It rarely happens that a book becomes as relevant as soon after its publication as did Laura Kipnis’ Unwanted Advances. A string of reports of sexual misconduct by high-profile actors and politicians brought national media attention to the topic of sexual harassment in the workplace just months after Kipnis’ book appeared. The rapidly growing #Metoo movement showed how widespread the problem is and demanded far-reaching change. Voices calling for change quickly grew louder and more impatient.
Representative of many, Christine Emba requested abandoning due process for the accused because it “often allows the guilty to linger in power” (Emba, 2017). Many #Metoo supporters were persuaded by the suggestion that even if a few innocent men are harmed by abandoning due process for the accused, the net effect for society will be positive. When, by default, we believe the accuser, many victims will finally find the courage to come forward and sexual predation can be eradicated. Yet, others, like retired public defender Jeanine Tobin, cautioned that there can be “shaded motivations on both sides of sexual issues” (Tobin, 2017) and insisted on due process. This situation raises the question: should we abandon or maintain due process when it comes to sexual harassment allegations?
In Unwanted Advances, Kipnis answers this question. It turns out that what is proposed for society at large has been already attempted at the microcosm of public universities in the US in the form of Title IX investigations. Title IX legislation was initially intended to eliminate sexual discrimination from education programs or activities receiving Federal financial assistance. Since 2011, it has also been employed to conduct investigations of sexual harassment complaints on the preponderance of evidence standard. Kipnis uses extensive research into recent Title IX investigations and personal experience (as respondent in such a case) to argue that abandoning due process is highly problematic (because it results in punishing innocent men and women) and very ineffectual in decreasing sexual harassment. She strongly opposes the way in which the Title IX process has created a “culture of sexual paranoia… [and is] fundamentally altering the intellectual climate in higher education as a whole, to the point where ideas are construed as threats … and freedoms most of us used to take for granted are being whittled away or disappearing altogether” (p. 5). This development is both dangerous and counterproductive because “policies and codes that bolster traditional femininity - which has always favoured stories about female endangerment over stories of female agency - are the last thing in the world that’s going to reduce sexual assault” (p. 8).
Kipnis argues that, instead of turning university campuses into environments where women can competently negotiate sexual relations as equal partners, the constant association of sex and danger turns young women into helpless damsels in destress who have to rely on powerful bureaucrats for protection. Yet, in spite of ever increasing rules and regulations, the number of reported cases of sexual harassment is not going down. According to Title IX advocates this indicates a deeply entrenched rape culture. According to Kipnis, statistics show fewer cases of rape and assault. But what “counts as ‘sexual harassment’ has changed considerably” (p. 41).
When due process is abandoned “rampant accusation [becomes] the new norm on today’s campus” (p. 6) because the “accuser’s credibility is assumed [and] the accused is disbelieved at every turn” (p. 67). Instead of identifying and punishing bona fide harassers, investigators are bogged down by a rapidly increasing number of cases that have less and less to do with actual harassment. Kipnis reports a number of the cases she became aware of, several of which certainly appear frivolous.
In at least two cases the perpetrator wasn’t male. A female English professor and one of her students were “emailing about intimate aspects of their lives and histories” (p. 174) and later, when she reported that student for plagiarism, the student filed a sexual harassment complaint. University officials seized the professor’s computer and “ruled that the email exchanges had been sexually explicit enough to constitute a ‘relationship’, despite the fact that they’d never even touched” (p. 175). In another case, Teresa Buchanan, a professor of education, “was fired in 2015 …for swearing in class and making a joke about sex declining in long-term relationships” (fn, pp. 63-64). So much for protecting women.
And, of course, there is Kipnis’ own case. Even though she never committed anything remotely resembling sexual harassment, she found herself subjected to Title IX procedures. In a 30-page chapter (“My Title IX Inquisition,” pp. 127 - 157), she describes the Kafkaesque manner in which the investigation unfolded. The Title IX complaints were based on “statements made in [her] recent Chronicle article and subsequent statements” (p. 127). Because of writing an essay about sexual harassment (Kipnis, 2015), she had “been plunged into an underground world of secret tribunals and capricious, medieval rules” (p. 133). Kipnis points out that when her writing can be construed as “creating a hostile environment”, then “academic freedom doesn’t extend to academics discussing matters involving their own work place” (p. 137).
