Nov 302015

E-lert: Save the Date for SAVE

Tomorrow is Giving Tuesday. We know your shopping lists are already getting crowded with holiday gifts and chestnuts for roasting!

But please consider adding a donation to SAVE to the list. Here’s why:

We really care! We work hard to make sure that the laws in our country fairly get the right results, while making sure constitutional rights are protected.

We work hard! In the past year we have tackled numerous legislative projects at both the state and federal level, with great successes! We’ve been racking up the trophies!

Our ‘we’ is small! We are mighty, but small! This means every dollar makes a difference! Smaller nonprofits are often overlooked as larger nonprofits have bigger ad and fundraising campaigns.

Please consider contributing to SAVE on our website, here:

SAVE by donating tomorrow!

Thank you, and truly yours,

Gina Lauterio, Esq., Policy Program Director
Stop Abusive and Violent Environments

P.S. Please take a moment to forward to a family member or friend.

Nov 232015

The Hunting Ground’s Questionable Rape Stat

Jesse Singal
November 23, 2015

The Hunting Ground, a documentary that aired on CNN Sunday night after garnering a great deal of publicity on the festival and campus circuits, tells some horrific stories about sexual assaults on college campuses, and in doing so it raises a number of important, damning questions about how campus administrators handle rape allegations. Unfortunately, it also presents some extremely questionable research about campus rape in far too credulous a light.

It’s probably important to get our controversies straight here. One set of criticisms leveled against The Hunting Ground has to do with its portrayal of an alleged rape involving Harvard Law School students. Both Emily Yoffe of Slate and a group of 19 HLS professors have argued that the film misrepresents the facts of that incident in important ways.

The social-science issue is separate, and it involves Dr. David Lisak, a retired clinical psychologist who has greatly influenced current anti-campus-rape efforts — his research has even been cited in materials published by the White House. Twenty-five minutes into the film, he lays out his general theory of the campus-rape problem: “The vast majority of men don’t rape, won’t rape, haven’t raped,” he says. “So when you start looking at, then, the rapists who are committing these crimes, it is the repeated offenders who are the core of this problem.” Text appears onscreen: “Less than 8% of men in college commit more than 90% of sexual assaults.” Additional text below cites the source for these numbers: a 2002 paper by Lisak and Dr. Paul M. Miller.
This claim marks an important tone-setting moment in The Hunting Ground, and it’s important to understand its ramifications. If Lisak, who is presented in the film as an authority on the subject of campus rape, is correct and the “core” of the campus-rape problem is serial offenders, then addressing campus rape mostly means targeting a very small slice of hardened predators who are committing an astounding proportion of the assaults that occur on a given campus. Obviously, attacking a rape problem like this would be different from attacking a rape problem in which assaults are distributed across a wider set of perpetrators.

But Lisak and Miller’s 2002 paper, published in Violence and Victims, is the only research providing empirical support for such an extreme version of this serial-rapist theory. And to call that paper “controversial” doesn’t capture the half of it.

Here’s the short version: Miller and Lisak’s data are drawn from surveys conducted of 1,882 men at UMass-Boston, a commuter school with no campus housing in which the men were asked if they had ever raped someone or attempted to rape someone. This was not a group of traditional undergraduates — the average age of those surveyed was 26.5, with the range running from 18 all the way to 71. “More than 20% were over age 30, and nearly 8% were over 40,” the authors noted. Most of these men probably weren’t full-time students, since UMass-Boston is largely oriented toward part-timers. Moreover, as Robby Soave of Reason reported in July, it’s not even clear that all of the men surveyed were even students at all. Lisak and Miller didn’t collect their own data, but rather adapted data that had been previously collected by other researchers for other purposes over a number of years prior to the publication of their paper. These researchers had handed out surveys at “main pedestrian traffic points on campus” at UMass-Boston (respondents who filled out a survey got a few bucks for their efforts) but, according to Soave’s reporting, never checked whether the respondents were actually students, because for the purposes of the data they were collecting it didn’t matter.

Setting aside the fact that it’s unclear how many non-students were surveyed, it’s also hard, from the point of view of understanding campus rapists, to even interpret the rapes that were reported, given UMass-Boston’s lack of campus housing and campus social life like the sort found at more traditional schools. If a 29-year-old part-time commuter student says that, yes, in his life he has raped someone, that obviously doesn’t make the rape itself any less egregious, but it’s difficult to assess whether the rape can be seen as connected to his life as a college student at all. It would be a stretch, in other words, to describe him as a “college” or “campus” rapist without knowing more. The authors themselves certainly seemed to understand that: “There is not a single statement in the paper about assaults taking place on or near a campus; there is not a single reference to the campus environment,” wrote Linda M. LeFauve, who has also raised important questions about Lisak’s research in Reason.

In short, Lisak and Miller’s study has very little to do with the conversation about sexual assault The Hunting Ground is concerned with. The respondents were older, differed in meaningful ways from “traditional” college students, and may well have been mostly reporting rapes that had nothing to do with college anyway. From a research perspective, it’s often dangerous to extrapolate the results of a single survey to a broader population; in this case, to say the UMass-Boston numbers can be applied to college students on the whole is quite irresponsible, especially in light of the lack of other published findings that back up Lisak’s serial-predator theory. “I am not familiar with any research that corroborates or replicates David Lisak’s findings,” Christopher Krebs, a well-known sexual-assault researcher at RTI international, said in an email.

And yet this baseless statistic caught on, spread like wildfire, and has been cited not just by the White House and the producers of The Hunting Ground, but by countless other activists and academics as well. As Yoffe has pointed out, Lisak has contributed to the misunderstanding by propagating the notion that his research can be extrapolated to the broader college population, despite the fact that he and Miller explicitly cautioned that their research “cannot be interpreted as estimates of the prevalence of sexual and other acts of violence” on a campus or anywhere else because of the lack of a random sampling procedure. (Lisak downplayed this caveat to Yoffe as “a standard disclaimer for any study.”)

In addition to the numerous problems with the Lisak-Miller study, a more recent, rigorous attempt to understand campus rapists turned up very different results anyway. In July, JAMA Pediatric published a paper by a group led by Dr. Kevin M. Swartout that highlighted the popularity of the serial-perpetrator theory and the thinness of evidence behind it (“Although the serial rapist assumption is widely taken as fact by politicians and the popular press, it appears to be premised on a single source”), and then proceeded to use the “2 largest existing longitudinal samples of college men’s sexual violence,” each sample drawn from students at one university (both in the same region of the country) and adding up to 1,645 respondents total, to test that theory.

Swartout and his colleagues looked at their data in a slightly different way than Lisak and Miller did; they found that of the men in their sample who committed at least one completed act of penetrative rape (about 11 percent of the sample), 75 percent only did so during one academic year. “Although a small group of men perpetrated rape across multiple college years, they constituted a significant minority of those who committed college rape and did not compose the group at highest risk of perpetrating rape when entering college,” the authors write. Therefore, their data suggest that “at least 4 out of 5 men on campus who have committed rape will be missed by focusing solely” on serial offenders of the sort highlighted by Lisak and Miller. No one survey can tell the whole story, of course, but these numbers strongly suggest a more sophisticated, nuanced approach is needed.

This gets to the heart of why Lisak’s viral zombie statistic is so damaging: It simply leads people astray. No one is arguing that serial sexual predators don’t exist in college settings. But there’s startlingly little evidence for Lisak’s claims that they commit the vast majority of rapes on campus. Rather, it appears that for whatever reason — and this is where further research is so crucial — many men in college are capable of committing rape in a “limited” (for lack of a less terrible term) manner. And yet for years, Lisak and Miller’s paper has served as a flashing neon light pointing researchers and activists in what is very likely the wrong direction. This could go down as a major scientific misstep.

The Hunting Ground’s producers aren’t the first people to have become morbidly enamored with David Lisak’s serial-rapist theory, but it’s unfortunate, given the reach and influence of their film, that they did.


Nov 232015

Sex, Lies, and Justice

Nancy Gertner

Campus sexual assaults are horrifying, made all the worse because the settings are bucolic and presumed safe—leafy campuses, ivy-walled universities. Assaults are reported in dormitories, off-campus apartments, and fraternity houses, in elite and non-elite institutions, from one end of the country to the other. Title IX (of the Education Amendments of 1972) was supposed to promote equal opportunity in any educational program receiving federal money. But until recently, Title IX was dormant and largely ignored. The enforcer, the federal government, had been a paper tiger. Universities were not reporting, much less dealing with, either sexual harassment or explicit sexual violence. Sexual misconduct impairs a woman’s ability to function as an equal in an academic environment—and by extension menaces all women. Unless a woman is safe, all the other guarantees of equal treatment are irrelevant.

In 2011, the government’s approach changed dramatically: A “Dear Colleague” letter on sexual violence was sent to colleges and universities from the Department of Education’s Office for Civil Rights (OCR), pointedly reminding them of their obligations under Title IX and presaging aggressive enforcement. By August 2013, the public face of the department’s enforcement efforts was Catherine Lhamon, assistant secretary at the Office for Civil Rights, a zealous advocate, formerly head of impact litigation at Public Counsel, a public interest law firm; before that, she was assistant legal director of the ACLU of Southern California. At a July 2014 meeting of college administrators, Lhamon made the threat of disciplinary action unmistakable: While no school accused of violating Title IX had ever lost its federal funding, “do not think it’s an empty threat,” she warned them. A department website announced the campaign against sexual violence on campus, Not Alone. President Barack Obama, in a January 25, 2014, speech, assured his listeners that “anyone out there who has ever been assaulted: You are not alone. We have your back. I’ve got your back.” Even the department’s language changed, no longer referring antiseptically to a complainant and an accused but rather to victims or survivors, and perpetrators.

To feminists—I among them—it was about time that pressure was brought to bear on educational institutions. Too often colleges and universities had excused or turned a blind eye to the crimes of serial sexual predators. The media, after often dismissing the claims of rape victims, was finally more sympathetic, covering accounts of sexual violence from the University of Virginia to Yale and Harvard. This kind of sustained attention was precisely what was needed to come to grips with the problem. Nothing less would have done the trick. Indeed, nothing had worked before. It was as if women, especially young women, had to speak especially loudly and especially often to finally be heard—a not unfamiliar concept.

President Barack Obama signs the Campus Sexual Assault Presidential Memorandum during a White House Council on Women and Girls meeting in the East Room of the White House, Jan. 22, 2014.

The problem was that the issues surrounding campus sexual assault were more complicated than the public debate reflected. How were universities and colleges to deal with the range of campus sexual encounters—a continuum from violent rape, to sex fueled by alcohol impairing all involved, to the expectations about women and men in the so-called “hookup culture,” to consensual sex followed by second thoughts. (At least one feminist scholar, Catharine MacKinnon, has expressed skepticism that a woman could ever voluntarily have sex, given the disparate power relations between men and women in society.) There are plenty of bright lines such as forcible rape—but also blurry ones. Genuine ambivalence and ambiguous signals seem almost inherent in courtship and sexuality, especially in first encounters. Where should the Title IX violation line be? What was a reasonable adjudication process? What was the role of the criminal justice system in cases in which university conduct codes overlapped with possible prosecutions?

Further, how were colleges and universities to balance the interests of the complainant with those of the accused? Just as the complainants must be treated with dignity and their rights to a fair resolution of their charges be respected, so too must those accused of sexual misconduct. You don’t have to believe that there are large numbers of false accusation of sexual assault—I do not—to insist that the process of investigating and adjudicating these claims be fair. In fact, feminists should be especially concerned, not just about creating enforcement proceedings, but about their fairness. If there is a widespread perception that the balance has tilted from no rights for victims to no due process for the accused, we risk a backlash. Benighted attitudes about rape and skepticism about women victims die hard. It takes only a few celebrated false accusations of rape to turn the clock back.

