No Laughing Matter: Campus Sexual Assault and Due Process

A college woman's reflection on campus sexual assault and due process

“Don’t misunderstand the is perhaps a matter of justice, but it is at the same time a matter of discipline. And on board ship it is the captain who determines both, and especially the latter.”

–Uncle Jakob in Kafka’s Amerika

Today I attended an event at Princeton University hosted by the James Madison Program in American Ideals and Institutions. The event was titled “Fighting Campus Rape and Respecting Due Process: A Conversation” and included KC Johnson, Professor of History at Brooklyn College, and Stuart Taylor, Jr., a journalist and author. Together, these men authored The Campus Rape Frenzy; The Attack on Due Process. Maybe on another day, I would have gone there to protest, but today, I went there solely to listen.

I attended this event as a senior college woman who is an active member of a consent based activism group on Princeton’s campus called Speak Out, and as a scholar who plans to go to law school and study constitutional law. I was prepared to feel some internal conflict about both topics, as I was going to need to think critically about them individually and in light of each other. Additionally, The James Madison Program in American Ideals and Institutions is well-known conservative institution, so I knew my ideals surrounding the handling of campus rape, and perhaps even my constitutional ideals about due process, would be challenged.

I agreed with some of the content of the initial presentation. Professor Johnson raised the point that the system used by colleges and universities to discipline those accused of sexual assault violates due process, if the process is to be likened to a matter handled in criminal court. The issue here is that colleges and universities are not a criminal court. In his opinion, ideally all of these cases would go through police investigations and handled in the criminal justice system; police forces and the justice system should be putting way more resources into sexual assault/violence investigations and the court should be a non-hostile environment for the victim and follow due process for the accused. Finding the truth is their common interest; a fair process is in the best interest of both parties, and it is best through the eyes of the law. However, that is not the reality.

I agree, Professor Johnson. And I have heard firsthand innumerable accounts of sexual assault survivors’ stories, through events such as Take Back the Night, friend’s accounts, and working at the Office of the Alternate Public Defender of San Diego. These stories come from individuals who have never reported their assault, individuals who have been in court for years only to lose, and individuals who have won their cases. Reliving the level of personal violation throughout the merciless, arduous process of a criminal trial is not what anyone wants to do. And so, colleges and universities, as concentrated hubs of sexual activity, are forced to deal with this issue without the proper resources they need to have a fair process for either party. They do not have the power to subpoena documents or texts, the ability to cross examine, and in some cases the accused do not know exactly what they are accused of. The process can be less traumatic for the victim than it is in the criminal courts, which is a positive. This is all a reaction to the very ineffective way it is dealt with outside the confines of these educational institutions.

Mr. Taylor was tasked with giving the audience some anecdotal evidence in the form of court cases where the accused was “probably innocent but still found guilty because of constraints of Title IX,” or found guilty but won an appeal. These cases exist, and yes, it is important to learn about them in order to have an educated discussion. However, this part of the presentation was where I found what is most problematic about the conservative view of campus sexual assault. There was a comical tone when discussing how we define consent, mostly harping on the idea that one has to ask every step of the way or be aware of positive and negative body language. There was a twisted tone of slut-shaming and victim-blaming when describing a case where a college woman went to a peer’s dorm room, was undressed in bed with him, said an assault occurred, and stayed the night and left the next morning; that one got audible laughs from many men and women in the audience that honestly made my stomach drop.

As if domestic violence against a partner is not a reality, or as if consenting to one sex act is consenting to all and revoking consent in the middle of sexual activity is not allowed. Both Professor Johnson and Mr. Taylor made light of the idea of consent and joked that if we used a modern definition of consent, then almost all sexual encounters of the people in the room would be considered assault. As if the definition of consent never needs to change over time; lest we forget, marital rape was not illegal until 1979. There was this disconnect between the deep, pain of victims and survivors and the policy surrounding sexual assault, a lack of empathy and a light heartedness brought to the topic that was inappropriate and disrespectful. One would not talk about another crime that way, but for some reason it is okay to discuss interpersonal violence in such a manner.

The moderator, Ana Samuel, a research scholar for The Witherspoon Institute, raised an interesting point that struck a chord with me. She read an excerpt from the book Forbidden Fruit: Sex and Religion in the Lives of American Teenagers. It reads:

In fact, 25 percent of adult women in one nationally representative study call their first experience of intercourse not wanted yet not forced (Laumann et al. 1994). In such confusing situations, adolescent girls seldom seek to prosecute the perpetrator. Rarer still are successful prosecutions. Kendra, a 14-year-old African-American evangelical from Washington, DC, describes such a scenario. “I didn’t know him: he didn’t know me. We just had a spur of the moment thing. It was something that really wasn’t. I wasn’t raped, but it was something that was taken more than given. It was about 20 percent given and 80 percent taken. Because it wasn’t something I was prepared to do. It was something that he wanted, and he got it.”

