April 2015
The college sexual assault scare is just the most recent in a line of similar
rampant social epidemics. Remember the day-care crisis?
The campus sexual
assault panic — one of many runaway social epidemics in our nation’s history
that have ruined innocent lives and corrupted justice — has now reached its
peak. A return to sanity is called for before more wreckage occurs.
My own first memory
of a similar panic is the hunt for
Communists in America in the period following World War II. There was the
infamous “Red Channels,” an anti-communist pamphlet financed primarily by Alfred
Kohlberg, a textile magnate with business interests in China and an ally of
Chiang Kai-shek. The publication served as a blacklist for the entertainment
industry, ending the careers of anyone reportedly linked to organizations
remotely identifiable as “progressive.” There was also the House Un-American
Activities Committee, and the never-to-be-forgotten Senator Joseph McCarthy.
Together, these men helped create a national climate of suspicion that ferreted
out very few actual security threats, but ended up punishing many innocents.
Remnants of the hunt persisted, but the “scare” essentially died with the
senator himself in 1957.
A more bizarre
panic emerged decades later in an unlikely place — child daycare centers. In the
early 1980s, reports of sexual abuse by child care workers were picked up by
national news outlets and struck fear into parents around the country.
Allegations of sexual molestation, including rape, allegedly committed on young
children by teachers and school employees, flooded police stations. These
accusations often crossed over from the improbable to the utterly fantastic
(sometimes with a Satanic bent). But a panoply of unscientific physical and
psychological tests, bolstered by highly suggestive child interview methods,
proved sufficient to land a still-uncounted number of innocent men and women in
prison.
District attorneys
and jurors alike bowed to extreme public pressure and railroaded defendants (who
were presumed guilty upon being accused) without mercy — indeed they still
resist righting their wrongs. The panic raged into the 1990s until scientists
like Maggie Bruck, and journalists such as Debbie Nathan and Pulitzer Prize
winner Dorothy Rabinowitz, raised sufficient concerns to force judges to
re-examine and vacate convictions, a process that continues to this day.
(Disclosure: I was on the defense team that freed Bernard Baran, and I continue
to work on exonerating Gerald Amirault, both of Massachusetts.)
The latest national
hysteria over campus sexual assault combines aspects of its predecessors: the
salacious outrage that characterized the daycare sex panic and the dubious
federal stamp of approval that made McCarthyism’s excesses so dangerous.
Spectacular — but widely disputed — statistics are touted: 1 in 5 women is
sexually assaulted in college, 1 in 3 male students is a potential rapist. The
rhetoric popularized by mattress protests and awareness documentaries is a
simple one: “Believe the accuser!”
The idea that
college campuses are among the most dangerous places for young American women
has become so pervasive that when Rolling Stone published one woman’s outlandish
account of a brutal gang rape in a University of Virginia fraternity house (a
story later proven to be inaccurate on the basis of investigative reporting by
The Washington Post), readers swallowed the tale unquestioningly. Finally, the
campus disciplinary boards — woefully lacking in even basic standards of due
process — are vowing to adjudicate these ostensibly violent felonies and
reflexively punishing virtually all who are accused.
Acquaintance or
“date rape” is a serious and historically under-enforced offense in the criminal
justice system. Sexual violence against women — against anyone — cannot be
tolerated. But it’s also true that college campuses are hotbeds of alcohol abuse
and sexual activity among young adults often inexperienced with both.
Alcohol-fueled and often ambiguous sexual encounters may result in emotional
injury. But if the problem is young people’s inability to recognize and respect
boundaries, the solution is not to punish a wide range of campus behaviors that
would be legally acceptable in the “real world.”
What’s more, the
definition of “sexual assault” has become so broad as to encompass nearly all
romantic contact. A sexual advance is considered “unwelcome” on subjective,
rather than objective, grounds. In other words, if a complainant feels she was
violated, then she was. This rationale is the basis for “affirmative consent”
(colloquially known as “yes means yes”) laws, which several states have imposed
upon their campuses. Ezra Klein, editor-in-chief of Vox.com and a supporter of
California’s “yes means yes” law, admits the law overreaches and that under
affirmative consent, “too much counts as sexual assault.” Even so, Klein
believes that the innocent men (and occasionally women) who will be thrown out
of school are necessary sacrifices to the greater cause of combatting sexual
assault on campus. Rhetoric and ideology have overtaken rationality and
fairness.
College bureaucrats
have taken to adjudicating felonies with a vengeance, largely out of fear of
losing federal government funds. In April 2011, the Office of Civil Rights of
the federal Department of Education sent a “Dear Colleague” letter to every
college and university in the country that accepted federal funds — that is,
nearly every school in the nation — advising that unpunished sexual assault
would be viewed as a form of unlawful sexual harassment. The ultimate penalty
for schools is the withdrawal of federal funding. A more recent update of that
letter from the Obama administration advised colleges to reduce the evidentiary
standard needed to convict an accused student of sexual assault.
In a race to
capitulate, Harvard University one-upped other supine campus administrators last
summer by instituting a sexual assault procedure so problematic from the
viewpoint of procedural fairness that 28 members of Harvard Law School faculty
published an open letter decrying the administration’s “jettisoning [of] balance
and fairness in the rush to appease certain federal administrative officials.”
The law school then took the remarkable step of actually exempting itself from
Harvard’s university-wide sexual assault procedures earlier this year, although
the battle for — and against — fairness still rages on.
That battle has
been lost at the university level at Harvard, and virtually everywhere in
academia. Indeed, earlier this month Columbia University’s administration
announced that Columbia students (excepting, interestingly, those women at
Columbia’s sister school, Barnard) will be required to participate in a new
“sexual respect education program” in order to graduate. The “training” will
feature a menu of programmatic options, including an hour-long workshop on
“healthy relationships” and various artistic projects. Thus, the sex panic in
academia now brings us more training programs, supplementing the indoctrination
sessions that have for some time now been features of first year orientation
programs at most colleges.
The situation on
college campuses has become so dire that civil libertarians are calling for
sexual assault investigations to be left to police and prosecutors. Despite the
fact that conviction in a criminal court carries severe sentences and other
harsh ramifications, frustrated and fearful students, parents, and lawyers seem
prepared to
risk criminal
convictions
in their search for investigatory and
prosecutorial fairness.
If the past is
prologue, it is almost certain that the current campus sexual assault madness
will burn itself out, leaving in its wake the wreckage of many young lives. My
concern is how long it will be before sanity and decency return.
Harvey Silverglate,
a criminal defense and civil liberties lawyer in Boston, is the co-author of
“The Shadow University: The Betrayal of Liberty on America’s Campuses.” He is
the co-founder, and current chairman, of the Foundation for Individual Rights in
Education. Paralegals Samantha Miller and Timothy Moore assisted the author.
The Boston Globe, February 20, 2015.
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