Op-Ed: The Best Way to Address Campus Rape by Judith Shulevitz
THE campus rape debate took another hairpin turn last week when The Daily Beast published an interview with Paul Nungesser, the Columbia student accused of raping a fellow student, Emma Sulkowicz. She has been carrying a mattress around the campus to raise awareness about sexual assault and to protest the school’s failure to expel Mr. Nungesser, who was cleared by a campus tribunal.
The article raised questions about her story; among other things, it included screen shots from Mr. Nungesser’s Facebook account showing that he and Ms. Sulkowicz had traded mutually affectionate messages for weeks after the incident in question.
In response, the Columbia Daily Spectator published two columns wondering whether the paper had been too quick to assume Mr. Nungesser’s guilt. Ms. Sulkowicz’s supporters and some bloggers denounced The Daily Beast for conducting a trial by media and for posting the Facebook pages, which they said added nothing to the story unless you believed that a rape survivor who didn’t behave like the perfect victim had to be a liar.
But the media has reason to retry the case. Ms. Sulkowicz herself sought out the media when Columbia exonerated Mr. Nungesser. And the media made Ms. Sulkowicz so well known as a rape survivor that Senator Kirsten E. Gillibrand, Democrat of New York, invited her to the State of the Union address and publicly declared that she had received “no justice.” Very few people, and almost no one in the media, thought to question that assertion, because everyone knows, just knows, that you can’t trust a campus sexual assault proceeding.
What explains the nearly universal lack of confidence in these proceedings? Universities share some of the blame, but there’s another culprit too: the United States government. People often wonder why college administrators try to adjudicate these fiendishly difficult cases, rather than putting them in the hands of the criminal justice system.
The reason is that the Department of Education has very forcefully told schools to handle sexual grievances themselves and given them very detailed instructions about how to do so. A report last year from a White House task force on campus sexual assault underscored the importance to a university of following that advice. Even though the D.O.E.’s instructions are presented as recommendations rather than law, its Office for Civil Rights can put any school that fails to follow them on the list of colleges under investigation and even take away its federal funding.
There’s no doubt that on many occasions colleges have not treated sexual-assault accusations as seriously as they should have. Nor did they do enough to ensure that women felt completely safe on campus. But in the past half-decade, the civil rights office has tried so hard to correct that problem that it is now forcing schools to go too far in the other direction, which has made campus procedures seem even less credible. Schools are being told to disregard what most Americans think of as the basic civil rights of a person accused of a heinous act.
Among other things, schools have to determine guilt on the basis of a “preponderance of” rather than “clear and convincing” evidence — that is, on a 51 percent likelihood that the man did it, rather than a 75 percent one. (In these cases, the accused is almost always a man, although the accuser is by no means always a woman.) Neither party is allowed to cross-examine the other, lest direct questioning re-traumatize a victim. Schools must resolve cases swiftly — the original requirement was 60 days, though the latest guidelines leave out the number and simply stress the need for a prompt resolution — even if a criminal investigation is going forward at a slower pace.
That puts a student who wants to defend himself at risk of saying things that could later be used against him in court — and at many schools, he’s not even allowed to let a lawyer speak for him. At least 30 male students, some of whom were suspended or expelled for sexual misconduct, have filed suits against their universities, claiming that the process was unfair.
What should universities do to convince the world that they’re fit to deal with campus rape? First, they should band together and demand that the government rethink its guidelines, especially those that flout the key tenets of due process. Second, they should ask the Office for Civil Rights to clarify its notion of sexual misconduct, now left to each school to define. Is it rape if a man fails to get affirmative consent at every stage of a sexual interaction, or only if he ignores a spoken objection? If a man and a woman are equally drunk, should he be found guilty of assaulting her because she was too intoxicated to agree to sex, even though he himself may have been too drunk to know that? (Right now, at most schools, he would be considered guilty.)
Third, universities should insist that determinations of guilt or innocence rely on a “reasonable-person test,” according to which the accused is only culpable if a reasonable person would have considered his actions to be wrong. Without that standard, his fate may rest on her subjective judgment — if she feels that he imposed unwanted sexual contact on her, no matter what he actually did, then he can be found to have harassed or raped her. (Harvard’s controversial new policy leaves out the reasonable-person standard, which is partly why 28 of its law professors have publicly objected to it.)
The fourth step, however, may be the most important. Though schools have the right to uphold their own standards of conduct, the government is currently scaring them into creating big, expensive bureaucracies and designing unduly cumbersome policies. Meanwhile, there are many more 18- to 25-year-old rape victims outside the walls of colleges than inside them. The smarter and more public-spirited thing for schools to do would be to divert at least some of their time and energy to forming partnerships with local law enforcement agencies.
It is widely believed that the police are insensitive to rape victims. Universities, on the whole, have a great deal of clout in their communities; they also possess considerable intellectual resources. They could be helping policemen and prosecutors do a better job with sexual violence cases instead of squandering money and good will on their own all-too-easily second-guessed shadow justice systems.