Sexual Assault's Broken System of Justice
Let’s be very clear from the outset: Sexual assault is a crime. Rape is a felony. Perpetrators must be called to account and victims deserve justice. Critiquing the processes through which such accounting and justice are determined in no way diminishes the seriousness of the crimes themselves.
But let’s also be very clear that, especially on American college campuses, there are few crimes where the deck is more stacked against the accused. Good intentions, political capital, and the lure of presumed expertise have combined to create a system that inflates the incident rate, perpetuates misinformation, and ignores due process. In what has been aptly described as an over-correction, higher education has turned the very premise of judicial logic on its head.
There have been recent attempts balance the scales. It is a thankless task. As demonstrated by the New York Times review of a new book by KC Johnson and Stuart Taylor Jr., any suggestion that the current state of due process on college campuses harms the accused is dismissed as misogyny. Up against distorted presentations of cases like those highlighted in “The Hunting Ground”—a distortion that nearly bordered on parody—or the performance art of a woman carrying a mattress around campus long after the student she’d accused had been exonerated, reality is, sadly, a weak tool. Nowhere has this losing battle been better illustrated than the continuing story of Rolling Stone’s Jackie: Long after it had been irrefutably established that she’d made up the rape that was the centerpiece of the magazine’s article, “A Rape on Campus,” long after her catfishing scheme to attract the attention of another student had been exposed, even after the absurdity of supposed texts from an imaginary suiter were revealed as dialog from an episode of “Dawson’s Creek,” attorneys for Rolling Stone insist that “something” must have happened. What is the old saying? Never let facts get in the way of a good story.
How did we get here?
The Regulatory Environment
We can begin by stipulating that victims of sexual assault have not historically been treated well or fairly by the legal system, college campuses, even friends and family. We can further stipulate that, as a result, victims of sexual assault may have shown an understandable reluctance to report these crimes.
Changes in reporting procedures and interview techniques, and the institution of shield laws that preclude irrelevant information about an accuser during trial, are therefore laudatory. All bolster the pursuit of justice for the victims of sexual assault.
Due process for the accused, however, again especially on college campuses, has taken a very different path. In recent years, reinterpretation of existing federal regulations, new reporting requirements, and guidelines from the Department of Education’s Office of Civil Rights that far exceed its presumed role have created an environment that is simultaneously incomprehensible and pointedly toxic.
In 1972, Title IX of the Education Amendments created federal regulations that prohibited discrimination based on sex at educational institutions. Specifically:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance. (106.31)
Title IX is enforced by the Department of Education’s Office for Civil Rights (OCR). According to the OCR’s Title IX Resource Guide:
Title IX prohibits sex-based harassment by peers, employees, or third parties that is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the recipient’s education programs and activities (i.e., creates a hostile environment). When a recipient knows or reasonably should know of possible sex-based harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. If an investigation reveals that the harassment created a hostile environment, the recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent the harassment from recurring, and, as appropriate, remedy its effects.
Although there is no language specific to sexual assault or rape in the list of list of prohibitions, they fall under the sexual harassment guidelines apparently because they create a hostile environment. Under this interpretation of Title IX, schools must take action to address sexual assault even before a formal complaint has been filed, an investigation launched, or a hearing held.
(It is worth noting that sexual assault and rape should actually have no place under Title IX. They are criminal acts. Why the federal government encourages this misplaced authority has not been well-articulated.)
Certainly, victims of sexual assault have experienced hostility. Title IX, however, was intended to focus on differential treatment based on sex. Even given the fact that most victims of sexual assault are women, it’s unclear how the probability of being the victim of sexual assault constitutes differential treatment by an institution. It is here, therefore, that the notion of “rape culture” enters the conversation. The probability of women becoming victims of sexual assault, so the logic would have to go, is based on systematic failures at the institutional level, specifically institutionally promulgated or condoned violence whose byproduct systematically denies access to educational programs.
That is the tactic that complainants have taken: That colleges have failed to prevent violence they should have known would happen. This logic suggests that college campuses—or at least those against which complaints have been brought—have made institutional decisions that leave students vulnerable to sexual assault and that the aftermath of sexual assault prevents equal access to education (presumably because of the continuing presence of the accused and/or the trauma suffered by the accuser).
