The most terrifying book you will read this year isn’t written by Stephen King. It’s written by a lawyer and a history professor, and it will blow your hair back.
The book is The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, by KC Johnson and Stuart Taylor, Jr. I cannot recommend it highly enough.
By way of background, my firm does a lot of work in this area. At this point, we’ve represented students accused of campus misconduct at more than 60 colleges across the country. Matt Kaiser and I write and speak frequently about these issues, and my firm has sued several schools for mishandling these cases.
We were the first firm in the country to win summary judgment against a school for violating an accused student’s due process rights. We’ve even written an e-book for people who can’t afford a lawyer about how to defend yourself in one of these cases.
So it was with a not insignificant amount of excitement that I came to this book. (And in the interest of full disclosure, I’m quoted in the book; Stuart is a friend, and I have met KC once.) Finally, the two people who blew a hole in the false media narrative regarding the Duke lacrosse case were going to direct their attention to what has been happening on college campuses since the 2011 release of the Dear Colleague Letter by the Education Department’s Office for Civil Rights. And I am fairly confident they never thought they would have to till this ground again.
After all, you would think that publishing a widely heralded 2007 book on the Duke case would have convinced people that sometimes colleges don’t handle sexual assault cases particularly well. You might even think that colleges would have learned from Duke’s terrible mistakes, which are rumored to have cost tens of millions of dollars in settlements. Alas, you would be wrong. But I love your optimism.
There are too many things to praise about this book in this column, so I think I’ll just focus on my favorite part — what it does to the faulty, yet oft-repeated, statistics in this area.
By now, if you have followed this controversy at all over the last few years, you have heard of “one in five” — the idea that one in five women are sexually assaulted on college campuses.
Now, you might think that seems like an awfully big number given how many college students there are in the country. If that statistic were true, it would constitute an absolute epidemic of rape. The authors put that number in sharp relief:
The most recent data from the Department of Education indicate that approximately 10 million women are enrolled (full- or part-time) as undergraduates. The one-in-five figure would indicate that 2 million of them will be sexually assaulted at college. That’s 400,000 to 500,000 sexual assaults per year, depending on how many schools are classified as four-year and how many are classified as five-year. For comparison’s sake, under the expanded definition of rape used in the FBI’s Uniform Crime Reports, in 2014 there were 116,645 rapes in the entire United States, a nation of 160 million females, one-sixteenth of whom are in college.
When you actually sit down and do the math, common sense would tell you that “one in five” is false. But as Mark Twain famously said, there are lies, damned lies, and statistics.
But Johnson and Taylor don’t just rely on common sense—they actually do the research and find out how false this is. As they write:
The National Crime Victimization survey (NCVS), conducted every six months by the U.S. Census Bureau for the Justice Department’s Bureau of Justice Statistics (BJS), has long been regarded as the gold standard of crime surveys. In 2014, BJS estimated that 0.61 percent of female college (and trade school) students, of whom 0.2 percent are raped, are sexually assaulted per year. Nonrape sexual assaults include unwanted sexual touching, attempted rape, and threats.
So it’s not “one in five,” or anywhere close to that. It is an order of magnitude less than that, as the authors make very clear.
There is another false statistic that gets bandied about repeatedly. And this one, in many ways, is even worse — because its harm is more direct.
It’s sometimes even put in the training materials given to the panelists who decide these cases at two public schools — essentially, in their jury instructions. The statistic is this: that the false-report rate for sexual assault is between 2 and 8 percent, likely closer to 2 percent due to miscategorization by law enforcement.
As you may know, the burden of proof in these cases is preponderance of the evidence. So these panelists are, in effect, being told that there is between a 92 and 98 percent chance that the accuser in a case is telling the truth, and they only need to decide that issue by 50.1 percent. I have never understood how any lawyer could, in good conscience, support such an idea, but I’ve seen it more than once, and I have seen school lawyers defend using this statistic.
Johnson and Taylor debunk this statistic too. The most risible thing about it is its initial source — a book published more than 40 years ago:
The best known source of the claim that only 2 percent of rape accusations are false is Susan Brownmiller’s 1975 book Against Our Will: Men, Women, and Rape. For this fact, Brownmiller cited not a study but rather a speech, by a New York judge, who mentioned unpublished alleged finding by the “NYC Rape Analysis Squad.”
As Dave Barry likes to say, I am not making this up.
Another source for that statistic was research conducted by a man named David Lisak, whose research in this area was debunked by articles in Reason in 2015. As the authors point out, even Lisak himself can’t keep his numbers straight:
Ironically, in a paper published in 2009, Lisak had claimed that “estimates for the percentage of false reports begin to converge around 2-8 percent.” Later, in the 2015 documentary film The Hunting Ground, his estimate jumped to “more likely 95 to 98 percent of [campus] rape reports are not false.” So, over a six‑year period and based on the same data, Lisak cited an upper range of false rape claims as 5 percent (2015), 8 percent (2009), and 10 percent (2010). These discrepancies came without explanation from someone purporting to be a careful scholar.
Johnson and Taylor also do an incredibly persuasive deep dive on how Lisak defines a “false” complaint. The restrictiveness of his definition is astonishing. As they note, Lisak is someone who said in November 2007, well after the Duke lacrosse case had been exposed as a giant fraud, that “he would not classify as ‘false’ the previous year’s Duke lacrosse case. ‘I don’t know what happened at Duke,’ he said. ‘No one knows.’”
The book is much more than statistics, of course. Johnson and Taylor do a terrific job highlighting the terrible abuses of due process on college campuses across the country, the find-guilt-at-all-costs mentality of many Title IX coordinators, and the sheer hypocrisy of liberals who once claimed to care about due process.
If you’re interested in these issues on either side, I urge you to read this book. After The Campus Rape Frenzy, it will be hard to have a serious conversation about campus sexual assault if you haven’t read this book. It’s a quick read and a tremendously compelling one. Johnson and Taylor have done a tremendous service for both the lawyers who practice in this area and the people affected by the terrible abuses going on at college campuses across the country.
Read more at: http://abovethelaw.com/2017/03/everything-you-think-you-know-about-campus-sexual-assault-is-wrong-a-review-of-the-campus-rape-frenzy/