By Cathy Young
A panel on “Grappling with Campus Rape” was part of the “Hot Topic” program at the American Association of Law Schools annual meeting, held January 6-10 in midtown Manhattan. Indeed, that issue has been the focus of particularly intense polemics in academia. A number of law professors, even some with strong liberal feminist credentials, have spoken out against the campus rape panic and the push for harsher measures that they say trample on students’ rights. Late last year, 19 Harvard law professors signed a strongly worded letter denouncing the CNN-sponsored campus rape documentary The Hunting Ground for misrepresenting a case involving a Harvard Law School student.
In many corners of academe, any debate on the definition of rape or the credibility of accusations is regarded as thoughtcrime. When dissident feminist Christina Hoff Sommers addressed the subject in a talk at Georgetown last year, the campus newspaper, the Hoya, editorialized that “such discourse encourages rape denialism” and is “an insult to Georgetown’s survivors.” But the AALS panel, organized by University of Miami law professor and former public defender Tamara Rice Lave, was a decidedly unsafe space for those who find diversity of opinion traumatic.
Campus crybabies surely would have demanded a “trigger warning” before the remarks of University of Colorado law professor Aya Gruber, who opened by praising “the political energy of the anti-rape movement” for revitalizing a once-moribund feminism, but then delivered a strong critique of that movement. Gruber noted that in recent years, “publicity about rape culture and the campus rape crisis has created widespread anxiety over rampant rape committed by college men”—despite studies showing that sexual assault is on the decline and less prevalent on campus than off.
What Gruber memorably dubbed an “anti-rape culture” on campus doesn’t sound like a bad thing, and she acknowledged as much: “We should be rape-impermissive.” The problem, of course, is in how broadly the label “rape” is applied—sometimes even when it’s not used by the ostensible victims themselves. “If the studies stood for the fact that one in five students has drunk or regretted sex, or that one in four students has sex after ambiguous communication, we would not all be sitting here,” Gruber said. She pointed out the pitfalls of trauma-centered activism: “Law and policy should rightly be responsive to the trauma experienced by sexual victims. But the discourse that equates a broad range of bad college sex with life-ruining trauma has costs.”
These points aren’t new to those familiar with critiques of modern feminism; but it’s refreshing to hear them made by a self-identified academic feminist.
Remarkably, even some speakers in broad agreement with the “anti-rape culture” were critical of the current policy framework for addressing campus sexual violence. University of Kansas School of Law professor Corey Rayburn Yung, who believes campus rape is a large hidden problem, questioned the reliance on Title IX, which prohibits sex discrimination in education, for enforcing policies against sexual misconduct. He pointed out that this creates at least theoretical problems in dealing with same-sex assaults and in addressing off-campus attacks, and that sexual assault is a safety problem, not an equality problem.
An even bigger surprise was Mary Koss, the University of Arizona clinical psychologist and founding mother of feminist campus rape research: Her 1985 survey of college women first generated the “one in four” statistic for rape and attempted rape. Koss’s study was widely criticized, by Sommers and others, for classifying unwelcome or regretted sex related to alcohol or drug consumption as rape. Now, Koss herself is outspokenly critical of what she regards as seriously flawed research on campus sexual assault, including a recent Association of University Women study that included unwelcome kisses in its statistics.
While Koss favors having colleges handle sexual assault complaints, her primary interest is in “restorative justice,” which focuses on repairing harm and victim-informed redress rather than punishment. “It has been argued that these many sexual acts that violate student conduct codes do not rise to the level of rape,” Koss said, “and there is a good argument to be made that we should not be responding to them with the same process that we do to violent or repetitive rape, especially when an adversarial process is not what the victim wants.”
Koss also bluntly stated that the 2011 “Dear Colleague” letter from the Department of Education Office of Civil Rights, establishing guidelines for colleges in dealing with sexual assault complaints, was “an obstacle”: In her view, it “makes universities fear punishment if they try innovative approaches that don’t fit the mold.” Among other things, the guidelines forbid mediation in cases of sexual misconduct; while Koss stressed that restorative justice is not mediation, the ban is widely viewed as precluding such alternatives. “There is almost a blind faith in the government making things better,” Koss lamented during the question period toward the end of the session.
The panel also included defenders of the current system. City University of New York dean Michelle Anderson decried the “backlash” against allowing colleges to handle sexual assault complaints, pointing out that universities handle all kinds of offenses “from assault to serious plagiarism.” (Of course, plagiarism is not a criminal offense, and even assault does not carry the same emotional charge or stigma rape does.) Anderson also asserted that “the fact that there are lawsuits by accused men shows the system is working.”
Sejal Singh, a Columbia graduate and activist, said that she was sexually assaulted on campus and did not report it because she “knew a friend’s case was not handled well.” Nonetheless, she strongly advocated a campus-based process, arguing that the criminal justice system has many elements unfair to sexual assault victims (such as “antiquated force requirements”). Singh argued that due process concerns about Title IX proceedings were misplaced, since “the Constitution grants very limited due process rights to public school students facing suspension”—mainly the right to be notified—and college students are entitled to no more.
Somewhat implausibly, Singh also contended that “survivors and accused want the same thing” from campus courts: prompt proceedings, notification, the right to counsel, and “a fair process.” It was a particularly odd assertion given her view that nearly all accused men are guilty. Guilty or innocent, accuser and accused will almost certainly have a different notion of what “fair process” entails. To the accused, it probably means rules of evidence allowing him to call witnesses and cross-examine the accuser—something current rules strongly discourage.
The rebuttal to claims that “everything is working as it should” came from the final speaker: Joseph Roberts, a former Savannah State University student introduced by panelist Cynthia Garrett, an attorney with the pro-defendant Families Advocating for Campus Equality. It was likely no accident that the person speaking for the accused to this mostly liberal audience was a young black man from Georgia. Soft-spoken but visibly emotional, Roberts described receiving an email two weeks before his scheduled graduation informing him that he was being removed from campus due to a complaint of sexual assault: “If I returned, I would be subject to expulsion and arrest.” His case was never heard, and he never received his diploma. Roberts haltingly and reluctantly noted the devastating effect on his life: Shortly after being thrown out of college, he was brought to the hospital unconscious following a suicide attempt.
Roberts is now suing the school. “If my case is dismissed, I am prepared to deal with that,” he said, “but it will remove the rose-colored glasses from my eyes as far as the law.”
Call it rose-colored glasses, but I left the AALS panel with a new cautious optimism about the dialogue on campus sexual assault—if only because there was a dialogue, including sometimes contentious question and answer exchanges. There was even a willingness to challenge “rape culture” dogma and look for better solutions. A good place to start would be to discuss exploitative, emotionally damaging sexual encounters without calling them rape.