America is in the grip of a moral panic. Are we really to believe that colleges are more dangerous for women than downtown Detroit? Jennifer C. Braceras reviews “The Campus Rape Frenzy” by KC Johnson and Stuart Taylor Jr.
In 1692, the Massachusetts Bay Colony found itself in the grip of a moral panic. Seemingly rational people turned on their neighbors, accusing them of witchcraft. The subjective testimony of children and “spectral” evidence, which only the accusers could see, were the basis for the arrest of more than 140 innocent people. Nineteen were hanged.
Today America is in the grip of another moral panic. We’re not afraid of witches but rapists, whom we are told lurk at our nation’s colleges in numbers that render the quad a more dangerous environment for women than downtown Detroit.
In “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” KC Johnson and Stuart Taylor Jr. dismantle this myth of a campus rape crisis and show how, with alarming frequency, colleges mistreat students accused of assault by failing to allow them any meaningful opportunity to prove their innocence.
The authors aren’t new to this controversial subject. Their 2007 book, “Until Proven Innocent,” demonstrated that the infamous Duke lacrosse rape case was a fraud and showed how local politics and political correctness blinded prosecutors, university officials and journalists from accepting the truth. In “The Campus Rape Frenzy,” Mr. Johnson, a professor of history at Brooklyn College, and Mr. Taylor, a contributing editor of the National Journal, show that a decade after the Duke hoax, campus administrators across the country have failed to learn its essential lessons.
Messrs. Johnson and Taylor trace the intellectual roots of today’s “crisis” to feminist scholar Catharine MacKinnon, who fundamentally redefined the meaning of the word rape. “Politically,” Ms. MacKinnon wrote in 1981, “I call it rape whenever a woman has sex and feels violated,” regardless of whether she consented beforehand. Ms. MacKinnon’s view—that regretted sex constitutes rape—was radical in its time. Today it is enshrined in campus disciplinary codes that define “sexual assault” in an almost limitless fashion. At the University of Virginia, for example, a student can be found responsible for sexual assault for any “intentional sexual touching”—“however slight”—where the recipient did not give “informed,” “active” and “voluntary” permission. At Brown a student can be branded a rapist if a campus tribunal finds that he “manipulated” his accuser into having sexual relations.
Activists, likewise, redefine rape in order to grossly inflate the number of rapes on campus. Using unsound survey methods, they ask students about a range of behaviors (from a surprise kiss to penetration without consent) that they then classify as “non-consensual sexual behavior” or simply “sexual assault.” Such slippery techniques are the basis of the widespread claim that one in four women are sexually assaulted during their four years in college. The authors, citing the Justice Department, say that the number is closer to one in 40.
At the same time that activists are expanding the definition of sexual assault, university disciplinary committees are systematically depriving accused students of basic due process protections. At the directive of the Department of Education, many campus tribunals today assign blame if there is a 51% chance that the accuser is telling the truth (the “preponderance of the evidence” standard). Many schools do not allow the accused to cross-examine their accusers. Some refuse to allow accused students legal representation and deny them the opportunity to present exculpatory evidence or witnesses in their defense.
All of this is even more concerning when one considers that, on many campuses, procedures require hearing officers to refer to the accuser as the “victim” or “survivor” even before any determination has been made that an assault has occurred—a clear signal that the burden of proof has shifted to the accused and the presumption of innocence removed.
How do colleges defend such wildly unfair proceedings? They say they are not determining whether someone will spend time in prison and that they are not adjudicating “guilt” of “rape” but rather “responsibility” for “non-consensual sexual conduct.” Messrs. Johnson and Taylor correctly note, however, that these are distinctions without a difference. Forever branded a sexual predator, a former student expelled on such a basis bears a lifetime of consequences and lost opportunities.
Take, for example, the case of Lewis McLeod, an Australian student who was studying at Duke University when he was accused of rape by a younger female student with whom he “hooked up” after meeting at a bar one evening in 2013. The local police found no basis to press charges, but a Duke administrative tribunal found that Mr. McLeod “more likely than not” raped his accuser because she had been drinking and, thus, was unable to give consent freely. Mr. McLeod sued Duke, and the judge hearing the case ordered the college not to finalize expulsion before trial. Nevertheless, Mr. McLeod had to leave the country because Duke withheld his degree, causing him to lose his visa and the job he had lined up.
According to the authors, Mr. McLeod is one of more than 100 students who are currently suing their former colleges or universities for wrongly punishing them for sexual misconduct. They recount so many examples that at times the book feels like the movie “Groundhog Day” and the reader soon forgets whether he is reading about a case out of Amherst or Michigan or Yale or USC—to name just a few of the many schools at which miscarriages of justice have occurred.
Unlike in Salem, where there were no witches, there are indeed too many instances of rape on campus. But as Messrs. Johnson and Taylor show powerfully, the current system has its own victims and ultimately undermines the credibility of actual rape survivors whose cases belong in court, not in Kafkaesque administrative tribunals.
Ms. Braceras is a lawyer and writer in Boston.
Appeared in the January 27, 2017, print edition as ‘Witch Hunt On the Quad.’