I come to this issue—campus sexual assault—from all sides. This is not because I was a federal judge for 17 years, where “considering all sides” was part of the job definition. I left the bench in 2011 to teach at Harvard Law School, among other things. I am an unrepentant feminist, a longtime litigator on behalf of women’s rights, as my memoir, In Defense of Women, reflects. Rape, I insisted, is a crime to which women—including me—feel uniquely vulnerable, no matter who they are, no matter what their class, their race, their status. No one should have been surprised that I supported stronger enforcement of Title IX, more training for investigators, more services for complainants, systematic assessments of the state of enforcement on college campuses, and other tough remedies. What surprised many, however, was that I was one of 28 Harvard professors who signed a letter opposing Harvard University’s new sexual harassment and sexual assault policies, policies introduced ostensibly in response to pressures from the Department of Education.

When I was a lawyer, I understood how inadequate the law was in addressing sexual violence at all. I worked for changes to the retrograde definition of rape in statutes around the country and their disrespectful treatment of rape victims, laws that were a throwback to medieval conceptions about women. I lobbied for rape shield laws that limited the defense counsel’s cross-examination of a woman about her prior sexual experiences. So little did the law trust a woman’s account of rape that some states required that a woman’s accusations be corroborated by independent evidence, a requirement to which no other crime victim was subject. The definition of the crime focused on the woman’s conduct, whether she had resisted “to the utmost;” a simple “no” did not suffice. To the extent that the man’s conduct was considered at all, the statutes required that he use force before his acts amounted to rape; drugging a woman, or having sex with one wholly incapacitated by alcohol, was not enough. And date rape was never prosecuted no matter what the circumstances.

But I was also a criminal defense lawyer. I understood more than many how unfair the criminal process could be, how critical the enforcement of a defendant’s rights were to the integrity and, even more, to the reliability of the criminal justice system. I understood what it meant to have a defendant’s liberty hanging in the balance, how long terms of imprisonment could wreak havoc on the lives of defendants and their families. I appreciated the stigma of the very accusation, which persists—especially today on the Internet—even if the accused is exonerated. And I understood the racial implications of rape accusations, the complex intersection of bias, stereotyping, and sex in the prosecution of this crime.

I reconciled the pressures pushing me in opposite directions by choosing not to represent men accused of rape, while bringing civil lawsuits for women against the universities or the building owners that failed to provide them with adequate security, or against psychiatrists and psychologists who sexually abused them. I steered clear of prosecutions for rape—except for one case.

A young man, a freshman at a local college at the time the incident happened and a friend of a former roommate of mine, was referred to me. (In my memoir, I call him “Paul.”) He’d had sex with a classmate, his very first sexual encounter; he believed his classmate had consented. And while we can never know what went on between them, the facts—her actions, her words, the testimony of others—made her charges wholly unconvincing. A few examples: She went out of her way to invite him to her parents’ home a short time after the sex to stay for the weekend. Nine months after their sexual encounter, she claimed to have been raped and mentioned his name following the breakup of a different relationship and her hospitalization for depression. She accused Paul during a conversation with her father, but accused another male student while speaking to a classmate. Witnesses reported nothing out of the ordinary that evening, no evidence of drinking, no impairment, not even anxiety about what had occurred. Her account itself was improbable, internally inconsistent, and contradicted by the evidence and the testimony of her own classmates. While from decades of work on rape and my women’s rights advocacy, I understood that this young woman could be telling the truth—that her behavior in the days and weeks after the sex, and even her multiple accounts of what went on, could be explained by post-traumatic stress disorder, or simply embarrassment—her account seemed unlikely.

The Phi Kappa Psi fraternity house at the University of Virginia has been the scene of numerous protests since the report of an alleged gang rape at one of its parties. This demonstration on Saturday night, November 22, 2014, was in response to the university’s reaction to a controversial Rolling Stone article on the allegations.

By the late 1980s, when the accusations against Paul were brought, the women’s movement had succeeded in making some of the changes for which I and others had fought. The popular media finally reported on the horror of date rape and its consequences. District attorneys and police belatedly began to prosecute the offense. The definition of rape changed in states across the country, although progress was far from uniform. Gone was the mandatory corroboration requirement and limitless attacks on a woman’s “chastity,” whatever that meant in the late 20th century. Still, we were a long way from adequately dealing with these issues. There were many jurisdictions where change came slowly or not at all, where prosecutors and even courts not so subtly sided with perpetrators and blamed victims.

While I believed that Paul had been wrongly accused, and would be exonerated, true to my practice I declined to represent him. I asked one of my law partners to step in, and then watched with horror as the prosecution unfolded.

The atmosphere surrounding date rape had changed more dramatically than I had appreciated, at least in Massachusetts. The district attorney, though he fully understood the weaknesses of the case, felt compelled to bring the charges lest he face political repercussions, for being yet another politician ignoring a woman’s pain. Even the grand jury ignored their serious doubts about the case and indicted Paul. As I later learned from one of its members, they felt comfortable indicting Paul because I was rumored to be representing him and they assumed he would be acquitted. And the judge—with life tenure—likewise felt the pressure. The judge was critical; my partner decided to waive the jury when a program on date rape was aired on the eve of the trial. While the judge expressed his skepticism throughout the trial—every single comment of his pointed to reasonable doubt about Paul’s guilt—his verdict was “guilty.” He did not say so explicitly, but the message seemed clear. If he acquitted Paul, he would be pilloried in the press. “Judge acquits rapist,” the headlines would scream. But if he convicted Paul, no one would notice.

I took over the appeal. The brief my firm filed was what I described as a feminist brief: Just because the legal system has moved away from the view that all rape accusations are contrived does not mean it must move to the view that none are. This conviction was not just technically imperfect, I argued, it was a true injustice. I was successful. The Massachusetts Supreme Judicial Court reversed Paul’s conviction on a procedural error, the trial court’s evidentiary rulings. The prosecutor could have retried the case, but, thankfully, chose not to do so.

After decades of feminist advocacy (the case establishing the right to choose abortion in Massachusetts, the first introduction of Battered Woman Syndrome in a defense to a murder charge, and on and on), I was picketed by a women’s rights group when I spoke on a panel following the reversal of Paul’s case; I was a “so-called women’s rights attorney,” one sign announced, simply because I had represented a man accused of rape. When I explained why, including the fact that I believed he was innocent, a demonstrator yelled, “That is irrelevant!” The experience was chilling; to the picketers, a wrongful conviction and imprisonment simply did not matter. Paul would have been incarcerated, but for my firm’s advocacy and the appellate court’s independent review. Still, advocacy and appellate review could only go so far: Though the charges against Paul were dropped, he was expelled from the college he had been attending; he struggled to reapply years later and finally get his degree. Worse yet, he continues to suffer from the stigma of the accusation to this day, many, many decades later.

As a federal judge, I did not have much occasion to address the issues with which I had been so concerned as a lawyer. Rape is principally a state, not federal, crime. I did deal with accusations of sexual harassment in the workplace, fully appreciating the extent to which sexual harassment obstructs equal opportunity and discriminates against women. I wrote articles decrying the state of civil rights enforcement in the federal courts. And on the criminal side, while I did everything I could to mitigate the harsh effects of onerous drug sentencing, I had no problem sentencing sex traffickers as harshly as the law allowed.

Still, I could not forget Paul’s case. It shaped the context in which I saw the university sexual assault controversy. As in the ’80s, women mobilized against institutions that had woefully failed to deal with sexual violence and sexual harassment. While the movement had successfully raised public awareness about violence and harassment in homes, on the streets, and in workplaces, many police, prosecutors, and courts were stuck in an earlier era of victim-blaming. And progress seemed to have stalled at the doors of the academy, where at least some institutions still dissuaded women from bringing complaints while they shielded alleged perpetrators.

In the summer of 2014, Harvard issued its new Sexual Harassment Policy and Procedures. It contained both new procedures for when students are accused of Title IX violations and new definitions of the covered conduct. While ostensibly in response to the Office for Civil Rights’ pressures, they were released without OCR’s approval. In some respects, they go beyond what the 2011 “Dear Colleague” letter spelled out.

The Harvard University logo is inscribed with the Latin word for “truth.”

OCR has clearly mandated that universities and colleges evaluate accusations of rape under a preponderance of the evidence standard. A preponderance of the evidence is in fact the lowest standard of proof that the legal system has to offer. In effect, if the evidence leans in favor of the victim to any degree, say 50.01 percent, that is sufficient. OCR’s rationale was that this was the standard for suits alleging civil rights violations, like sexual harassment. True enough, except for the fact that civil trials at which this standard is implemented follow months if not years of discovery—where each side finds out about the other’s case, knows the evidence and the accusations, and has lawyers to ask the right questions. Not so with the new Harvard regime, which has no lawyers, no meaningful sharing of information, no hearings. It is the worst of both worlds, the lowest standard of proof, coupled with the least protective procedures.

The new standard of proof, coupled with the media pressure, effectively creates a presumption in favor of the woman complainant. If you find against her, you will see yourself on 60 Minutes or in an OCR investigation where your funding is at risk. If you find for her, no one is likely to complain.

But Harvard’s new policy goes further than OCR’s mandated preponderance standard. Harvard establishes a fact-finding process that takes place entirely within the four corners of a single office, the Title IX compliance office. The Title IX officer has virtually unreviewable power from the beginning of the proceeding to its end. The officer deals directly with the complaining witness, advises her, determines if the case should be investigated, proceeds to an informal or to a formal resolution. If there is a formal investigation, the Title IX officer appoints and trains the “Investigative Team,” which consists of one investigator, who is also an employee of the Title IX office, and a designee of the school with which the accused is affiliated. The investigative team notifies the accused of the written charges, giving him one week to respond. While he has a short deadline, there is no time limit for the complainant’s accusations, no period of time within which she must complain—what the law calls a statute of limitations.

Thereafter, the team interviews the parties and, if it deems appropriate, witnesses identified by the parties as well as any others it decides to consult. The team issues a final report on a preponderance standard and working jointly with the Title IX officer—who was in fact involved in the investigation throughout—may provide recommendations concerning the appropriate sanctions to the individual schools. There is an appeal, but it is to that same Title IX officer and only on narrow grounds. While the final sanction is determined by the individual school, the fact-findings on which that sanction is based—this critical administrative report—cannot be questioned.

As the letter of the 28 faculty members noted, this procedure does not remotely resemble any fair decision-making process with which any of us were familiar: All of the functions of the sexual assault disciplinary proceeding—investigation, prosecution, fact-finding, and appellate review—are in one office, we wrote, and that office is a Title IX compliance office, hardly an impartial entity. This is, after all, the office whose job it is to see to it that Harvard’s funding is not jeopardized on account of Title IX violations, an office which has every incentive to see the complaint entirely through the eyes of the complainant.

Nothing in the new procedure requires anything like a hearing at which both sides offer testimony, size up the respective witnesses, or much less cross-examine them. Nothing in the new procedure enables accuser and accused to confront each other in any setting, whether directly (which surely may be difficult for the accuser) or at the very least through their representatives. Nor is there any meaningful opportunity for discovery of the facts charged and the evidence on which it is based; the respondent gets a copy of the accusations and a preliminary copy of the team’s fact findings, to which he or she can object—again within seven days, a very short time—but not all of the information gathered is necessarily included. Everything is filtered through the investigative team, which decides the scope of the investigation, the credibility of witnesses, and whom to interview and when.

Nothing in the OCR’s 2011 “Dear Colleague” letter called for a proceeding remotely like this. Indeed, the letter underscored the need for an “adequate, reliable and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence,” and to have access to any information that would be used at the “hearing.” And while the 2014 White House “Not Alone” report mentioned that some schools had a “single, trained investigator” doing “the lion’s share of fact finding,” as in Harvard’s policy, it did not—and I would argue, should not—require such an approach.