Kipnis was eventually cleared of any wrongdoing. But she remains concerned about the impact Title IX bureaucracy is having on academic freedom: “It’s a value fast disappearing in the corporatized university landscape … and self-censorship now rules the land” (p. 157). This should ring alarm bells for all of us. Ideas that are not expressed for fear of punishment do not disappear. Instead of being challenged in open debate, they “go into hiding” and can grow more dangerous.
Of further concern are skyrocketing costs for universities. On the one hand, an increasing number of those who were denied due process sue for damages. On the other hand, the Office for Civil Rights may impose costly investigations on schools suspected of non-compliance with Title IX procedures. To avoid that, universities spend “hundreds of millions … yearly on attempted compliance” (p. 38). In addition, settlements with victims often go into the hundreds of thousands. One can only imagine how many scholarships for women or underprivileged minorities could be funded with this money. So anyone in favour of abandoning due process should first read Kipnis’ book.
In spite of its many positive aspects Unwanted Advances is not flawless. Far too much space (two chapters, 126 pages) is devoted to the already massively publicized case of Peter Ludlow, former philosophy professor at Northwestern University, who had been accused by two students of sexual misconduct. While not defending all of Ludlow’s actions, Kipnis is not convinced that they merit his (forced) resignation from a tenured university position.
Ludlow, in his mid-fifties, and described as charismatic, hip, eloquent (p. 46), first got into trouble because he got involved with 20-year old Eunice Cho (not her real name). They visited several art events, restaurants and bars, he bought her alcohol, took her to his apartment and slept in the same bed with her. According to Cho, Ludlow coerced her into drinking and made unwelcome sexual advances. As a result she attempted to commit suicide and suffered PTSD-like symptoms.
Kipnis challenges the coherence of Cho’s story. Some of the (alleged) facts seem indeed quite shaky. But, oddly, Kipnis does not seem to notice a similar shakiness in Ludlow’s account. For example, defending himself against the allegation that he provided alcohol to an under-aged student, Ludlow “denies knowing that Plaintiff was underage and affirmatively states that in one of her online profiles Plaintiff had listed her birthday as December 1989 … [and] that on her Facebook page Plaintiff represented herself as having attended Seoul National University before coming to Northwestern…” (Ludlow, 2014, reply to # 12). Considering that Ludlow claims he had no romantic interest in Cho it is more than a bit creepy that he would go through several on-line accounts to find out how old she was, instead of simply asking her before buying her alcohol.
Other details of Ludlow’s story seem curious as well. He claims that after visiting several art shows and bars he “walked Plaintiff to a taxi stand where a taxi was waiting and offered money to pay for a cab to take her back to Evanston. At that time Plaintiff … [declined the cab-offer and] suggested they go out somewhere else” (Ludlow, 2014, reply to #18). One has to wonder why a middle aged professor who had no romantic interest in his former student would not part ways at this point, but Ludlow takes her to his apartment. While there, allegedly, she told him she wanted to date him. Instead of telling her he was not interested, Ludlow “raised a question about their age difference” (Ludlow, reply to # 20) and he continued hanging out with her. At one bar, (allegedly) Cho kissed Ludlow and he “initially did not pull away but as Plaintiff’s kissing became more involved he pulled away and told her to ‘cool it’” (Ludlow, reply to #24). Again, Ludlow could have easily removed himself from the situation but chose not to. And, eventually, he took Cho back to his apartment (allegedly to retrieve her video camera) and when she asked him if she could spend the night, he agreed and they both “fell asleep on his bed fully clothed and on top of the sheets” (Ludlow, 2014, reply to # 28). Even though they slept in the same bed, Ludlow claims he never touched Cho and asserts he “lacks sufficient knowledge … regarding what time Plaintiff woke” (Ludlow, reply to # 29). But if he indeed did not notice whether Cho woke up during the night, how can he know he did not move in his sleep and put his arm around her? Certainly someone less convinced of Ludlow’s innocence than Kipnis will find plenty of room for doubting his account of the events.