This experience is not uncommon for adolescents and young adults. Some critics would accuse Kendra of just feeling “regret.” Regret is different than the feeling that something is being taken from you without your offering it, different than not completely realizing what is happening until it is happening, different than running through the scenario over and over again trying to understand how you feel about it. Regret is when you hook up with someone 100 percent consensually and then wish you hadn’t for any number of reasons—your friend likes them, they turn out not to be a nice person, you’re not as attracted to them as you once were—but none of those reasons are “I did not want it, but they did, so they got it.” I personally understand what Kendra means when she says it was 80 percent taken, 20 percent given. Add alcohol and hook-up culture on college campuses and this kind of objectively, unhealthy, borderline sexual encounter on a regular basis.

Ms. Samuel asked the authors, how Kendra should respond to this situation, and how should the school be involved? Mr. Taylor’s response was that the school should have a counseling regime where such “bad behavior” is reported, and the aggressive party has to go through some type of counseling on healthy relationships. It is a form of “restorative justice without the threat of discipline” looming over administrators’, the “giving” party’s, and the “taking” party’s heads. At Princeton we have an office called Sexual Harassment/Assault Advising, Resources and Education (SHARE), where such actions can be taken, though for fear of being socially ostracized or that the accused might face disciplinary action, this particular use of the office is not always utilized. Mr. Taylor’s idea of restorative justice for gray areas such as Kendra’s case, where there is no force but it still teeters on the line of sexual assault, might be productive.

However, his further comments regarding the subject discredit the logical comments he made. He said that colleges and universities are “punishing males so harshly for doing what males have done since time immemorial.” Paired with his earlier comment about how men are accused of sexual assault when they are more sexually aggressive than a gentleman would be, these comments reveal and underlying problem with the way the issue of sexual assault is approached. This behavior is a symptom of a larger societal problem; it is the classic “boys will be boys” argument that excuses and dismisses inappropriate conduct.

Any points made that could bring the conversation forward are undermined by the attitude brought to the topic, an attitude that forces the conversation that was moving towards the middle ground so far backwards. This is not about liberals or victims being overly sensitive. This is not about harping on semantics, or “frank” speech being abrasive. Speech reveals attitudes. This is about an ideological disconnect between what is right and what is wrong, what is acceptable behavior in our society and what is not, and excusing historically acceptable behavior that is being spoken out against now.

I wish I had been able to articulate these thoughts at the event, but I was not prepared to speak up in the moment when I was purely absorbing information. I needed to digest the new information, and honestly, I was not prepared for the reaction of the audience if I were to ask a challenging question. All of the questions were confirming what the speakers said, not truly facilitating more discussion. Reflecting on the event, after the fact, here are a few things that the speakers ignored or could not fully explain.

1) How do we account for the historical reality that victims of sexual assault/violence have been silenced for so long? The rhetoric that I heard today, and the inappropriate response of some audience members and disrespectful tone adopted by Mr. Taylor almost feels like an attempt to push back against the reality that victims are speaking up and pointing to the problem of gender violence that is rampant in our society. As if their voices damage a particular power structure.

2) Many individuals in our society today are denied due process (one such instance they cited was the accused not being able to afford a good lawyer). So how is this issue different or the same as other situations where people are treated as guilty until proven innocent (de facto)? Would you make similar arguments for black men, who are more likely than all other groups to be falsely convicted? My first instinct is that this topic in particular is quite gendered, and is also complex because of the way it disproportionately affects the LGBTQ+ community. Does the identity of the accused play a role in the motivation of conservative institutions to focus on this issue?

3) In the presentation today, Professor Johnson claimed that the issue was not actually the preponderance of evidence being the standard, but that the colleges and universities do not have access to all the evidence before making their decisions. If the Obama era Title IX guidelines no longer apply to these hearings, I believe the first obvious move will be for the burden of proof to be raised to clear and convincing or even to beyond reasonable doubt. What should the standard of evidence be, and would that even make a difference in the due process issue? Wouldn’t increasing the burden of proof without adjusting the other factors first be detrimental to the fair process of the victim? Until the institutions have access to all evidence, the new regulations (or lack of clear regulations) will tip the scale in disproportionate the favor of the accused.

So, there it is. I went, and I listened to what Professor Johnson and Mr. Taylor said (albeit filled to the brim with anger at points). I do not write this from a place of self-righteousness, nor do I intend to pat myself on the back for challenging my views—attending to different viewpoints while quelling initial inflammatory reactions for the sake of learning is something we should all practice. But rather, I write this to share my experience of widening my view and knowledge on a topic I care about deeply. Listening to these authors speak strengthened some of my previous convictions while simultaneously giving me new ways to approach the issue as it relates to policy. I have a better understanding some of the problematic attitudes underlying the debate about sexual assault, Title IX, and due process, and how these attitudes lead to extremely divisive viewpoints.

I am better equipped to handle a debate about any of these topics, and more importantly, I can pinpoint disconnects in ideologies that need to be addressed before any progress can be made. And on the flipside, I can pinpoint overlaps in opinion that can be a starting point for fruitful discussions about how to take action against an issue that is more prevalent than we would like to admit—gender violence is no laughing matter, Mr. Taylor.


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