Nor is there any meaningful role for lawyers in the Harvard policy. The parties may use a “personal adviser” who can be a lawyer, but that adviser may not speak for their advisees at the only relevant stage in this policy, the interview with the investigative team, “although they may ask to suspend the interviews briefly if they feel their advisees would benefit from a short break.” (Indeed, this description sounds like a grand jury proceeding, which is notoriously one–sided, controlled entirely by the prosecutor with no role for the defendant’s lawyer, within the hearing room.) Harvard makes no provision for representation of the accused, particularly for students unable to afford counsel, as the letter of the 28 professors notes. Richer students will have lawyers; poorer students will not. Nothing should prevent a university with Harvard’s resources from providing lawyers for those who cannot afford them, as, for example, Columbia University does. In contrast, the complainant has advisers and advocates from the Title IX office at the outset of the proceeding, advocates especially provided for under the policy. The respondents are left to their own resources.

As the 28 law school faculty members’ letter noted, even the definition of the misconduct is skewed. The new Harvard standards governing sexual conduct between students when both are impaired or incapacitated are “starkly one sided” and “inadequate to address the complex issues involved in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.” “Impairment” and “incapacitation” are not the same, under the law. Sex with an individual who is incapacitated or unconscious, who does not understand what is happening, is plainly egregious, and is rape by any modern definition. But “impairment” because of alcohol is surely a different matter. Worse yet, the policy is not equally applied: The accused’s “impairment” based on drugs or alcohol is not at all relevant; it is not an argument for his “diminished capacity” as it might be under the criminal law of some jurisdictions. Instead, the policy treats him as if he were fully sober, fully responsible for his acts. The complainant’s “impairment” is another matter. If both parties are drunk, but not unconscious, not incapacitated, and only impaired by their drinking, and they have sex, only he is responsible under Harvard’s policy.

In fact, there is no reason to believe that the students themselves define what Professor Janet Halley of Harvard Law School calls “drunk/drunk” cases as rape at all. While 10 percent of female MIT undergraduates in a recent study identified themselves as having “been sexually assaulted,” 44 percent reported having sex while being incapacitated by drugs or alcohol. Plainly, some of the students did not regard sex under those circumstances as sexual assault. The unfairness of this policy is nowhere clearer when the misconduct allegations are also the subject of a criminal investigation. The policy requires that the respondent be advised to get a lawyer—again on his own dime—before he provides any statement, but the investigation may well proceed at the discretion of the Title IX office. And should that investigation continue—given his silence—he stands a good chance of losing the disciplinary proceeding and being subject to academic sanctions. At the same time, should a legal prosecution end with dismissed charges or an acquittal, there is no provision for a reconsideration of the academic sanctions.

Sexual assault advocates will argue that this is as it should be. It will be traumatic for the complainant to confront her accuser, even if only through her representatives rather than directly. It will be traumatic for the complainant to be asked to repeat her story over again. A speedy resolution is critical to her recovery, they would suggest. These arguments, however, assume the outcome—that the complainant’s account is true—without giving the accused an opportunity to meaningfully test it. However flawed, the way we test narratives of misconduct—on whichever side—is by questioning the witness, by holding hearings, by sharing the evidence that has been gathered, by giving everyone access to lawyers, by assuring a neutral fact-finder. While we know from the Innocence Project that even these “tests” can produce wrongful convictions, they are at least more likely to produce reliable results than the opposite—a one-sided, administrative proceeding, with a single investigator, judge, jury, and appeals court.

Indeed, the Office for Civil Rights has agreed to investigate a claim of a wrongful accusation of sexual assault at Brandeis University. A male student was found guilty of assaulting his ex-lover, also a man. He claims that the school’s investigation was skewed, that he was not permitted to respond fully to the accusations, that his accuser had counsel while he did not, and that his counter allegations were not sufficiently credited in Brandeis’s investigation. In effect, the complainant is arguing that a flawed, unfair process undermines his Title IX rights to equal participation in university life. While all of the details of the Brandeis complaint are not clear at this time, to the extent that Harvard’s new procedures mirror those of Brandeis, Harvard may also be vulnerable to wrongful-accusation charges.

Some will say that all of this shows that a university has no business at all dealing with sexual misconduct accusations, which amount to a crime. The police should be called; the sanction should not simply be suspension or expulsion but prison. And in a criminal trial, there is no question about due process; the accused has the benefit of all the rights guaranteed in the Constitution. Indeed, Yale Law Professor Jed Rubenfeld argues that recourse to university remedies rather than a criminal prosecution for rape trivializes the offense, and may even enable serial predators to get away with their crimes.

Yet women are right to be skeptical about the criminal justice system—about full-blown criminal trials and appeals and the toll they take on witnesses and accusers, about the higher standard of criminal proof, beyond a reasonable doubt, which, though justified by the risk of imprisonment, can leave many claims un-redressed. To be sure, there is overlap between the two—when a student accused of misconduct under Title IX is also vulnerable to a criminal prosecution—but they cannot be mutually exclusive. In any event, Title IX’s definition of sexual misconduct and sexual harassment is appropriately broader, more nuanced than even the recent statutory definitions of rape. While the colleges and universities abandoned their role as parens patriae (de facto parents) decades ago, in a sense, Title IX has invited them back in, policing sexual activities and misconduct—although, according to some commentators, not paying enough attention to the conditions that make that misconduct possible, like alcohol and drugs. Still, just because prison is not a risk hardly means that Title IX disciplinary proceedings are without serious consequences for those accused, and surely does not justify a process as one-sided as is Harvard’s.

At Oberlin College, administrators worked with students to arrive at a policy for adjudicating campus sexual assault cases that has stronger due-process protections than Harvard’s.

There are plainly other options, other ways of protecting the rights of both students who bring complaints and of those they accuse. The policy adopted by Oberlin College offers an instructive counter-example. This is all the more interesting, since Oberlin has a reputation as a left-wing and politically correct college. Indeed, the college was widely ridiculed last year when a professor proposed a conduct code requiring teachers to give “trigger warnings” when a class included material that might upset some students. (Oberlin quickly shelved that proposal.) Yet Oberlin’s procedure on sexual misconduct may be a model for other schools.

Oberlin has devised a symmetrical due process proceeding. In language suggested by the students, the parties to the case are termed “reporting party” and “responding party” rather than victim and perpetrator. After a preliminary assessment, designed both to provide support to the complainant and to determine whether there is reasonable cause to move to a fact-finding panel, a disciplinary proceeding may be called. Both parties may present information, call witnesses, and, in lieu of a cross-examination, may forward questions that they want the panel to ask the other party. The three panelists are trained administrators, none of whom is part of the Title IX office. “That would be a conflict of interest,” says Meredith Raimondo, Oberlin’s Title IX director. In the event that punishment is meted out, the responding party has the right of appeal to the dean of students, who is also not affiliated with the Title IX office. If the complainant feels the outcome is unfair, she may also appeal. This policy was created by a task force that included students, faculty, and administrators meeting over the course of 18 months. “We feel there can be great harm when the process is seen as biased against reporting parties,” says Raimondo, “and there can be great harm when it is perceived to be biased against responding parties.”

Feminists should be concerned about fair process, even in private institutions where the law does not require it, because we should be concerned about reliable findings of responsibility. We put our decades-long efforts to stop sexual violence at risk when men come forward and credibly claim they were wrongly accused. We put our work at risk when the media can dredge up the shibboleths about false accusations of rape, a collective “We told you so” tapping into old attitudes. The recent feeding frenzy around Rolling Stone’s account of a gang rape at the University of Virginia campus shows just how much damage can be done by the claim that a rape report was flawed—damage to the women making the accusations, to the men who are accused, and to the cause of combating sexual violence.

There is no question that we have to confront sexual misconduct on campus and elsewhere as aggressively and comprehensively as we can. There is no question that we have to lift the protection offered the star athlete, confront the administrators more concerned with the man’s future than with a woman’s trauma, challenge the atmosphere of impunity at fraternity houses and social clubs. And we can do so without turning every disciplinary proceeding into a full-blown trial, without imposing the maximum due process protections, on the one hand, or an administrative Star Chamber, on the other. It isn’t necessary to jettison every modicum of a fair process to redress decades-long inattention to these issues. It never is. As I argued in Paul’s case, we should not substitute a regime in which women are treated without dignity for one in which those they are accusing are similarly demeaned. Indeed, feminists should be concerned about fair process, not just because it makes fact-findings more reliable and more credible, but for its own sake.


Nov 212015

The Hunting Ground on CNN: The Influential Documentary Put Advocacy Ahead of Accuracy

Emily Yoffe
November 20, 2015

This Sunday evening, CNN will air The Hunting Ground, a documentary it co-produced. Since its theatrical release in February, the film has played a controversial role in the national debate about sexual assault on college campuses. In June, Emily Yoffe investigated one of the central cases in the film and found a very different story than the one presented by The Hunting Ground. The article is reprinted below:

1 A Film With Outsized Influence

The recent documentary The Hunting Ground asserts that young women are in grave danger of sexual assault as soon as they arrive on college campuses. The film has been screened at the White House for staff and legislators. Senate Democrat Kirsten Gillibrand, who makes a cameo appearance in the film, cites it as confirmation of the need for the punitive campus sexual assault legislation she has introduced. Gillibrand’s colleague Barbara Boxer, after the film’s premiere said, “Believe me, there will be fallout.” The film has received nearly universal acclaim from critics—the Washington Post called it “lucid,” “infuriating,” and “galvanizing”—and, months after its initial release, its influence continues to grow, as schools across the country host screenings. “If you have a daughter going to any college in America, you need to see The Hunting Ground,” the MSNBC host Joe Scarborough told his viewers in May. This fall, it will get a further boost when CNN, a co-producer, plans to broadcast the film, broadening its audience. The Hunting Ground is helping define the problem of campus sexual assault for policymakers, college administrators, students, and their parents.

The film has two major themes. One, stated by producer Amy Ziering during an appearance on The Daily Show, is that campus sexual assaults are not “just a date gone bad, or a bad hook-up, or, you know, miscommunication.” Instead, the filmmakers argue, campus rape is “a highly calculated, premeditated crime,” one typically committed by serial predators. (They give significant screen time to David Lisak, the retired psychology professor who originated this theory.) The second theme is that even when school administrators are informed of harm done to female students by these repeat offenders, schools typically do nothing in response. Director Kirby Dick has said that “colleges are primarily concerned about their reputation” and that “if a rape happens, they’ll do everything to distance themselves from it.” In the film, a former assistant dean of students at the University of North Carolina, Melinda Manning, says schools “make it difficult for students to report” sexual assault in order to avoid federal reporting requirements and to “artificially keep [their] numbers low.”

One of the four key stories told in the film illustrates both of these points. It is the harrowing account of Kamilah Willingham, who describes what happened during the early morning hours of Jan. 15, 2011, while she was a student at Harvard Law School. She says a male classmate, a man she thought was her friend, drugged the drinks he bought at a bar for her and a female friend, then took the two women back to Willingham’s apartment and sexually assaulted them. When she reported this to Harvard, she says university officials were indifferent and even hostile to her. “He’s dangerous,” she says in the film of her alleged attacker, as she tries to keep her composure. “This is a rapist. This is a guy who’s a sexual predator, who assaulted two girls in one night.” The events continue to haunt her. “It’s still right up here,” she says tearfully, placing a hand on her chest.

In multiple interviews, the filmmakers have said that they rigorously vetted all of the stories they present in The Hunting Ground. They also acknowledge that they are advocates fighting for a cause. Dick, in an interview with a campus newspaper, said, “I see myself as both an activist and a filmmaker.” In the Boston Globe, when Ziering was asked what people can do for victims of sexual assault, she said, “You can believe the survivors.”