As per its guidelines, OCR expects an investigation with the intent of uncovering similar acts of sexual violence, even if knowledge of the single act of which it has been informed is precariously based on a report from a third party.
The school may also receive notice about sexual violence in an indirect manner, from sources such as a member of the local community, social networking sites, or the media … OCR may conclude that the school should have known of the hostile environment. In other words, if the school would have found out about the sexual violence had it made a proper inquiry, knowledge of the sexual violence will be imputed to the school even if the school failed to make an inquiry [and] even if the student did not use the school’s grievance procedures or otherwise inform the school of the sexual violence. (Emphasis added.)
Further, OCR notes that “The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. Indeed, a single or isolated incident of sexual violence may create a hostile environment.” (Emphasis added.)
Once a complaint has reached the adjudication stage, the accused finds himself with significantly fewer rights on campus than would accrue to him in the criminal justice system.
The accuser need not be present during a disciplinary hearing. If she requests confidentiality, her identity may not even be disclosed to the accused.
The college may prevent the accused from using legal counsel during a disciplinary hearing as long as it specifies that neither party to the accusation may have legal counsel.
When legal counsel is present, most campuses allow them to speak only to their client; they may not ask questions of the accuser. Students are expected to speak for themselves but the accused may not directly ask questions of his accuser. Instead, the accused may submit questions to a third party—most often the same person charged with protecting the accuser—and the OCR recommends that the third party screen those questions and ask only those it considers relevant.
If a college’s policies allow the accused to appeal the severity of sanctions imposed on him, the college is required to allow his accuser to appeal sanctions she does not believe are severe enough.
Appeals are often handled by the same office that handled the original complaint.
In 1990, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act—most often known simply as the Clery Act—was signed into law. To be in compliance, colleges must make their campus safety policies public and must report crimes that occur on campus (and, in some cases, off-campus locations that are college-owned).
At least that’s the public’s interpretation of what constitutes a Clery crime report; the reality is somewhat different. The actual reporting process is structured such that there is continuous risk of significant over-reporting of alleged crimes and limited ability for correcting the record.
From The Handbook for Campus Safety and Security Reporting:
The [Uniform Crime Report] Hierarchy Rule does not apply to the crime log. If multiple Criminal Offenses are committed during a single incident, all of the offenses must be recorded in the log.
A crime is “reported” when it is brought to the attention of a campus security authority, the institution’s police department or campus safety office, or local law enforcement personnel by a victim, witness, other third party or even the offender.
A reported crime must be logged regardless of how much time has passed since it occurred.
If a reported crime is fully investigated by sworn or commissioned law enforcement personnel, and, based on the results of the investigation, they make a formal determination that the crime report is false or baseless, the log should indicate, as the disposition of the report, that the crime is “unfounded.”
The “unfounding” of Clery reports is almost impossible for most college campuses. Again, from the handbook:
You may classify a crime as unfounded only after a full investigation by sworn or commissioned law enforcement personnel … a reported crime cannot be designated “unfounded” if no investigation was conducted or the investigation was not completed. Nor can a crime report be designated unfounded merely because the investigation failed to prove that the crime occurred; this would be an inconclusive or unsubstantiated investigation.
Further, an alleged crime cannot be unfounded by the findings of a judge, jury, coroner, district attorney, or any other person or entity that is not a sworn or commissioned law enforcement officer. Nor can the findings of a campus disciplinary committee whose investigation determined that no violation occurred remove the case from the report. Even a retraction by the complainant does not erase the record.
Nor can mistakes be unfounded. An alleged crime that occurred away from campus, on property unconnected to the college, is not subject to Clery reporting. However, campuses may not unfound acts mistakenly reported to have occurred on campus. The guidelines go so far as to explicitly prohibit such a correction.
