Wednesday, May 7, 2014

Why Colleges Fail at Punishing Rapists, and a Radical Idea for Justice

Sexual Assault on campus is problem that has been receiving unprecedented amounts of attention lately.  Just a few days ago, it was announced that 55 colleges are under investigation for failing to adequately handle sexual assault and create a non-discriminatory environment under Title IX, a federal law that prohibits discrimination based on sex in all institutions that receive federal funding.  It is commonly held that 1 in 4 female students will be assaulted during their time in college, though it must be acknowledged that all such statistics are disputed.  Nevertheless, it is increasingly clear that no American college does anything approaching a decent job of punishing rapists and doing justice to survivors.



The colleges are being investigated subsequent to complaints filed by various women attending these colleges.  The specifics vary, but the overall theme of the complaints is similar: a woman was raped, complained to the college, and the college authorities didn't do anything to the male student.  Every now and then, the college also stands accused of having woefully tone-deaf/actively hostile mental health services as well.

Here's a small sample of accounts of rape victims seeing their attacker go unpunished from elite schools:
Columbia
Harvard
MIT
MIT again
USC, where the survivor openly shared her name and the name of her rapist
Amherst, the first of all these accounts
Yale, where six individuals were found guilty of "non-consensual sex", but still allowed to graduate.
And far too many more.

Why is it that so many schools are monumentally failing at protecting female (and male) students on campus?  The Title IX complaints would have us believe that rape culture and wilful inaction on the part of the colleges is the entirety of the problem, but it's hard to believe that colleges steeped in liberalism for over 50 years are all uniformly conspiring against the (mostly female) rape victims.  No, the truth is harder to face, and thus it is left unstated.  The reason why colleges are so bad at punishing rapists is an ancient principle of American Justice: Innocent Until Proven Guilty.

Rape survivor advocates often complain bitterly that their accounts are not believed by administrators.  This is justifiable.  For many years, and still to this day as detailed in the accounts above many prosecutors choose not to take rape claims forward and campus disciplinary boards choose to not convict individuals.  Much of this may still be due to victim blaming.  Why were you drinking?  Could you have said yes and forgotten because you were too drunk?

But a large part of it is a fundamental principle of justice- that no innocent person be made to suffer for a crime they did not commit.  The number of false allegations of rape is of course impossible to evaluate.  After all, who judges if an accusation is false?  Nonetheless, the rate is said to be anywhere from 2% to 40%, though multiple studies and experts have coalesced around the 2-8% range.  Are we willing to expel 1 innocent man from college in exchange for expelling 10 guilty ones?  That would rather turn on it's head Judge Sir William Blackstone's ancient declaration that, "Better that ten guilty persons escape than one innocent suffer," a statement that forms the bedrock of the British and American Legal Systems.  Ben Franklin's version is more extreme: "That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved."  Colleges are indeed publicly raising concerns that attempts to more strongly prosecute offences will lead to a trampling of the rights of the accused and punishment of the innocent.

And nowhere is it harder to determine innocence or guilt than rape.  Especially in the college setting, there is no damning forensic evidence (any evidence can be explained away by 'rough' consensual sex).  Witnesses are frequently drunk, biased, or both.  The accused and the accuser are frequently intoxicated as well.  Innocence and guilt comes down to who do you believe more?  The exact thing that rape advocates decry ends up happening- judging the accuser's credibility, with all of the human biases and problems that entails (even if the question "Why did you wear that dress if you didn't intend to have sex?" isn't asked, it's still eating away at the accuser's credibility in the minds of the disciplinary board).  And what's more, rape is such an incredibly serious charge.  All too frequently, college admins must choose between either letting an accused man off the hook entirely or practically destroying their life, and decide that the accuser's account just isn't credible enough.  And public cases of falsely accused men whose lives have been destroyed reduce any appetite college admins might have to expel a student.  Finally, cultural biases play into this- rape is something 'scary black men' from the inner cities do- not something done by clean shaven college men in a suit and tie with a job waiting at Goldman Sachs and no criminal record.