An allegation of sexual assault is a grave one. If proven true, it can rightly end a perpetrator’s education and send him to prison. Because the stakes are so high, it is crucial, in telling stories of sexual assault, not to be blinded by advocacy, but to fairly examine the assertions of both sides. Despite the filmmakers’ assurances, The Hunting Ground fails in this regard. I looked into the case of Kamilah Willingham, whose allegations generated a voluminous record. What the evidence (including Willingham’s own testimony) shows is often dramatically at odds with the account presented in the film.

“I see myself as both an activist and a filmmaker”
Kirby Dick, director of The Hunting Ground, to a campus newspaper.
Willingham’s story is not an illustration of a sexual predator allowed to run loose by self-interested administrators. The record shows that what happened that night was precisely the kind of spontaneous, drunken encounter that administrators who deal with campus sexual assault accusations say is typical. (The filmmakers, who favor David Lisak’s poorly substantiated position that our college campuses are rife with serial rapists, reject the suggestion that such encounters are the source of many sexual assault allegations.) Nor is Willingham’s story an example of official indifference. Harvard did not ignore her complaints; the school thoroughly investigated them. And because of her allegations, the law school education of her alleged assailant has been halted for the past four years.

The Hunting Ground does not identify that man. His name is Brandon Winston, now 30 years old. Earlier this year, he was tried in a Massachusetts superior court on felony charges of indecent assault and battery—that is, unwanted sexual touching, not rape. In March, he was cleared of all felony charges and found guilty of a single count of misdemeanor nonsexual touching. Following the trial, the Administrative Board of Harvard Law School, which handles student discipline, reviewed Winston’s case and voted to reinstate him. This fall, he will be allowed to complete his long-delayed final year of law school.

Like most journalists and critics, I first wrote about The Hunting Ground on Feb. 27 of this year, the day the film made its theatrical debut, and did so unaware that, the same week, the unnamed man Willingham calls a rapist was standing trial in Middlesex County on the charges stemming from her criminal complaint. I learned of Winston’s trial when a juror contacted me after it concluded to express dismay that Winston had been forced to stand trial—and had faced potential jail time—for what she saw as a drunken hook-up. Winston declined to talk with me directly, but I spoke extensively with Norman Zalkind, the lawyer who represented him at trial.

The makers of The Hunting Ground say they gave the young men implicated in the film a chance to comment, and none responded. But it wasn’t until February, a month after the documentary made a celebrated debut at the Sundance Film Festival, that Winston says he was first contacted by a representative for the film. He referred this person to Zalkind, who says he never heard from anyone representing The Hunting Ground. I contacted Kirby Dick to talk to him about the Willingham case. He declined to speak with me, but asked for a list of written questions. I sent him my questions by email, and he replied, “After careful consideration I respectfully decline.” I also contacted CNN to discuss the case. A representative did not respond to a request for comment.

The filmmakers present what happened between Kamilah Willingham and Brandon Winston as a terrifying warning to female college students and their parents, and a call to arms to government officials and college administrators. They offer the case as prima facie evidence that draconian regulations, laws, and punishments are required to end what they say is a scourge of sexual violence. But there is another story, which the filmmakers do not tell. It’s a story in which Willingham’s accusations are taken seriously and Winston’s actions are thoroughly investigated, first by Harvard University and later by the Middlesex County district attorney’s office. It’s a story in which neither the school nor the legal system finds that a rape occurred, and in which Willingham’s credibility is called seriously into question. It’s a story of an ambiguous sexual encounter among young adults that almost destroyed the life of the accused, a young black man with no previous record of criminal behavior. It’s a story that demonstrates how deeply the filmmakers’ politics colored their presentation of the facts—and how deeply flawed their influential film is as a result.

2 The Night in Question

Kamilah Willingham, now 28 years old, is a graduate of Pomona College and until recently worked in Los Angeles for Just Detention International, an organization fighting sexual abuse of prisoners. (I attempted to reach Willingham on the phone, through her former employer, through her lawyer, and via Facebook, but I did not hear back from her.) Brandon Winston was born at Camp Lejeune, North Carolina; his father is a former Marine who became a New York City firefighter, his mother a high school math teacher. He was accepted on scholarship to the elite boarding school Phillips Academy through a program to bring promising urban students to the school. He graduated from St. John’s College in Santa Fe, New Mexico. He wants to be a patent lawyer.

According to the transcripts from Winston’s eventual trial for assault, Willingham got to know Winston, who was a year behind her in school, when they worked together on a research project for a class they were both taking. Both tall and good-looking, they started seeing each other socially, and one time at Willingham’s apartment they made out, but decided to be just friends. After the project concluded, they drifted apart, each busy with school and new romantic involvements. But by the winter of Willingham’s third year of law school, her relationship had ended, and Winston’s was winding down as well. The two began exchanging messages about finding a time to reconnect.

On a Friday in mid-January, replying to a previous invitation from Willingham, Winston texted that he was near Willingham’s apartment and he wanted to drop by. There is general agreement about how the evening began. Winston arrived around 7:30, and Willingham made him a drink of hot chocolate and liqueur. They looked at photos from a recent trip Willingham had made to Kenya to visit her mother, an American working for the United Nations, and were soon joined by a high school friend of Kamilah’s. I’ll call that friend KF (for Kamilah’s friend). Both Willingham and Winston are black; KF is white. In a detail left out of The Hunting Ground, Willingham brought out cocaine, which she and Winston (but not KF) consumed.

Around 11:30, the group decided to go to a bar, the Middlesex Lounge, and here the versions of events begin to diverge. KF testified that she had been drinking at Willingham’s apartment, and just before they all left she was “starting to get hazy” and didn’t clearly remember the cab ride to the bar. Her memory for the remainder of the evening consists of “walking to the bar then waking up the next morning.” Once at the bar, Winston opened a tab; it eventually came to more than $160. The three drank, talked, and danced with strangers. Then, late into the night, Winston testified that KF came over and started dancing with him: “[KF] puts her arms around my neck and starts kissing me, while we were dancing. I start kissing her back.” He continued: “My hands were wrapped around her. Her legs came completely off the floor, wrapped around my body as we were grinding together.” He said that while this was going on, Willingham was near them on the dance floor. On direct examination Willingham said she did not see them dancing; on cross-examination she said that she did.

A little before 2 a.m. the bar closed, and Willingham walked a few blocks to get a cab. She testified that KF was very drunk, had fallen down at the bar, and needed help walking. Winston testified they were all drunk but he never saw KF fall, and she was able to walk to the cab. He also testified that he’d left his bag at Willingham’s apartment, that he asked her in the taxi if he could go back to her apartment and spend the night, and that she said yes. None of them had any cash, so when the cab arrived at Willingham’s apartment, the two women went into the building while Winston went to an ATM to pay the driver. Winston returned to Willingham’s apartment, though the details of his entrance are in dispute: Willingham testified she did not buzz him in and speculated he knew her door code; he testified he didn’t know it and that she let him in.

Willingham testified that she was collapsed at her apartment door when Winston arrived, that he took her key to let them all in the apartment, and that the three of them went to the bedroom. She said she and KF flopped face first on the bed, and then Winston came in and took off both women’s boots. She says she went to the bathroom to be sick, then came back to the bed and passed out. “I woke up and he was kissing me,” she testified. “The next thing I remember is waking up with him on top of me. His hand was inside of my tights. I didn’t know how long it had been there. I remember pulling it out of my tights. He was kissing me and touching me. I think I pulled his hair a little bit.” She said she then reached her hand out and felt naked skin—KF’s back. She said KF was naked from the waist up. She asked Winston how KF’s top had come off, and Winston said he had taken it off. Then, she said, he reached out and stroked KF’s breasts. (In The Hunting Ground Willingham says that she “yanked him by the hair” to get him to stop touching her and that KF was “totally naked.”)

Winston’s account is substantially different. He testified that he arrived at the apartment to find the door ajar and that he walked down the hall to Willingham’s bedroom. Willingham was not there, but KF was, and she appeared to be asleep. He said he roused her and got her to sit up. They started kissing. “She had her hands around my neck and my hands around her body,” he testified. He told her to lift up her arms, and he took off her shirt. They continued kissing, and he tried to unhook her bra. “I wasn’t able to,” he said. Then he passed out. He testified that the entire encounter lasted three to five minutes.

Winston testified that he was awakened by “a body that was rubbing against mine and a tongue in my mouth.” He thought it was KF; it was Willingham. As he came to, he rolled over, and Willingham wrapped her legs around him. He said that their clinch lasted about 30 seconds and that she never pulled his hair. He testified that he then told Willingham he was going to sleep on the couch in the living room. Both Winston and Willingham agree that she encouraged him to sleep in a spare bedroom. Willingham testified she did so because the living room was cold and the bed would be more comfortable for him.

The next day, Willingham began sending accusatory texts to Winston about KF. She recounts the initial exchanges in The Hunting Ground: “I said something very casually like, ‘Am I going to have to tell her that she needs a pregnancy test?’ And he said in the text message, ‘No we didn’t do anything serious. Maybe I put a finger in her v at most.’ ” Willingham’s mother then appears on screen saying, “It was pretty clear he had assaulted them while they were unconscious. I absolutely assumed that Harvard would do right by Kamilah.”

Winston testified that when he got the pregnancy question from Willingham he thought she was joking. The texts were introduced as evidence at the trial. Winston’s text in response was, “Very very funny Kamillah [sic].” She replied: “hahaha…but for realz…did you put your p in her v?” His answer: “No!! I passed out after some minor touchings no more than what you and I were doing a finger briefly in the v at most.” Willingham’s questions and accusations continued, and Winston began denying any genital contact. In an instant message conversation, he stated he had not touched KF’s vaginal area. “There wasn’t any real touching going on. No fingering. I took her shirt off and then passed out.”

Over the next few days, Winston issued a stream of apologies to Willingham. She asked, in an instant message, “When is it ever okay to initiate something with someone while she’s asleep?” He replied: “Never. I was seriously wrecked and I went too far. I wasn’t trying to force her. I know it sounds like it. I was talking to her the whole time, and she was talking back, but in that passed-out mumbling way that is essentially being asleep. And I was totally reckless, I know. I’m sorry.” He would later testify that while he didn’t believe he’d done anything wrong, he was trying to mollify his angry friend.

Willingham, however, was not placated. Winston testified that several days after their late night, she met with him and told him she had found a condom at the top of the wastebasket in her bathroom with blood on it. Willingham told Winston that KF had been menstruating on the evening in question and that she thought he might have used the condom with KF. Winston testified, “I was shaken. She made it very clear that … she was accusing me of rape.”

Winston had no memory of having intercourse with anyone, but when Willingham confronted him, he wondered if he could have done something while in a blackout state. Frightened, he testified that he checked his wallet, and the single condom he always carried was still there. He told Willingham the condom at her apartment wasn’t his. She told him she had already given it to the police. (The Cambridge Police Department declined to comment on the case.) Eventually, the condom was tested by law enforcement. There was both male and female DNA on it. The DNA from the woman was not that of KF but Willingham. Law enforcement did not test to see whether Winston was the source of the male DNA. Winston’s lawyer, Norman Zalkind, did. The male DNA did not belong to Brandon Winston.

3 Harvard’s Response

Willingham waited three months, until April of 2011, a few weeks before her graduation, to report the alleged assault from January. In The Hunting Ground she describes a process that was disdainful and insulting. “There was this extreme reluctance to believe me,” she says in the documentary. But the record suggests otherwise. Harvard hired an outside lawyer to conduct an investigation and present a report to the law school’s Administrative Board, a committee composed of faculty, staff, and students. During this process, Winston was interviewed for about six hours—the tape was played for the jurors at his later criminal trial, and the 150-page transcript shows he was questioned vigorously, asked persistently about every detail of that evening. Willingham and KF declined to have their interviews taped.

