic that the problem is going away.
"The Department of Education has made clear that it doesn’t really care about due process, which means colleges won’t either—until they start having to pay out large damage awards to wrongly convicted students," Dillon told Reason. "The more that happens, the more likely you are to see the pendulum start swinging back to a sensible middle."
Dillon and Kaiser agreed that while some colleges were doing a better job of establishing fair procedures than others, the tide isn’t exactly turning yet.
"So far, the UVA story crumbling and the debunking of the 1-in-5 statistic don't seem to have changed the way these cases are handled," said Kaiser. "Hopefully there will be more media scrutiny and that will start to affect how these cases are resolved on campus."
Advocates for due process haven’t won the policy battle—let alone the war—yet, which means 2015 could be another rough year for students’ rights. But it’s impossible to deny that the chorus of voices demanding an end to kangaroo courts grew louder this year, with Harvard’s law faculty, Slate magazine, conservative organizations, and libertarians all decrying the travesties of campus injustice.
"At the beginning of 2014, only a tiny handful of commentators and scholars were skeptical of the idea that American universities are plagued by a culture of rampant sexual violence," Caroline Kitchens, senior research associate at the American Enterprise Institute, told Reason. "Over the past year, the national discussion on campus rape has evolved dramatically, and I see a glimmer of a growing consensus that we need to focus on empowering the criminal justice system to handle cases of campus rape rather than university courts."
Still, Kaiser and Dillon don't think they will need to quit their jobs anytime soon.
"Affirmative consent laws will, unfortunately for the students subjected to them, be a full-employment act for lawyers who do this work," wrote Dillon. "California’s law, for example, is terribly worded and contrary to everything we know about how sex between human persons actually works."