All this contributes to a widely reported problem: rape victims not coming forward.  Survivors see media accounts, and watch as survivors who do come forward are torn apart in the press.  They frequently carry a deep shame for "letting it happen to them", and don't want to talk about it with anyone.  Finally, they are told by police detectives and campus deans that pressing forward with charges is not likely to lead to a "conviction", an accurate if depressing statement.  College guarantees of anonymity (which serve to protect the identities of the victim and the accused) make this problem worse.  In the case of a serial rapist, by keeping the names of both the victim and the rapist secret, no other victim learns that another woman was assaulted, and they are all thus less likely to come forward unless they meet another victim by random chance (see the Columbia case above).  Thus, say 5 women are assaulted by 1 serial rapist.  One victim is brave enough to come forward on her own.  She loses the case, and the other four never hear about it.

So are we stuck between a rock and a hard place?  Must we choose between either destroying dozens of innocent lives or letting hundreds of rapists continue to offend with impunity on campus?  No.  There is another option, one that is facilitated by modern technology and modern research into the rape epidemic.

Rape victims are all too tragically common.  But rapists?  They're far less so.  According to at least one study, 9 in 10 college sex assaults are carried out by serial rapists.  What does this mean?  We can make a big dent in the problem not by trying to determine whether any one incident was rape or not, but by finding a pattern of predatory behavior that identifies a serial rapist.

What does this mean?  Imagine a college with a Computerized Campus Sexual Assault Registry:

A freshmen woman is sexually assaulted by a freshmen male.  She wakes up, and gets away.  She goes to her deans, and asks them what to do.  They offer her the option of confidentially registering a case in their system.  Anything she wants to do, she can- including dropping the case and doing nothing.  But first off, she has to register a case in the campus registry.  She goes to a guarded computer.  There, she enters the accuser's name and identifying information, perhaps a brief account of what happened, and her contact information.  The terminal reports that she is the only accuser against the student in question.  The student is then told by the deans: if she wants, she can proceed with a case, but as a single accuser getting justice will not be likely.  She is informed, she can do nothing for now- and it will not affect her ability to go forward with the case at any time.  She decides to simply file the report.  Her anonymity is guaranteed- after she files this report, no one will ever know who she is or be able to contact her about it unless she wants them to.

A year later, another freshmen girl is assaulted by the same man.  She also goes to her deans, who ask her to enter her case with the rapist's name into the system.  This time, the computer spits back a match: another student was assaulted by the same rapist.  The computer does not disclose the name of the other woman, but offers to send a message to that first victim asking if she wants to help press the case.  The second woman says yes.

A message is sent, and the first victim agrees to break her anonymity and meet with the new victim.  They jointly agree to go forward together to file a complaint against the man who raped them both.  Now, the college disciplinary board has two accounts from two victims who never knew each other.  They can expel the rapist, confident in their judgement.

Do you see the advantages of this system?  The focus goes from a rape survivor's credibility being subjected to the withering attacks of a rapists' defense lawyers to the detection of patterns that indicate predatory behavior on the part of rapists.  A rapist may be able to use doubt to discredit one accuser.  Two or Three?  Not happening.

Are there problems with this system?  Certainly, starting with the fact that the first accuser gets no justice, possibly for years.  But that objection assumes that she would get justice under the present system, and repeated accounts above have shown that she will likely not.  And, nothing is stopping the first victim from pressing forward with her case if she chooses.

Next, doesn't this allow for unanswered accusations against men to linger for years, with no opportunity to collect evidence to rebut the accusers?  This would be a problem, if any of that evidence was relevant in the least.  We're talking about college rape- where all too frequently none of that testimony from so-called friends and bystanders is at all reliable and forensic evidence is not useful.  And, the presence of multiple complaints does not automatically condemn a man- the victims still have to share their story in front of a disciplinary board, where the accused can (try to) answer the charges of multiple accusers.

Can't this database be used to find dirt by jilted ex-girlfriends eager to get back at their boyfriends?  The fact that they have to make a complaint of rape to get access to this database will hopefully deter any such behavior, and the rate of false accusations should not rise to any higher than it is now.

Finally, and perhaps most problematically, is that this system is designed to catch rapists after the act (or rather, after two acts).  Not to prevent them before they happen.  However, there is no reason not to pursue all available avenues, including this registry AND changing culture/encourage bystander intervention, as efforts like this seek to do.

Is this an ideal solution?  No.  But I think an anonymous campus sexual assault registry will help countless women (and a few men) achieve justice against rapists, and kick the small number of rapists off of college campuses nationwide.