In the fall of 2011, the Administrative Board ruled that Winston was responsible for sexual harassment, and he was put on what the school calls “dismission,” a form of expulsion that would allow him to reapply for admission. In the film, the finding against Winston is presented as a rare triumph, though a fleeting one. Willingham says in the movie that upon returning to Cambridge in September, she received a Facebook message from the dean of students, who wanted to meet with her. (Willingham had graduated from the law school; she was back in Cambridge for a teaching fellowship in the sociology department of Harvard College.) The meeting was to deliver the news that Winston’s dismission had been overturned by the faculty. But the movie is misleading on the process and the timeline. Winston missed the entire 2011–2012 academic year because of the finding of the Administrative Board. During that year, he was barred from attending classes while his case slowly worked its way through the law school’s disciplinary process; at that time, expulsion required that two-thirds of the faculty vote to ratify the ruling. It wasn’t until the spring of 2012 that the faculty, after reviewing the testimony from the administrative hearing, voted to dismiss the charges against Winston and allow his return that fall.

“The overwhelming majority concluded this is not a person who should be punished.”
Harvard law professor Charles Ogletree Jr. on the university’s handling of the Winston case.
Willingham had pro bono legal representation during the law school’s administrative hearing. Her lawyer, Colby Bruno of the Victim Rights Law Center, says in The Hunting Ground of the Harvard process: “The message is clear: It’s ‘Don’t proceed through these disciplinary hearings.’ No matter what you do, you’re not going to win.”

To get another perspective on the case, I spoke with Harvard Law professor Charles Ogletree Jr. Ogletree was legal counsel for Anita Hill in her sexual harassment hearing against now–Supreme Court Justice Clarence Thomas. He came to know Winston when he was “one of the stars” in the professor’s trial advocacy workshop. Ogletree said the review process of Winston’s case by the law school faculty was lengthy and deliberate: “Women and men offered their input. The overwhelming majority concluded this is not a person who should be punished.” Ogletree ultimately helped Winston secure legal representation for his criminal case.

Winston’s reprieve at Harvard was short-lived. In October 2012, a grand jury indicted him on two felony counts. Harvard placed Winston on an involuntary leave of absence due to the criminal charges pending against him. The indictment was the culmination of the long legal process that began when Willingham and KF reported to the police that they had been sexually assaulted and Willingham gave the police the condom from her bathroom wastebasket. Toward the end of The Hunting Ground, a graphic announces: “A grand jury in Boston indicted Kamilah’s accused assailant with two counts of sexual assault.” What the filmmakers don’t explain is that the grand jury charges stemmed from Winston’s touching of KF. The grand jury declined to indict him on any charges concerning Willingham. She appeared at his trial not as a victim but as a witness.

4 The Verdict
Animation by Lisa Larson-Walker. Photo by aerogondo2/Shutterstock.

Winston’s criminal trial didn’t begin until February of this year, nearly 2½ years after his indictment. Waiting for his day in court, Winston worked for a sculptor and then for a friend in software development. He faced two felony counts of indecent assault and battery against KF, specifically one count of “hand on vaginal area” and one count of “hand on breast.” (Despite the “finger in her v” text, Winston was not charged with a penetrative act, which in Massachusetts would have been considered rape.) The prosecutor, Marisa Tagliareni, argued to the jury in her opening statement that on Jan. 15, 2011, KF “was in no position to give consent to any kind of touching” and that Winston “went too far with [KF] that night.” (A representative for the Middlesex district attorney declined to make Tagliareni available for an interview.) Zalkind, in his opening, countered with a description of an inebriated but consensual encounter: “She kisses him, he kisses her. It’s mutual.”

There was no mention during the five-day trial of Winston drugging anyone’s drinks, a key accusation Willingham makes in The Hunting Ground. The prosecutor agreed with a defense motion not to make such an assertion due to the absence of any evidence to support it. Then there was the matter of the condom. The prosecution sought to have the condom excluded from evidence, arguing that it was not relevant to the crimes for which Winston had been indicted. (The actual source of the male DNA on it has never been identified.) Judge Maynard Kirpalani, in his decision to allow it, wrote, “This evidence is relevant, at a minimum, to demonstrate Willingham’s bias against the defendant, as the jury could infer that Willingham knew, at the time that she questioned the defendant about the condom, that the condom was not his. The jury could further infer that her questioning of the defendant was disingenuous.” Willingham testified she had no idea how the condom had gotten in her wastebasket. She said during cross-examination, “Of course I didn’t know it was mine.”

I spoke to two jurors on the trial: the woman, a public school teacher, age 54, who first approached me about the case, and a man, a public radio employee, age 52. Both jurors were willing to characterize the deliberations, but neither wanted to be publicly identified. The jury, seven men and five women, deliberated for three days. The jurors felt there was insufficient evidence that Winston touched KF’s vaginal area, despite his initial reference to the possibility in his text exchange with Willingham. KF remained clothed below the waist, and Willingham never claimed to have witnessed such an act. Winston was acquitted on that count. But the jury deadlocked 11–1 on the second count of touching the breast; a male juror was the lone holdout for conviction. To break the impasse, the jury acquitted Winston of touching KF’s breast but found him guilty of a single lesser included charge within that count: misdemeanor touching of a nonsexual nature. The male juror I spoke with expressed misgivings about convicting on even the less serious count but acknowledged Winston’s apologies were problematic. “That’s the way I can live with myself,” he said. “Brandon did confess to crossing certain lines.”

At sentencing, the prosecutor noted that KF had suffered confusion and embarrassment as a result of the events of Jan. 15 and that she has since had “issues with trusting people.” Zalkind reminded the court that Winston had been acquitted of the felony counts and that his law school education had already been on hold for nearly four years. The judge, noting Winston was not convicted of a sexual charge, sentenced him to 90 days of supervised probation—meaning a monthly check-in with a probation officer—and 180 days of unsupervised probation. Kirpalani said of Winston, “He has … no criminal record whatsoever, and until these circumstances arose, had been a model citizen and a student with some promise.”

* * *

Brandon Winston was hardly a perfect gentleman on the night of Jan. 15, 2011. But aside from Kamilah Willingham’s assertions in The Hunting Ground, there is no evidence to suggest he is dangerous or a predator. Nor do Willingham’s claims of institutional indifference hold up; Harvard twice delayed Winston’s education while its own and later Middlesex County’s adjudication processes unfolded. Neither found evidence to substantiate Willingham’s claims in The Hunting Ground, and Winston has since received the punishment the legal system deemed appropriate for his actions.

The filmmakers say they interviewed more than 70 women who have been sexually assaulted in order to find the most compelling and illustrative stories to tell in their film. They say that each of their major cases is backed up with “extensive fact-checking” and thousands of pages of documents. But if they fact-checked this case, that only makes their one-sided portrayal of the Willingham case that much more troubling.

The story Kamilah Willingham tells about Brandon Winston bookends The Hunting Ground. The filmmakers juxtapose her final, emotional appearance on screen with a speech by the president of Harvard University, Drew Gilpin Faust. “Universities must nurture the ability to interpret, to make critical judgments, to dare to ask the biggest questions: What is good? What is just?” Faust says, and it’s clear the filmmakers hear in her words a tragic irony, given their belief that Harvard has abdicated this duty. But it’s the filmmakers who should be asking themselves what is good and what is just. Sexual violence on campus is a serious issue, and it is imperative that we understand its dynamics, work to prevent it, punish wrongdoers, and aid victims. Blurring the truth, and failing to tell both sides of the story, is not the way to achieve these goals. In their effort to sound an alarm about what they believe to be rampant college rape, the makers of The Hunting Ground did an injustice to Brandon Winston—and ultimately to viewers who have come, and will continue to come, to this film hoping for an accurate assessment of what’s really happening on America’s campuses.


Nov 202015

How The Hunting Ground Spreads Myths About Campus Rape

Robby Soave
November 20, 2015

On Sunday night, CNN will air The Hunting Ground—a work of activist propaganda disguised as a documentary about sexual assault on American college campuses.

Among its numerous faults, the film blames the campus rape problem on a plague of serial rapists; expert opinion on this matter comes courtesy of psychologist David Lisak, whose misleading interpretation of his flawed research on serial predators is given center stage throughout the film. (Read Reason’s multi-part expose on the research underlying Lisak’s dubious theory here, here, and here, and see Linda M. LeFauve’s new article examining Lisak’s misleadingly constructed video interview with a rapist here.)

The Hunting Ground covers two high-profile sexual assault disputes in great detail. It goes to extraordinary lengths to paint the alleged assailants in these cases as perfect examples of Lisak’s model rapist, implying that these men are repeat offenders who plan out their crimes and drug their victims.

But in reality, it’s far from clear that The Hunting Ground’s accused rapists are even actually guilty—let alone serial sociopaths who stalk and incapacitate their victims.

The “Amazing Lie at the Heart of a Movie Claiming to be a Documentary”

Nineteen Harvard University law professors have denounced the film for (among other faults) misrepresenting the case of Harvard law student Brandon Winston, whose life was put on hold after a night of drunken, drug-fueled sexual contact resulted in his expulsion from the university and criminal charges.

“What our student did is not the kind of violent, repeat sexual assault that the movie claims is both the nature of the problem nationwide and that each of the people in the film are an example of that,” said Elizabeth Batholet, one of the Harvard law professors speaking out about The Hunting Ground’s errors, in an interview with Reason. “That’s an amazing lie at the heart of a movie claiming to be a documentary.”
The Hunting Ground
Winston was accused of sexual misconduct by then-student Kamilah Willingham, who gives her one-sided account of the dispute toward the beginning of The Hunting Ground. According to Willingham, she and a female friend had drinks with Winston at her apartment, proceeded to a bar where Winston bought them more drinks, and then all three returned to her apartment in a state of inebriation, where Winston assaulted them while they slept. The clear implication from the film is that Winston is a monster frequently preys on his victims by drugging them and was ultimately able to elude justice because Harvard does not take victims seriously.

“He’s a predator,” Willingham says in the film “He’s dangerous.”

But, as Slate’s Emily Yoffe discovered in her groundbreaking investigation of the dispute earlier this year, the real story was much different. There is no evidence that Winston drugged the women; on the contrary, Willingham and Winston both consumed cocaine that Willingham herself had supplied. Willingham used a bloody condom she discovered in her wastebasket as evidence that her friend had been violently raped, but DNA evidence ruled out the possibility that the condom had been used by Winston (though it did match Willingham).

Nor is it true that Winston escaped wholly unpunished, as The Hunting Ground implies. Harvard initially expelled him, but reinstated him after determining that insufficient evidence existed to brand the encounter as assault. A grand jury declined to indict him on any charges having to do with Willingham; he was eventually convicted of a misdemeanor charge of nonsexual touching of Willingham’s friend. The film’s only reference to these facts is through some text briefly displayed at the very end.

The accusation put Winston’s future on hold for three years. A young black man with no history of criminal activity had to suspend a promising education at Harvard law school while both university administrators and the court system adjudicated the accusations against him.

“Three good years of his life have gone solely to this,” said Harvard Law Professor Janet Halley, who also rejects The Hunting Ground’s narrative, in an interview with Reason. “It’s not right for the filmmakers to extend it out to yet another trial in the court of public opinion, when the underlying claims have been so conclusively rejected. It’s bad for the overall effort for justice, and it’s bad for this young man.”

“Major Distortions and Glaring Omissions”

The Hunting Ground’s case against former Florida State University star quarterback Jameis Winston (now with the Tampa Bay Buccaneers; no relation to Brandon Winston) is similarly plagued by inaccuracies. Accuser Erica Kinsman claimed Winston drugged her at a bar, forced her back to his apartment, and raped her on the bathroom floor.

Kinsman says in the film that she’s “fairly certain” the drink Winston (or one of his friends) gave her was spiked, but two separate toxicology reports established that there were no date-rape drugs in her system on the night of the incident. Indeed, Kinsman has repeatedly changed the details of her story, first saying she passed out after consuming the drink and was unable to recall how she got into a car with Winston, and later saying she was coerced or intimidated into the car (something investigators thought was dubious, given that there were a lot of other people around at the time). The facts undermine the idea that she was preyed on by Winston, who was eventually cleared of sexual assault during a university hearing run by a retired Florida Supreme Court justice. Winston is now suing Kinsman for defamation.