The near impossibility of correcting the record is not the only problem with Clery reports. Since third-party reports are given the same weight in Clery data as reports from alleged victims themselves, the risk of multiple reports on the same incident—whether real or not—is extremely high. As campus security personnel are not allowed to conduct any level of investigation before adding a report to the record, there is little chance to determine whether or not reports represent different incidents. For example, if a campus public safety office was contacted about a possible sexual assault by a counselor to whom a student had gone, a faculty member who’d spoken with a friend in whom the student had confided, the student’s residence advisor who’d spoken with the same friend, and a teammate who’d heard through yet another third party that something might have happened to someone on the team—none of whom are required to provide a name, location, date or description of the incident—the single incident would be recorded as four separate incidents. If the incident as conveyed to campus safety included two different categories of crime—unwelcome sexual touching leading up to sexual assault—the number of incidents has now doubled to eight.
The Clery Act does provide definitions of the crimes under its purview. It’s fair to assume the campus safety office will know what constitutes sexual assault, and it’s likely that counselors and residence advisors will have a reasonable understanding of terms like sexual assault and rape. However, since the person to whom an incident is reported may only convey what was provided, there is no guarantee that “my friend was raped” or “I heard there was a sexual assault” meet those definitions. Clery guidelines also do not require that someone reporting an incident even be associated with the college to whom he or she is reporting, increasing the distance between what was presumed to have happened and the Clery Act’s specific definitions of reportable crimes.
Guidelines at the campus level contribute further to these definition and counting issues. For example:
Q: What if the information I have doesn’t make sense, the facts don’t add up, or I don’t believe the information is credible?
A: If you are unsure whether or not the information is credible, don’t try to investigate to determine if the crime took place. Try to provide as many key details as possible about the incident in your report such as: who, what, where, when and how.
Q: If a victim or witness already filed a report with another University department (Community Rights & Responsibilities, Student Health, Housing, etc.), do I need to file a report?
As a result, the stage has been set for inflated reporting of campus crime. Media have then selectively highlighted a handful of campuses with the highest numbers as though they’re the norm. This has been the case even when the most rudimentary grasp of mathematics or the absence of criminal investigations should raise skepticism about those cherry-picked cases.
An analysis of Clery data from all public and private four-year colleges and universities from 2010 to 2015 revealed 4,517 reports of forcible sexual assault. Enrollment at these schools during the same period was 12,165,344. That’s an incident rate of 0.04 percent.
This is hardly striking evidence of a “rape epidemic” on college campuses suggested by selective reporting. But conflation of Clery reports and actual findings, combined with kneejerk dismissal of low incident reporting, provide cover for the otherwise unreasonable-on-its-face contention that, for example, not only were 89 students at tiny Swarthmore College (enrollment just over 1,500) victims of sexual assault in a single year, but that such a crime spree triggered no criminal investigation. As coverage of Columbia University’s sensationalized “mattress” case demonstrated, there is a troubling “willingness to treat uncorroborated narratives of victimization as fact.”
Dismissal of Exculpatory Evidence
By now everyone knows that the explosive charge leveled at the University of Virginia—a freshman named Jackie had been gang-raped at a fraternity party and was dissuaded from pursuing charges by an uncaring administration—was fraudulent. The Rolling Stone article was exposed as incompetently vetted and the bias of its author was persuasively demonstrated. Parties whose reputations were harmed by the article have since sued Rolling Stone for damages.
Jackie, however, continues to get a pass. In spite of compelling evidence that she’d created a universe of false information—including inventing a suitor, setting up a fake account from which to send messages, sending third-party text messages to a student on whom she had a crush, and shamelessly stealing dialog from “Dawson’s Creek” as content—she has been shielded from any consequences on the basis of alleged trauma that prevents her from accurately recalling details of her conversations with University of Virginia administrators or Sabrina Erdely, the Rolling Stone reporter.
That the rape which would have created the trauma never happened is not, it would seem, especially relevant. In campus disciplinary hearings and in the court room, contradictory statements and the inability to recall details about a traumatic event have been codified as proof it happened. More troubling, this perplexing use of information is not just the province of defense attorneys in a libel case. When campus sexual assault cases do make their way to the criminal courts, prosecutors are advised that their determination of a case’s validity should not be affected by “false, omitted, exaggerated, or inconsistent” information provided by the alleged victim. If the alleged perpetrator is known to the complainant, is someone with whom the complainant may have had a previous sexual relationship, or if the complainant admits to drinking prior to the assault, prosecutors are further advised that the probability the crime occurred is especially high on the theory that these conditions are otherwise too embarrassing to admit.
