Consent 2004 / VimeoIt was undoubtedly a year of heightened paranoia
about rape on college campuses, with everyone from Lena Dunham to
President Obama demanding immediate action to curtail a purported
epidemic of sexual violence. But due to a string of embarrassments,
2014 ended on surprisingly sour note for illiberal activists
conspiring to shunt aside due process in their zeal to eradicate an
exaggerated and politicized problem.
Still, while the voices of reason—of fairness for accusers
and the accused—scored some ideological victories this
year, 2015 will likely present even more daunting challenges. Dark
clouds loom on the horizon, according to several legal experts who
are advocates for campus due process or involved in rape disputes.
In particular, a wave of wrongheaded affirmative consent
policies—which force students to adopt bizarre and limiting sexual
consent customs—could sweep the nation.
"I would guess that affirmative-consent ordinances will become
law in various municipalities governed by Democratic machines, like
Chicago (as well as New York City)," wrote Hans Bader, a senior
attorney at the Competitive Enterprise Institute and former Office
for Civil Rights lawyer, in an email to
Reason.
"'Affirmative consent' is like quasi-religious catechism for the
Democrats."
In 2014, government policymakers seized upon a controversial
statistic—that one-in-five women will become victims of sexual
assault or attempted sexual assault while at college—like never
before. Long had that number been part of certain feminist
activists' mantras, but last January, President Obama
cited it in a memorandum establishing a task force to combat
the campus rape crisis. Other areas of government used the
statistic to justify firmer measures. The Department of Education
continued to punish colleges for failing to tip the scales in favor
of the accusers during rape trials. And the state of California,
decided—
incorrectly—that
misunderstandings surrounding the decision to have sex were the
main problem, which prompted the legislature to codify affirmative
consent and compel colleges to enforce it.
Affirmative consent is a baffling way to fight sexual assault.
Rape is a crime committed by a minority of determined, serial
perpetrators; it’s unclear why activists think that forcing
students to jump through new hoops before they have sex will deter
these monsters. The policy
will produce
more mutual confusion and false accusations,
however.
But sadly, the compelling arguments against affirmative consent
haven’t dissuaded college administrators from codifying it,
according to Gina Lauterio, program director at Stop Abusive and
Violent Environments, an advocacy organization for victims of
sexual assault
and false allegations.
"By now you’ve probably heard many reasonable arguments against
both affirmative consent and increased federal regulation in campus
sexual assault, and they were probably convincing," Lauterio told
Reason. "That’s irrelevant. There were severe logical
loopholes in [California’s affirmative consent bill] and it still
passed, and elsewhere affirmative consent is being passed by
executive order, therefore making a body of reasonable minds
unnecessary."
Activists’ reliance on the misleading 1-in-5 statistic might, at
least, subside in 2015. New data from the federal government’s
Bureau of Justice statistics
indicated that students were actually
less likely
to be victimized than non-students, and suffered rape rates that
were nowhere near 1-in-5.
Politico noted that the
statistic was "increasingly disputed," and Sen. Kirsten Gillibrand
(D-New York), a firm believer in tougher anti-rape policies,
quietly scrubbed any mention of the stat from her website.
The
collapse of Rolling Stone's report on a gang rape
at the University of Virginia (UVA) was perhaps an even more
dramatic setback for activists. Shortly after the incredible story
broke, UVA President Teresa Sullivan suspended all campus
fraternities, and people predisposed to believe that campuses are
veritable rape factories took up their pitchforks. But the story’s
thorough debunking left them with egg on their faces. As
Reason contributor Cathy Young noted, the crusade against
rape culture undeniably "
stumbled" in
2014.
Unfortunately, none of these small wins for sanity about the
scope of violence on college campuses mean that due process is
destined to make a comeback in 2015. Lawyers Matt Kaiser, an
adjunct professor of law at Georgetown University, and Justin
Dillon, a former Assistant U.S. Attorney, represent dozens of
students accused of sexual assault through their firm Kaiser,
Legrand & Dillon PLLC. They have seen firsthand just how
shoddy the farcical campus adjudication processes are: Accused
students are frequently denied basic due process and placed at the
mercy of administrators and faculty members with no understanding
of how a fair trial should work. They see little reason to be
optimistic that the problem is going away.
"The Department of Education has made clear that it doesn’t
really care about due process, which means colleges won’t
either—until they start having to pay out large damage awards to
wrongly convicted students," Dillon told
Reason. "The more
that happens, the more likely you are to see the pendulum start
swinging back to a sensible middle."
Dillon and Kaiser agreed that while some colleges were doing a
better job of establishing fair procedures than others, the tide
isn’t exactly turning yet.
"So far, the UVA story crumbling and the debunking of the 1-in-5
statistic don't seem to have changed the way these cases are
handled," said Kaiser. "Hopefully there will be more media scrutiny
and that will start to affect how these cases are resolved on
campus."
Advocates for due process haven’t won the policy battle—let
alone the war—yet, which means 2015 could be another rough year for
students’ rights. But it’s impossible to deny that the chorus of
voices demanding an end to kangaroo courts grew louder this year,
with
Harvard’s law faculty,
Slate magazine,
conservative
organizations, and libertarians all decrying the travesties of
campus injustice.
"At the beginning of 2014, only a tiny handful of commentators
and scholars were skeptical of the idea that American universities
are plagued by a culture of rampant sexual violence," Caroline
Kitchens, senior research associate at the American Enterprise
Institute, told
Reason. "Over the past year, the national
discussion on campus rape has evolved dramatically, and I see a
glimmer of a growing consensus that we need to focus on empowering
the criminal justice system to handle cases of campus rape rather
than university courts."
Still, Kaiser and Dillon don't think they will need to quit
their jobs anytime soon.
"Affirmative consent laws will, unfortunately for the students
subjected to them, be a full-employment act for lawyers who do this
work," wrote Dillon. "California’s law, for example, is terribly
worded and contrary to everything we know about how sex between
human persons actually works."