In a statement chiding CNN for deciding to screen The Hunting Ground, FSU President John Thrasher excoriated the film for its “major distortions and glaring omissions.” Its producers have fallen into the same trap as Rolling Stone’s editors did with their discredited story about gang rape at the University of Virginia, wrote Thrasher.

“A Film Project That Is Very Much in the Corner of Advocacy”

The makers of The Hunting Ground, of course, are not interested in anything resembling the truth. Indeed, an email from investigative producer Amy Herdy made public confirmed recently this beyond any doubt. In the email, Herdy told Kinsman’s lawyer that the makers of The Hunting Ground, “do not operate the same way as journalists—this is a film project that is very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side.” In a separate email, Herdy discusses tactics for “ambushing” Jameis Winston.

While the cases against the two Winstons don’t stand up to scrutiny, The Hunting Ground does manage to identify a single serial predator: an unnamed man whose face is blurred for his interview with the filmmakers. This man confesses that he was incarcerated for sexual assault and hopes that by coming forward, he is educating the public about how to prevent people like him from committing attacks. His monologue is interspersed with separate commentary from Lisak. Here is a transcript of that part of the film:

Man: “I was incarcerated for six and a half years for sexual assault. I know I was at fault. Like I said, the reason I really wanted to do this interview was to help someone else out. Maybe to have them become aware of what they are doing wrong.”

Lisak: “The really practiced sex offenders identify groups of people who are more vulnerable.”

Man: “College is the place where lots of alcohol is consumed and the number of victims is endless.”

Lisak: “These men select victims ahead of time. It could be a bar, it could be a fraternity party where people are drinking.”

Man: “At the parties, like frat parties, I mean people are getting wasted. So it’s not like a lot of the time dependent on who they’re with. Nobody keeps an eye on them.”

Lisak: “The alcohol is essentially a weapon that is used to render somebody extremely vulnerable.”

Man: “Alcohol definitely makes it easier to overpower a victim if they’re inebriated or under the influence. Less struggle for sure.”

Lisak: “Then there is an isolation phase. So if somebody who has deliberately gotten this young woman extremely intoxicated, and at some point he says to her, ‘I’ll walk you back to your room,’ or ‘you can sleep it off if you want, we have a bed upstairs.’ And that’s where the assault occurs.”

The film’s only case of clear-cut predation, then, is supported exclusively by an anonymous interview that provides no checkable details.

The film also claims eight percent of men in college commit 90 percent of the assaults and that the average number of assaults per rapist is six. The citation, of course, belongs to Lisak’s 2002 study, “Repeat Rape and Multiple Offending Among Undetected Rapists.” But as Reason confirmed in its previous invesitgations of Lisak’s work—and Lisak himself confirmed—that study wasn’t actually about college students, and didn’t ask participants about crimes committed on campuses.

A Representative Case?

Is The Hunting Ground’s anonymous predator—whose crimes are implied, but not confirmed, to have taken place on a campus—a representative case?

The interview bears a striking similarity to one conducted by Lisak decade ago. Lisak allegedly sat down with a serial rapist who was also fraternity brother and interviewed him about is methods. This conversation was later replicated by an actor and passed off as an anti-rape educational material dubbed an interview with an undetected rapist, and known as “the Frank video.”

But, as a new investigation by Reason contributor Linda LeFauve reveals, the Frank video is a composite of several conversations with rapists—demonstrating that Lisak’s own stereotypical serial predator is a carefully concocted cut-and-paste character.

The validity of Lisak’s theory was recently called into question by a new paper authored by Kevin Swartout, Mary Koss, Jacquelyn White, Martie Thompson, Antonia Abbey, and Alexandra Bellis. The authors found the serial predator theory to be based on “surprisingly limited” scientific evidence; their own study that most college rapists did not commit rapes across multiple years.

Lisak and his advocates have pushed back against this study, telling The Huffington Post that it contains significant flaws and ought to be retracted.

Nevertheless, Swartout said in an email to Reason that his team stands behind their work.

“We want to move the field forward by engaging in discussion of the issues through the peer review process,” he said.

Co-author Mary Koss told Reason that “no study is above reproach and we were and are open to constructive criticism and the need to make corrections if deemed necessary in the judgment of the editors.”

The science behind the serial predator theory, then, remains decidedly unsettled. But people who tune in to CNN on Thursday night won’t be treated to a nuanced examination of the question. Instead, they will be hit with a work of activist propaganda that wrongfully portrays college campuses as uniquely dangerous environments where women are literally hunted by sociopathic rapists.

“We who have spoken out at Harvard are completely committed to addressing sexual assault,” said Bartholet. “It’s horrible that this film is coming out that is now misrepresenting the nature of the problem and diverting attention away from how we can address it.”


Nov 202015

The Misleading Video Interview with a Rapist in the Heart of the Campus Sexual Assault Freakout

Linda LeFauve
November 20, 2015

This is a reenactment of an interview conducted by Dr. David Lisak, Associate Professor, Department of Psychology, University of Massachusetts, Boston, as part of a study of men who had raped but were never reported or prosecuted for their crimes.”

So begins the set piece of David Lisak’s best-known presentation to college campuses, the military, the judiciary, law enforcement, and untold conferences where his expertise on sexual assault is lauded. It is a seven-minute video that shows Lisak and “Frank,” an actor speaking an allegedly verbatim transcript from an interview with one of Lisak’s “undetected” campus rapists.

The introduction and the surrounding content strongly suggest the interview is linked to research Lisak claims to have conducted at the University of Massachusetts Boston. Certainly that is the impression cultivated. Even when the video is specifically identified as such by others—for example, radio hosts, authors, or filmmakers—Lisak lets the implication stand.

Together, Lisak’s statements about serial sexual offenders and revelations about their motivations illustrated in the interview have significantly shaped the debate on campus sexual assault. Yet there is no relationship between the interview and the research at UMass Boston.

The provenance of the interview, however, is only one of its issues. Far more troubling is the discovery that what is presented as material from a single interview is actually material from multiple individuals—none of whom actually resemble the finished product—edited to align with Lisak’s theory of serial sexual predators on college campuses. (This theory is featured prominently in The Hunting Ground, a documentary about sexual assault on campus set to air on CNN beginning November 22.) [Note: For more on The Hunting Ground, see Robby Soave’s article on the documentary’s many problems and inaccuracies.]

More troubling still is that those interviews were conducted with just 12 individuals nearly 30 years ago, a decade before many students on college campuses today were born, when Lisak himself was still a doctoral student.

Lisak’s Serial Predator Theory

The “Frank” video, and its supposedly unfiltered look inside the minds of predatory rapists on college campuses today, is a critical component of Lisak’s theory of sexual assault. He has claimed that his research at the University of Massachusetts Boston showed that 90 percent of campus rapes are perpetrated by serial offenders who meticulously plan their assaults, and who average six rapes each. These frightening statistics are regularly cited by government officials, including those at the White House.

But as Reason’s Robby Soave and I previously demonstrated, Lisak didn’t do research on campus sexual assault at the University of Massachusetts. Rather, he analyzed a subset of data collected by several of his doctoral students for their dissertations, none of it related to campus sexual assault, and found what he has subsequently described as evidence of serial rapists on college campuses. The paper he and his former student, Paul Miller, published in 2002 never even suggests that the acts perpetrated by his 76 serial rapists took place while they were students or on a college campus, nor that the victims were students themselves.

As these were primarily older students attending a commuter campus part-time—many with jobs and families—reporting on acts not limited to their years as students or attendance at the university, the paper’s connection to campus assault is tenuous at best. Lisak himself additionally undermined the paper’s connection to serial predators when he told me that a number of the assaults reported were ongoing abuse in domestic partnerships.

Lisak has also asserted that he interviewed the subjects of his students’ doctoral research. As reported earlier, when I asked how he could have interviewed anonymous subjects of research he had not conducted, he refused to answer and ended the conversation. In fact, he has published nothing related to interviews with the subjects of the paper in which he proposed his serial-predator theory, and there is no evidence they were ever asked, by anyone, about how or why the crimes occurred.

This unfounded theory of campus serial predators, however, gained no small amount of its traction from Lisak’s provocative declarations about their methods and motivations.

The graphic and disturbing alleged interview with Frank has driven those declarations home in dramatic fashion.

Frank’s language in the video is graphic, his attitude callous, and his account of assaults committed highlights Lisak’s theory that these serial predators are unfeeling sociopaths who target their victims and meticulously plan their attacks. The video not only highlights his theory’s touchpoints, it illustrates them perfectly.

But if Frank is not drawn from Lisak’s 2002 paper, on whom is he based?

The Origin of the Frank Interview

Lisak regularly presents the Frank interview as representative of the mindset and motivation of a typical college perpetrator, the kind of serial offenders supposedly responsible for 90 percent of campus assaults.

Instead, the source used to compile the Frank script traces back to just 12 students interviewed sometime in the 1980s. The path to the discovery of the video’s origins starts with a paper Lisak published in 1990 based on the research he’d done for his doctoral dissertation at Duke.

In Motives and Psychodynamics of Self-Reported, Unincarcerated Rapists, Lisak and his co-author Susan Roth reported on 15 college students at a “major southeastern university” classified, via a survey, as having engaged in rape or attempted rape and, for purposes of comparison on various psychological measures, 15 control subjects, also students at the same university, who had not engaged in sexual violence. The final pool of offenders was 12; three dropped out before the study was completed.

The primary question addressed by that paper was whether research others had done on convicted rapists had applicability to college men who had engaged in sexual violence but remained “undetected.” Through a battery of psychological inventories, projective tests, and interviews, Lisak concluded that the men in his case studies were similar to the convicted rapists in terms of attitudes toward women but that family dynamics played a greater role for his own subjects’ behavior.

The paper included summaries of two of his 12 “undetected rapist” case studies. Given the complexity of the research reported in that paper, and its proximity to the year Lisak completed his PhD—at a “major southeastern university,” Duke—I wondered if the full research was contained in his dissertation. That instinct proved to be correct.

The two case studies reported in Motives and Psychodynamics of Self-Reported, Unincarcerated Rapists made their first appearance in Lisak’s doctoral dissertation at Duke. This is not unusual; many newly minted PhDs turn their dissertations into a first publication. Lisak’s dissertation was submitted to the Department of Psychology at Duke University in 1988, which would put the bulk of the research for it—including interviews with his “undetected” subjects—conservatively between 1986 and 1987. This is the material from which Lisak has created “Frank.”

Even if the mindset presented in the Frank video was typical of some college men at that time—the results of the psychological tests for the 12 subjects aggregated to create him suggest instead particularly troubled young men—presenting perspectives on any of a number of issues from the 1980s as though they were current is deceptive. Worse is the intrusion of that mindset into federal policy, victim advocate guidelines, or campus programming based on attitudes that might once have been ascribed to a small group of men three decades ago.

Cutting and Editing to Bolster a Theory

That Lisak presents the “Frank” video as typical and current when its content is nearly 30 years old is not the only cause for concern here. As described in material from the National Judicial Education Program— where Lisak is a long-time faculty member and from whom the video is officially supplied—the video “is a reenactment of part of an interview conducted by Dr. David Lisak.” But as it turns out, even though it is presented here and elsewhere as an interview with a single subject, read verbatim by an actor, “Frank” is not one student.

Rather, he is an aggregation of several interviews from Lisak’s dissertation research, which raises the level of concern by an order of magnitude. Material cut-and-pasted is material at risk of serving an agenda. Had Lisak described the video as intentionally designed to make a point, it might—might—even be an understandable agenda were it not for the two problems already noted: It is based on material decades out of date, and it is edited to make a point about serial predators not backed by research.