Dismissal of misinformation is unfortunate in a case like Jackie’s, when the result is that someone who caused nearly irreparable harm to the reputation of a university, a fraternity, and an administrator is not called to account for her callous actions. When such dismissal is similarly applied to what would otherwise be exculpatory evidence, the accused perpetrator of sexual assault enters a surreal environment where its very existence is proof of both the crime and his guilt.
Beyond individual cases, widely representative, federally mandated and aggregated data that contradict the existence of a sexual assault epidemic on college campuses is dismissed. In 2014, 91 percent of campuses had zero reports of rape in their Clery disclosures. Recall that Clery discloses reports, not findings, and so requires only the accusation. The American Association of University Women concluded that the absence of these accusations at the vast majority of schools, rather than serve as evidence that the danger to students may have been hyped, was instead a call for "additional scrutiny" at these schools. Citing no evidence, the AAUW claimed that the data “did not square” with student experiences and suggested, again without citing evidence of any kind, that “students may not feel comfortable” reporting rape.
The irony is palpable: Data required by the federal government in response to an epidemic for which no reliable proof had been offered are then dismissed when they fail to support the narrative that compelled their collection in the first place. For what other type of crime would so few reports be deemed sufficient evidence that college campuses are dangerous?
Bad Data, Bad Research, and the Courts
Just as Clery numbers are invoked and misused by people who have never bothered to read the Clery Act, there is no shortage of people willing to invoke research they’ve never read (or, worse still, to quote people invoking research they also have never read). It is an especially precarious situation when law enforcement and the courts find themselves at the mercy of “expert” witnesses with an agenda or a financial stake in continuing that status.
False Report Statistics
Among the most problematic form of this misinformation pipeline is the persistent insistence that false reports of rape are rare. A handful of reports, all with statistical issues, are cited as support. The study that gets the most attention—in large part because its primary author had earlier staked his claim as an expert on sexual assault perpetrators, a status that has been only slightly tarnished by the dismantling and refutation of his theories—was reported in a 2010 paper by David Lisak et al. Lisak and his co-authors looked at 136 reports of sexual assault during a 10-year period at a single northeastern university.
In order to classify a sexual assault report as false, Lisak required evidence of a “thorough investigation,” including interviews with the accuser, accused, witnesses and, as applicable, collection of forensic material (e.g., medical records, security cameras). He classified only eight of the 136 cases—6 percent—as meeting this threshold. For five of the eight, the accusers had admitted to the fabrication.
At the risk of stating the obvious, thoroughly investigating an event that never occurred presents logistical problems, not the least of which is an absence of forensic material. The larger issue, however, is not the determination that 6 percent of these reports were demonstrably false. It’s the implication, based on this and similarly flawed data, that most rape accusations must therefore be true. This implication is given voice across a wide range of media and victim advocate organizations. For example:
Coalition to End Sexual and Domestic Violence claims that “reported sexual assaults are true, with very few exceptions.” This statement is also repeated verbatim in many state and metropolitan area guidelines for law enforcement and sexual assault programs.
The New York Times not only did the (mis)calculation but helpfully showed its work. “ … between two percent and 10 percent of rape reports are bogus. As one ponders this discomfiting information, though, it’s important to keep in mind what the flip side of these numbers reveal: Between 90 percent and 98 percent of rape allegations are true.”
The New Republic, in a story about the con perpetrated on Rolling Stone by the University of Virginia’s “Jackie,” still managed to assert that “if someone tells you she was raped, she is most certainly telling the truth.”
That’s not what the data actually say.
Returning to Lisak’s study: Of the remaining 128 cases, 35 percent were referred for prosecution or disciplinary action. Although the disposition of those cases is not reported, it would not be fair to count these cases as false.