The second case involves grad-student Nola Hartley (again, not her real name), who had an intimate relationship with Ludlow two and a half years before Cho’s allegations against Ludlow were made public. While the relationship seemed consensual at the time, Hartley later changed her mind about this and claimed that “Ludlow had once had sex with her without her consent when she was drunk” (p. 96). Kipnis finds Hartley’s accusations even less trustworthy than Cho’s and provides some compelling evidence that much of the Title IX investigation of this case was unduly biased against Ludlow. Of course, noting the flaws in the process does not establish that Ludlow had done nothing wrong. Kipnis notes: “One problem with these retroactive accusations is that memory doesn’t exactly sharpen over time. In fact, most memory research demonstrates that subsequent events reshape and distort our memories, and the more we recall a given memory the less accurate it becomes” (p. 95). This applies to everyone’s memory - yet Kipnis places a great deal of trust in the accuracy of Ludlow’s memories.
Further, she seems unconcerned that there is a lot of drinking going on in Ludlow’s wake. Hartley reports being drunk on several occasions and Ludlow was “out drinking” with an under-aged Cho. Kipnis attempts to downplay the situation but her dismissive sarcasm seems out of place: “…buying Cho liquor was regarded as the equivalent of pushing heroin on her” (p. 87). Buying alcohol for minors is violating the law and Ludlow had checked preemptively social media for Cho’s age. And, perhaps, alcohol could account for some of the inconsistencies noted earlier.
In his deposition, Ludlow “denies that [Cho] was intoxicated at any point in the evening” (Ludlow 2014, reply to # 14). But it is notoriously difficult to evaluate one’s own intoxication (or no one would ever get charged with DUI), let alone someone else’s (whom one barely knows). Cho’s account is consistent with that of a person who has memory gaps because of intoxication. On the other hand (assuming he is telling the truth), Ludlow’s account is not consistent with that of a person who was sober and acting rationally. However, alcohol could have clouded his judgment enough for him to make a string of poor decisions. Kipnis argued, quite convincingly, that Title IX investigators tend to be convinced of the guilt of the accused and frequently dismiss evidence that challenges their conviction. It appears that her conviction of Ludlow’s innocence could be having a similar effect on her judgment.
Returning from the university microcosm to the “outside world”, it might be instructive to note some striking parallels between Ludlow’s case and that of Roy Moore (McCrummen, Reinhard & Crites, 2017). Both men were involved with much younger women, both men were accused of criminal offences, in both cases charges were brought forward (long) after the fact, and both cases caused much public outrage. Both men resolutely denied any wrongdoing. Kipnis introduced “reasonable doubt” in Ludlow’s conviction. And there are at least some people who would use Kipnis’ memory distortion argument to defend Moore. But, possibly, in this case Kipnis might trust Moore’s accusers’ memories of events that took place nearly 40 years ago. None of us is immune to confirmation bias - we tend to believe what we want to believe because we favour evidence supporting those beliefs. But for the victims of sexual assault it does not matter whether the accused is someone we want to be innocent or someone we despise. Their suffering is real in both cases. It is precisely for that reason that we need due process when evaluating sexual harassment charges. Reminding us of that is perhaps the greatest contribution of Unwanted Advances.
- Emba, Christine (2017). We’re misunderstanding due process. The Washington Post. On-line, accessed 30/12/2017: https://www.washingtonpost.com/opinions/the-due-process-assault-freak-out-is-a-fever-dream/2017/12/01/8f14cd80-d6d5-11e7-a986-d0a9770d9a3e_story.html
- Kipnis, Laura (2015). Sexual Paranoia Strikes Academe. The Chronicle of Higher Education. On-Line, accessed on 30/12/2017: http://laurakipnis.com/wp-content/uploads/2010/08/Sexual-Paranoia-Strikes-Academe.pdf
- Ludlow, Peter (2014). Defendant’s answer On-line, accessed 30/12/2017: https://docs.google.com/file/d/0B9etoTst5TwXOWNGZXgxZ0N5U0k
- McCrummen, Stephanie, Beth Reinhard and Alice Crites (2017). Woman says Roy Moore initiated sexual encounter when she was 14, he was 32. The Washington Post. On-line, accessed 30/12/2017: https://www.washingtonpost.com/investigations/woman-says-roy-moore-initiated-sexual-encounter-when-she-was-14-he-was-32/2017/11/09/1f495878-c293-11e7-afe9-4f60b5a6c4a0_story.html
- Tobin, Jeanine (2017). The #MeToo Movement has thrown due process out the window. Chicago Tribune. On-line, accessed 30/12/2017: http://www.chicagotribune.com/news/opinion/letters/ct-metoo-sexual-harassment-trial-20171215-story.html