Lisak himself has never bothered to clarify either the source or the timeframe for the interview. Whether discussing his theory on NPR, making presentations to the U.S. Army, talking to reporters, vilifying the fraternity system, or as an invited speaker on college campuses, he allows its misrepresentation.

A passage from Jon Krakauer’s Missoula, a book published this year in which Lisak figures prominently as Krakauer reports on sexual assault at the University of Montana, is an excellent illustration, first, of the way research Lisak did not conduct is linked to interviews he never did:

Lisak devised a study that would provide insights into offenders who’d managed to avoid both punishment and scrutiny—a population that accounted for the overwhelming majority of rapists. Specifically, he designed his study to reveal whether these “undetected rapists,” like their incarcerated counterparts, showed a propensity to rape more than once and whether they were likely to commit other types of interpersonal violence. The study, titled “Repeat Rape and Multiple Offending Among Undetected Rapists,” co-authored by Paul M. Miller and published in 2002, added significantly to the understanding of men who rape.

Any participant who answered “yes” to one of the questions on the questionnaire was subsequently interviewed and asked follow-up questions. When interviewing his subjects, Lisak said, “I made sure I didn’t in any way suggest that I was judging them or that I was horrified by what they were telling me.”

Krakauer then discusses “Frank,” unknowingly but neatly wrapping up the conflation of unrelated and duplicitous information in service of Lisak’s agenda:

To illustrate a rapist’s worldview, Lisak opened his laptop and played a video he’d christened The Frank Tape. It’s a harrowing reenactment of an unedited, five-minute segment of an interview he did with a student rapist, performed by an actor who has precisely mimicked the rapist’s delivery and callous self-regard.

Repeating Lisak’s assertion that Frank is a typical example of Lisak’s campus predators, Krakauer says that “it’s crucial for police officers, prosecutors, and campus administrators to regard them as such.”

The Dissertation Interviews

The evidence that Lisak has, in fact, curated segments of multiple interviews to make a point not found in any of them is found in his own dissertation.

A word, first, about the availability of doctoral dissertations. Most doctoral dissertations are contained in an electronic database to which a large number of academic libraries subscribe. Lisak’s dissertation is not. That makes it unavailable to most people and an exceedingly unlikely source for anyone to check. It is, however, housed in one of the libraries at Duke and so available, via interlibrary loan agreements, with other academic libraries. It was thus that I was able to read David Lisak’s 345-page tome.

Its length is due, in large part, to the detailed case-study material on the 12 subjects classified as “undetected rapists.” Included are their scores on various psychology inventories, descriptions of the their projective tests, and biographical information. Also included are descriptions of the sexual violence they committed as obtained through Lisak’s interviews with them.

The information and verbatim quotations from those interviews make it absolutely clear: Not one of them, in isolation, could be the person represented as “Frank” in Lisak’s video. Frank is a carefully constructed compilation.

For example, video-Frank, presented as a member of a fraternity, describes pinning a woman down and wrestling her clothes off. Case study Frank, however, is not a member of a fraternity. The case study subject who is a member of a fraternity, Charles, describes his participation in two assaults but in both the woman was unconscious or semi-conscious. The reference Frank in the video makes to wrestling with a woman to undress her is from a third case study, Michael, who is also the source of video Frank’s “pissed” reaction to her resisting him. Case study Frank is the source of video Frank’s line about “overwhelming the other” but there he is referring to incidents that happened with women he was dating, not women he “targeted” at a party.

Charles does describe targeting girls at his European college before transferring to the “major southeastern university.” However, he is not describing assaults but consensual if misguided relationships. As there were so many more woman than men on his previous campus, he explained, “The girls were easy. I’d have four calling me all the time. They’d come over and cook and clean. Sex was expected.” Eventually he decided to live with one of them, after which he didn’t “go out and find targets all the time.”

The contradictions go on. Reading the case studies makes clear that the student depicted in the video is a compilation of details across multiple and varied situations. What was selected for that compilation raises its own set of questions about how those selections were made.

The word that is most applicable to Lisak’s 12 undetected rapists, as a group, is not predatory but impulsive. The interviews reveal young men who were immature and/or inexperienced. Seven of the 12 used language that made it clear their aggression rose up in the moment, primarily out of frustration.

For six of the 12, the sexual violence that had classified them as rapists had occurred with someone they were dating in which the subject was aggressively pushing for intercourse or oral sex, the woman resisted, and the subject continued anyway. In two of those cases, the subject described himself as too drunk to stop. (This, too, differs from the way Lisak describes alcohol; for most of his interview subjects, drinking disinhibited their own behavior far more often than it was used as a “weapon” to make a woman more vulnerable.) In two cases, the subject did stop; one of them expressed anger at having to stop and the other regret that the situation had progressed as it had. In two others, the assaults were retaliatory when the subjects discovered the women they were dating were also dating others.

One of the 12 confessed to a stranger rape, committed when the subject was in high school. Two others had assaulted women who were not students and were not on campus; one was woman the subject had met at the home of a friend over the summer, and one was a woman the subject had hired for sex while visiting another city. In both these cases, the subject became aggressive when his assumptions about the encounter were not realized.

Three of the 12 met the women they assaulted at parties (apparently) on campus. Just one of them (Charles) displays the callous planning that is the focus of the Frank video, checking out women at a fraternity party, making assessments about who could be gotten drunk, and having sex on three occasions with women who were unconscious or semi-conscious. It is worth noting that there is no suggestion that this “targeting” began prior to guests arriving at the party; no grooming in the week leading up to the party as Frank in the video states.

Where Is the Research?

Let’s be very, very clear: In no way were the actions of any of the 12 subjects appropriate or acceptable. It’s an easy case to make that they were, in fact, criminal, including the violence committed against women the subjects were dating, and regardless of whether the subject had been drinking himself.

But the “undetected rapist” Lisak has chosen to highlight and on which he builds—the “typical” student committing sexual assault on college campuses—is actually an outlier in his subject group. Charles from nearly 30 years ago (who somehow becomes Frank in the curated interview) is disproportionately represented as embodying the motivations and techniques of the typical perpetrator of sexual assault on American college campuses today.

This bears emphasis: The interview with an undetected rapist that is David Lisak’s dramatic centerpiece, presented as statements made by a single person and used to illustrate the typical mindset of a college rapist, is an edited compilation of interviews Lisak did with a handful of subjects in the 1980s. The material included in the video interview is not even typical of those subjects as a group. Instead—and at best—it has been edited so that it provides credibility to Lisak’s campus serial predator theory.

Why “at best?” Given his willingness to cut-and-paste in a way that supports his theory, the question of whether “Frank” also contains material not found in any of Lisak’s 12 interviews—that is, fictional statements or statements made by men otherwise removed from college campuses—must remain, unfortunately, an open question.

Where in Lisak’s dissertation interviews, for example, are the references to grooming and isolating potential victims that give rise to Lisak’s characterization of campus perpetrators as unrepentant sociopaths?

None of the interview subjects—curated-video Frank aside—are reported to have used such language or described such behavior. Such absence would not be merely incidental, as Lisak described the case study reports as intended “to synthesize the data on each rapist into a more coherent picture of the individual and to illuminate some of the psychodynamic characteristics which underlie his behavior” (page 98 of his dissertation). Yet the language of meticulous planning, so fundamental to the predator theory, is not found in these case studies.

Why, then, would Lisak choose to highlight the callous outlier rather than the anger and impulsivity the majority of his subjects displayed in ongoing relationships? Why present as typical the case that is most unlike the others? Experience suggests that answers to these questions won’t be forthcoming from Lisak.

We are left with the larger question of what Lisak can really tell us about campus sexual assault, and how much expertise he can claim.

Relying as he does on 12 interviews from 30 years ago, and somewhat more recent research not originally conducted by him and not related to campus sexual assault, perhaps the more important question is what he means when he says—as he does frequently—that he has been interviewing undetected rapists and conducting research on them for “over 20 years?” He published two papers based on his doctoral research, conducted in the 1980s, and one more soon after arriving at the University of Massachusetts based on repeating his dissertation survey (no interviews) with a sample of students there. (Interestingly, in that paper, he described the University of Massachusetts students as unlike typical college students.) The research conducted by his doctoral students at the University of Massachusetts that he has claimed as his own included no data about circumstances, motivations, or the predatory process Lisak ascribes to undetected rapists. He has written a small number of papers rehashing his conclusions about serial predators but added no new research. He has been called as an expert witness in criminal trials—apparently and ironically because of his presumed expertise on rape—but even if he had interviewed the accused in those cases, they were not students, their status as defendants precludes their status as undetected, and their modest number fails as research.

In fact, I found no evidence that David Lisak has conducted any new research of any kind on undetected campus rapists since his dissertation. What he has done is parlay conversations with 12 students almost 30 years ago—and particularly one atypical conversation—into a presumably lucrative career as a consultant and paid expert forensic witness.

David Lisak’s Staggering Level of Influence

The level of influence David Lisak has is staggering. In spite of having conducted no actual research on campus sexual assault beyond one project in the 1980s while still a student himself, he is introduced, in person and in print, as a prominent and still active researcher. He is an expert, a leading authority. References to his iconic status on the issue of campus sexual assault are legion. In spite of longstanding questions about his theory of serial predators—including Reason’s investigation revealing the complete absence of a connection to college campuses and the publication of a study by a team of researchers that found no evidence of serial predation in a nationally representative sample, both published this summer—his speaking engagements have not slowed at all.

Complimentary—if wildly misleading—bombast when introducing a keynote speaker is one thing. Influencing policy is something altogether more problematic. And David Lisak’s unfounded claims related to numerous facets of sexual assault are reflected in policies not only in higher education and sexual violence prevention organizations but at every level of government, from municipal police departments to the military to the U.S. Commission on Civil Rights to the White House itself.

A short list of organizations that include material from David Lisak shows not only the range of that influence but its insidious nature. These are not one-off presentations. The material lives on in guidelines, procedures, and court decisions, information passed on to new practitioners in ever-expanding spheres of impact.

Examples of organizations with policies or guidelines attributed to David Lisak

National Judicial Education Program
American Prosecutors Research Institute
National District Attorneys Association
United States Commission on Civil Rights
United States Air Force
Fraternity Sexual Assault Prevention Peer Education
National Center on Domestic and Sexual Violence
Reporting on Sexual Assault Guide for Journalists
American Association of University Professors
White House Task Force on Women and Girls
Washington State Courts Manual on Sexual Offense
World Health Organization: Global Violence and Prevention

Momentum is a powerful force, and the David Lisak juggernaut seems unstoppable. Perhaps that is why he’s chosen not to respond to the growing list of questions and criticisms of his alleged research. (He did make one brief reference to the earlier Reason articles in which he misstated what the articles said.)

Finally, and sadly that it even must be said: Criticizing unduly influential research is not equivalent to dismissing the issue of campus rape itself. But we need something more than a belief in agenda-serving explanations and facile solutions.

To those inclined to be dismissive of anyone questioning the form or degree of campus violence, I offer this: Clearing college campuses of mythical monsters will change nothing. Rather, we should strive for campus environments where students are genuinely safe and due process is respected. Meeting that dual goal requires accurate and timely information. We are not there yet.


Nov 202015

A Year after the Rolling Stone’s UVA Debacle, New Questions about Free Press on Campus

Ashley McKinless
November 19, 2015

year ago Rolling Stone journalist Sabrina Erdely published the sensational, and now thoroughly discredited, exposé, “A Rape on Campus,” which detailed in horrific detail an alleged gang rape at the University of Virginia. As I scrolled through my Facebook newsfeed the evening of Nov. 19 I read again and again the same refrain from my fellow UVA alumni: “I am shocked but not surprised.”