For another 14 percent, there was insufficient information even to determine whether a case had proceeded. Basic math dictates that, minimally, those cases should have been removed from the calculations. Not doing so is akin to putting two apples, four oranges, and four pieces of fruit in sealed boxes on the table and concluding that the percentage of fruit that are apples is 20 percent. Not knowing what’s in the sealed boxes precludes them from inclusion in the calculation. Lisak’s team, however, included the equivalent of sealed boxes.
The remaining 45 percent of the cases were not referred for prosecution or disciplinary action based on a lack of evidence, the accuser’s decision not to proceed, or the fact that the accuser’s account, though truthful, was of an act that didn’t qualify as sexual assault. Again, there is no way to determine the validity of these cases.
The bar for determining an accusation was false was set extraordinarily high by Lisak’s team. An accusation bearing not even the slightest relationship to a credible declaration wouldn’t meet that standard since no investigation would have taken place. These and all cases that didn’t proceed due to lack of credible evidence, including cases where the act reported was not a criminal act, were counted as though they were true.
Finding—in a limited analysis of a single campus—that 6 percent of reports were clearly and egregiously false does not mean that 94 percent were true. All that could be concluded with certainty is that Lisak and his co-authors found 6 percent to be false and 35 percent credible enough to proceed. The cases that fell in between—the majority of cases—had no evidence, conflicting evidence, or insufficient information even to classify them.
When asked to respond to critiques of his work in the past, Lisak has declined.
Others, including National Review and Reason, have pointed out the near identical misuse of basic math rampant throughout studies alleging low rates of false reports. This is not new. Nor is it simply an academic issue. Given how few people will have read the original papers on which such tenacious public beliefs are based, the word of supposed experts like David Lisak has real-world consequences.
Perpetuation of Misinformation in the Courtroom
The criminal case at the center of Jon Krakauer’s 2016 book, “Missoula: Rape and Justice in a College Town,” is an example of a particularly frightening consequence. In a development that was unusual for a rape accusation that was first made by a student against another student, the case against Jordan Johnson went to trial. The defense attorneys for Mr. Johnson asked that the rape charge against him be dismissed in part because they believed the Missoula Police Department’s sexual assault investigation policy violated the presumption of innocence. Whether that was an appropriate basis for the dismissal request is best left to legal experts. What is more clearly inappropriate, however, is that the judge based her ruling on David Lisak’s misrepresentation of his own paper.
The Court finds that the Missoula Police Department’s policy … is not in violation of the presumption of innocence. It is not improper for the police to have this policy because, as Dr. David Lisak noted in his expert witness disclosure, the percentage of false reports is very low … It is hereby ordered that the Defendant’s Second Motion to Dismiss is Denied.
Even if the research were valid—and it’s worth repeating that it is not—a judge’s decision to proceed to trial based on the statistical probability that the accused is guilty is troubling. It is difficult even to imagine another type of crime for which the presumption of innocence has been so compromised.
In spite of this setback, Jordan Johnson was acquitted in criminal court on March 1, 2013, and reached a settlement last year with the University of Montana based on what was found to be an unfair investigation.
The potential for harm represented by David Lisak’s testimony is not limited to his own appearances as a witness for the prosecution in cases that have found their way from the college campus to the criminal court. His continued involvement with the National Judicial Education Program all but guarantees perpetuation of misinformation about sexual assault in the American judicial system. In spite of multiple investigations that dismantled the research that is the foundation of NJEP’s sexual assault curriculum, his material is still cited by national organizations such as the American Prosecutors Research Institute, the National District Attorneys Association, and the National Campus Law Enforcement Leadership Institute, as well as state and county offices such as the North Carolina Justice Academy, the Washington State Court System, and the Missoula County Attorney's Office.
Adjudication of sexual assault on college campuses is based on federal regulations and guidelines that hold the accuser to a very low threshold of proof. Combined with the perpetuation of bad data—much of it traceable to the debunked David Lisak—due process has been severely compromised. The assertion that college campuses should not be in the business of adjudicating felonies—while true—would leave the determination of guilt to a court system that seems in danger of being equally blinded by misinformation.
It is past time for a thorough review of Title IX (at least the OCR’s interpretation of it) and the Clery Act. Are they succeeding as intended? Data would suggest not. Sadly, data have been devalued in favor of hyperbole and unsupported narrative.