Criminal Law and the Moral Panic on Campus Rape

As the Obama Administration steps up the federal effort against an alleged epidemic of campus rape, some states are contemplating measures of their own. A recent Newsweek story on a bill pending in the California State Assembly, discussed by K.C. Johnson on Minding the Campus, raises a number of troubling issues: among them, potential spillover  from the campus crusade into the criminal justice system and actual spillover from the radical feminist blogosphere into the mainstream media.

The legislation, AB 1433, introduced on January 6 by Southern California Assemblyman Mike Gatto, requires colleges and universities to promptly bring to local law enforcement all campus reports of violent crimes (homicide, rape, robbery or aggravated assault) and hate crimes–unless the complainant requests anonymity.  Federal law–the 1990 Clery Act, named after Jeanne Clery, a 19-year-old Lehigh University (Pennsylvania) student who was raped and murdered in her dorm in 1986–already requires colleges to record all crimes reported to campus authorities in a public log and in an annual security report, and to disclose them to the U.S. Department of Education.

Gatto, chagrined by the recent revelation that Occidental College in Los Angeles had failed to disclose two dozen sexual assault allegations in 2010 and 2011, decided to “streamline” the procedure by making it mandatory for schools to take all such reports to the police.  The bill states that victims of campus crimes should “have access to the expertise and investigatory powers of local police and sheriff’s departments,” which are “generally better trained and better equipped to fully investigate these crimes” than college authorities.

So far, so good.  Critics of the campus tribunals that give kangaroos a bad name have long argued that sexual assaults on campus should be handled by law enforcement and the justice system, not make-believe juries operating under capricious extralegal rules.  In a number of known cases, sexual assault complaints that led to a male student’s suspension or even expulsion from college were rejected by police and prosecutors as groundless.  In one such case, at Xavier University in Ohio, Hamilton County prosecutor Joe Deters actually went public to decry the expulsion of the student–basketball player Dezmine Wells, who had been previously cleared by a grand jury–as unfair.  In another, at the University of North Dakota, the accuser was actually charged with making a false report to law enforcement (and left the state to avoid arrest) while the accused, Caleb Warner, was expelled and banned from campus–a decision the university eventually reversed after a year-and-a-half legal battle.

While Gatto is appalled by the fact that very few reports of campus sexual assaults result in criminal charges, let alone conviction, he may not realize that many of these “offenses” would not qualify as sexual assault or rape even under the loosest legal standard.  They may involve being pressured or cajoled into sex with no physical coercion or threat of violence, or having sex when intoxicated but far short of incapacitation.  They may, in fact, involve nothing more than sex without affirmative consent–or even with affirmative consent that the accuser decides, months later, was given under duress.

Taking these cases to the authorities could, in theory, curb some of this theater of the absurd: a disposition of the legal charges in favor of the accused could help him within the campus judicial system as well.  (Meanwhile, in cases of actual rape, the perpetrator could face far more severe consequences than being expelled from college–which would still leave him free to victimize women elsewhere.)  In actuality, it is far from certain that Gatto’s proposal would work this way; being legally cleared of rape charges certainly didn’t help Dezmine Wells and would not have helped Caleb Warner without tenacious legal advocacy from the indefatigable Foundation for Individual Rights in Education (FIRE).  Moreover, in today’s atmosphere of moral panic about America’s “rape culture,” the influence could go the other way: if police departments and prosecutors reject most charges that are validated by college “courts,” they could find themselves under heavy political pressure to be more accuser-friendly.

The problematic nature of the bill is compounded by the fact that, due to input from campus activists whom Newsweek describes as “sexual assault survivors,” accusers will be allowed to decide whether their charges should be reported to the police or not.  (The alleged survivors told Gatto, and Newsweek, that they would not have gone to the campus authorities if they knew they would have to deal with actual law enforcement as well.)  Not only does this leave the universities’ “shadow justice system” entirely intact, it also underscores the extent to which feminist activism is pushing to make sexual assault or rape a subjectively defined offense.

As K.C. Johnson notes, the Newsweek article describes this situation entirely from the accusers perspective, uncritically repeating a Department of Justice report claiming that “college women are four times more likely to be sexually assaulted than the rest of the population” and “95% of rapes on campus will never be reported.”  But, actually, it’s worse than that: the article by Katie J.M. Baker also cherry-picks the evidence from that report.

According to Baker, “victims told the DoJ there were several reasons not to involve law enforcement officials, including  fear of being treated with hostility by the police and ‘anticipation that the police would not believe the incident was serious enough and/or would not want to be bothered with the incident.'”  Yet the 2000 article at the link shows that these were not the leading reasons women gave for not reporting the alleged rapes: “The common answers included that the incident was not serious enough to report and that it was not clear that a crime was committed.” Among the women the 2000 survey classified as victims of completed rape, 49 percent did not regard the incident as a rape; 46 percent did.

If this looks like deliberate bias rather than sloppy one-sidedness, perhaps that’s because it is.  Several Twitter users have brought attention to the fact that Baker came over to Newsweek from Jezebel.com, a leading website in the radical feminist blogosphere.  A look at her past work for Newsweek reveals that she began to write for the magazine last October; her debut was an essay responding to  Emily Yoffe’s much-debated article on Slate.com arguing that advising college women to avoid heavy drinking should be a part of sexual assault prevention. The tenor of Baker’s riposte can be gleaned from its title: “No. 1 Surefire Rape Prevention Tip For Ladies: Don’t Exist.”

Baker’s work on Jezebel.com, which presumably impressed Newsweek enough to warrant her hiring, is rather more colorful.  A January 7, 2013 blogpost titled, “Show This Depressing Graph to the Rape Apologist in Your Life,” starts with the words, “The next time some dick is all, ‘…but what about all those false rape accusations?’ show him this excellent (albeit very sad) graph…”  (The infographic Baker touted, which purports to illustrate the tiny percentage of rapists who are convicted and jailed and the even tinier percentage of accused men who are innocent, is based on such shoddy data that even radical feminist blogger Amanda Marcotte has criticized it as inaccurate.)

Baker is, of course, entitled to her opinions. Whether she’s entitled to write articles masquerading as news is a matter of Newsweek‘s journalistic standards.