To refresh your memories: The piece told the story of a female student, identified only as Jackie, who recounts attending a date party at the Phi Kappa Psi fraternity. Her date, an upperclassman, leads her to a bedroom upstairs, where, allegedly, she is thrown on to a glass table and raped by seven men over the course of three hours. The incident ends with a classmate she recognizes from her anthropology class on top of her:

Someone handed her classmate a beer bottle. Jackie stared at the young man, silently begging him not to go through with it. And as he shoved the bottle into her, Jackie fell into a stupor, mentally untethering from the brutal tableau, her mind leaving behind the bleeding body under assault on the floor.

Shocked but not surprised. I have to admit this was my gut reaction as well, which in hindsight seems strange to me. I had attended a couple of parties at Phi Kappa Psi during my first year at the University of Virginia. I was aware of alcohol-fueled hookups, which by today’s standards of affirmative consent, may have passed into the sexual assault grey zone. But ritualized, premeditated gang rape? If I had thought such an atrocity was within the realm of possibility, surely I would not have stepped foot in the place.

And yet when I saw Ms. Erdely’s reporting, I wanted to believe it. Not because I have an axe to grind with fraternities, but because I didn’t want to question the integrity of the victim, whose voices are too often ignored or silenced. And I did not want to question the integrity of the reporter, who no doubt shared my instinct to take Jackie at her word.

Of course, you know what happened next: Other journalists investigated Ms. Erderly’s work, and found she had not interviewed the accused or any of the central witnesses, at the request of Jackie. Slowly, the whole story unraveled. In its wake, a fraternity house was left vandalized, university administrators were defamed and, worst of all, Jackie herself was potentially revictimized, whatever trauma she had experienced exposed to the harsh and unforgiving scrutiny of the media.

This unfortunate saga has been in the back of my mind in recent weeks as I’ve read stories about the role of the media at protests against institutionalized racism on various college campuses. Earlier this month at the University of Missouri, Tim Tai, a freelance journalist for ESPN, was forcibly prevented from taking pictures of a tent city activists had set up on public grounds. In a widely circulated video, an assistant professor of mass media is heard saying, “Who wants to help me get this reporter out of here? I need some muscle over here!” The activists justified keeping out the media with a statement on Twitter, which read: “We ask for no media in the parameters so the place where people live, fellowship, and sleep can be protected from twisted insincere narratives.” (The group behind the protests, Concerned Student 1950, later reversed course, putting out fliers that read, “The media is important to tell our story and experiences at Mizzou to the world. Let’s welcome and thank them.”)

On Nov. 18, students at Smith College organized a sit-in of 300 to 500 people in solidarity with the University of Missouri. The news site MassLive reported media coverage was not welcome, at least not in the traditional sense:

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Alyssa Mata-Flores, a 21-year-old Smith College senior and one of the sit-in’s organizers, explained that the rule was born from “the way that media has historically painted radical black movements as violent and aggressive.”

“We are asking that any journalists or press that cover our story participate and articulate their solidarity with black students and students of color,” she told MassLive in the Student Center Wednesday. “By taking a neutral stance, journalists and media are being complacent in our fight.”

I do not dispute Ms. Mata-Flores’s assertion that the media has at times failed in its coverage of marginalized peoples and movements. Protesters at other schools, including the Jesuit Loyola University Chicago, have adopted similar “no media” policies. But the answer to skewed or biased reporting is not less neutrality but more. If the Rolling Stone debacle taught me one thing it was the danger of mixing journalism with advocacy. Ms. Erdely knew that she wanted to shed light on the horrors of sexual assault on campus, and when she found a story that was sure to make headlines, it became too good to fact check. We cannot say definitively that her reporting “hurt the cause” of fighting sexual assualt on campus (some worry that victims’ stories will now be easier to dismiss), but it certainly did not help.

But the institutions and people wronged by the Rolling Stone’s reckless disregard for the facts did not respond by blocking out the media. Rather, it was excellent reporting by The Washington Post and others, as well as an independent report by the Columbia Journalism Review, that uncovered the truth. To paraphrase Supreme Court Justice Louis Brandeis, the remedy to bad journalism, is more journalism. At its best, the free press keeps organizations and movements transparent and honest, which in the long run is in their best interests. Today, campus movements for racial justice deserve nothing less.


Nov 202015

‘Affirmative Consent’ Won’t Work in Sexual Situations

Walt Gardner
November 11, 2015

Teaching about sex in high-school health classes is about to get even more controversial as a result of the passage of a new law in California (“For Teenagers, Sexual Consent Classes Add Layer of Complexity to Difficult Subject,” The New York Times, Oct. 15). The state became the first to require that all high-school health education classes provide instruction about “affirmative consent.” But I doubt that schools can do much to affect the behavior of young people in any sexual situation (“Schools Can’t Stop Kids From Sexting. More Technology Can,” The New York Times, Nov. 10).

What affirmative consent means is that each level of increased intimacy must be accompanied by verbal approval. It stresses that if someone is intoxicated or asleep, the person cannot be considered as giving consent. Colleges in California have been required to follow the rule since last year. But this is the first time it has been applied to high schools. It also expands what constitutes rape, which if strictly enforced will likely make felons out of many boys.

I applaud the intent of the new law, but I question how realistic affirmative consent is at either the high-school or college level. I say that because sexual passion and rational thinking do not mix any more than oil and water. It’s a comforting delusion to believe that once students have been instructed about affirmative consent they will remember what they’ve been taught, either in person or via texting. I hope I’m wrong, but human beings are hardwired a certain way. We can try, but I don’t think we will succeed.

That’s particularly the case today when sexual images bombard young people from an early age. Even the best teachers can’t compete with the mass media. I realize that there is a difference between virtual sex and actual sex. Yet I think both involve emotions rather than reason.


Nov 202015

E-lert: CNN’s Freshly Aired Lies

This Sunday, November 22nd, CNN will be airing The Hunting Ground, a propaganda piece that includes blatant lie after blatant lie:

SAVE held a National Press Club event to counteract the film back in March, and recently a group of Harvard professors have issued a press release against the film as well:

Florida State University’s President has also just denounced the film as well:

Help us contact CNN executive producer, Rebecca Kutler, and tell her to not allow CNN to be used as a propaganda vehicle for The Hunting Ground.


Truly yours,

Gina Lauterio, Esq., Policy Program Director
Stop Abusive and Violent Environments

P.S. Please take a moment to forward to a family member or friend.

Nov 202015

‘The Hunting Ground’ Crew Caught Editing Wikipedia to Make Facts Conform to Film

Ashe Schow
November 19, 2015

A crew member from “The Hunting Ground,” a one-sided film about campus sexual assault, has been editing Wikipedia articles to make facts conform with the inaccurate representations in the film.

Edward Patrick Alva, who is listed on the film’s IMDB page as part of the camera and electrical department, has been altering Wikipedia entries for months, in violation of the website’s conflict-of-interest guidelines. Alva is the assistant editor and technical supervisor for Chain Camera Pictures, the production company associated with “The Hunting Ground” director Kirby Dick.

Wikipedia guidelines state: “Do not edit Wikipedia in your own interests or in the interests of your external relationships.” As a member of the film’s production team, Alva should not have been editing pages about the film or related to the film.
Alva’s Wikipedia username is Edwardpatrickalva, and he acknowledges in his user bio that he has “a conflict of interest when I edit articles on Wikipedia that are related to Chain Camera Pictures.” Yet Alva continues to do just that.

Alva created his Wikipedia account just two weeks after Florida State University President John Thrasher first called out the filmmakers for their inaccurate and unfair portrayal of the school and its handling of the rape accusation against former star quarterback Jameis Winston. It wasn’t until September 18, six months after creating his user profile, that Alva acknowledged he had been editing Wikipedia pages related to “The Hunting Ground.”

Nearly all of Alva’s Wikipedia edits have related to “The Hunting Ground,” either through edits to the film’s main Wikipedia page or through edits to the pages of some of the people featured in the film.

Alva took particular interest in editing the Wikipedia page of Jameis Winston, the only person named in the film as an alleged rapist. Winston was cleared by three separate investigations, yet activists — and the film — claim this was due to a biased process and investigators seeking to protect a star football player. The film doesn’t mention the holes in Erica Kinsman’s accusation against Winston and in fact allows her to tell a story that contradicts physical evidence.

On March 31, 2015, Alva edited Winston’s Wikipedia page to remove much of the explanatory material surrounding the FSU and Tallahassee police investigations into Winston and to soften the doubt in Kinsman’s story.
For instance, Alva removed a section of Winston’s page that said no charges were filed against Winston because of “major issues” with the Kinsman’s story. He also removed a large section that described how Kinsman “broke off contact with [the Tallahassee Police Department] and her attorney indicated that she did not want to move forward at that time.”

Alva also edited the wording in a section about the New York Times’ reporting of the case. The article originally stated that the Times “reported irregularities in the rape investigation involving Winston.” Alva changed that sentence to read the Times “published the conclusions of its own investigation in April 2014, asserting that neither the TPD nor FSU had genuinely investigated the initial report.”

This falls in line with the narrative of “The Hunting Ground.”

On April 16, Alva again edited Winston’s page and moved the rape accusation against him up to the summary paragraph at the top of the page. On Sept. 21 Alva altered language regarding a court decision that went in Winston’s favor, changing the word “upheld” to “declined a motion to dismiss” when talking about Winston’s claim for defamation.

Wikipedia employs “talk pages” to allow editors to discuss changes to articles. Alva used the Winston talk page to suggest the edit of “upheld” without disclosing his conflict of interest as a member of “The Hunting Ground.”
Alva has also been editing the Wikipedia page for “The Hunting Ground” as well as other pages to include references to the film. On July 4, a Wikipedia editor told him he was “strongly discouraged” from editing the page because of his work for the director, and warned him that his account may be clocked if he did so.

As recently as Nov. 17, Alva was again warned that his editing violated Wikipedia’s conflict of interest rules.

Back on April 30, Alva deleted a section of text from “The Hunting Ground’s” Wikipedia page that detailed all of the shifting accounts of Kinsman’s accusation against Winston. Some of what was deleted included references to Kinsman’s claim in the film that she was drugged, even though toxicology reports found no known date-rape drugs in her system and the fact that a second semen sample from Kinsman’s boyfriend was found on her pants from the same night.

On Nov. 17, the day Alva was reprimanded by a Wikipedia editor for breaking the conflict of interest rules, he had added several major sections of positive information about the film, burying criticism. He added information about the film being screened at American universities and in the United Kingdom above a paragraph detailing criticism of the film from Slate’s Emily Yoffe.

Alva has also inserted mentions of the film into Wikipedia articles relating to campus sexual assault, such as the page about Title IX, the law being used to force colleges and universities to adjudicate felonies. On Aug. 24, Alva inserted a paragraph mentioning the film and its premiere at the Sundance Film Festival. He did the same for the entry on the “Anti-rape movement.”

On Mar. 24, Alva edited the Wikipedia page for Andrea Pino, one of the main accusers in “The Hunting Ground” to remove the word “alleged” before a description of the film.

Alva’s other Wikipedia edits include changes to the pages of Harvest Moon (a video game) and “Being Elmo: A Puppeteer’s Journey.”

Many of Alva’s changes, especially to the Winston page, have attempted to change the articles to support the story told by the film. The film itself is inaccurate, as the president of FSU and 19 Harvard Law professors have noted. The film distorts the evidence and uses false statistics to paint a picture of a rape epidemic at American universities. (Despite the filmmakers insistence that it is a documentary and “completely accurate,” emails between an investigator for the film and the lawyer of one of the accusers strongly suggest otherwise.)

The filmmakers didn’t even reach out to those maligned in the film until after it was submitted to the Sundance Film Festival. FSU President Thrasher said his school wasn’t contacted until Dec. 18. That was three months after the film was submitted to Sundance, and just about the time the Rolling Stone gang-rape hoax was falling apart because its author had failed to reach out to any of the students accused in the article.