Sexual-Assault Task-Force Folly

by Samantha Harris
The White House report regards sexual assault as a national crisis, but not a crime.

On April 29, the White House Task Force to Protect Students from Sexual Assault issued its first report, “Not Alone,” which is intended to help colleges and universities “live up to their obligation to protect students from sexual violence.”

There is no question that colleges and universities are failing catastrophically at handling claims of sexual violence on campus, and that this must change. But the task force’s recommendations are not the answer. Among other things, claims of sexual violence must be addressed in a way that protects the rights of students accused of these very serious offenses. Unfortunately, the Task Force Report all but ignores the rights of accused students, and will undoubtedly worsen the already critical due-process crisis on our college campuses. Indeed, liberal civil libertarian Wendy Kaminer suggests that a more appropriate title for the report would have been “Believe the Victim.”

A lack of due process has long been a problem in college judicial systems. But over the past few years, as the Obama administration has stepped up efforts to enforce federal sex-discrimination laws on campus, the Foundation for Individual Rights in Education (FIRE) has seen a number of particularly egregious due-process violations at colleges and universities, which undoubtedly are fearful of losing their federal funding — the ultimate remedy available to the Department of Education’s Office for Civil Rights (OCR) if an institution fails to comply with anti-discrimination laws.

Whenever the federal government imposes new requirements on colleges and universities about handling claims of sexual violence, it justifies these requirements with the shocking statement that “one in five women is sexually assaulted in college.” The new Task Force Report leads off with this statement. President Obama also cited it when he announced the creation of the task force back in January, and the OCR cited it in its April 4, 2011, “Dear Colleague” letter requiring colleges to use a low, “preponderance of the evidence” (i.e., the charge is more likely accurate than not) standard when adjudicating claims of sexual harassment or sexual violence.

But this figure, which comes from the 2007 Campus Sexual Assault (CSA) Study, is hardly undisputed. The questions used to assess the prevalence of sexual violence included questions about sexual contact that occurred in cases where someone was “drunk,” not only in cases where the person was “incapacitated.” Moreover, the study asked about a variety of forms of sexual contact, including not only penetration and oral sex but also “forced kissing” and “rubbing up against you in a sexual way, even if it is over your clothes.”

The CSA Study’s broad and ambiguous definitions of sexual violence may have significantly affected the reported prevalence of sexual violence: Cathy Young has reported that “three-quarters of the female students who were classified as victims of sexual assault by incapacitation did not believe they had been raped; even when only incidents involving penetration were counted, nearly two-thirds did not call it rape.”

It is therefore alarming to see the Task Force Report double down on the questionable methodology used in the CSA Study to assess rates of sexual violence on campus.

One of the Task Force Report’s major recommendations is that universities conduct “campus climate surveys” to assess (among other things) rates of sexual violence — indeed, the report states that these surveys may be mandatory by 2016. But the “toolkit” included to help schools create their campus-climate surveys includes a questionnaire that simply repeats the ambiguous questions from the CSA Study. This, of course, virtually guarantees that a high percentage of survey respondents will meet the definition of a “victim of sexual violence,” even if many of those respondents did not experience any of what most people would call violence and do not feel they were victimized.

Frankly, one can’t help wondering if even those who parrot the one-in-five statistic as an article of faith truly believe in the figure’s accuracy. Because if they do, then their proposals for action — which deemphasize the importance of law enforcement despite the fact that rape and sexual assault are among society’s most heinous crimes — are woefully insufficient. As the Rape, Abuse & Incest National Network (RAINN) told the White House, “treating this as a crime” is critical:

It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault? We need to get to a point where it seems just as inappropriate to treat rape so lightly. . . . We urge the federal government to explore ways to ensure that colleges and universities treat allegations of sexual assault as they would murder and other violent felonies. The fact that the criminal-justice process is difficult and imperfect, while true, is not sufficient justification for bypassing it in favor of an internal system that will never be up to the challenge.

Of course, sexual assault on campus must be decisively and effectively addressed even if its prevalence is far, far less than one in five. But the federal government’s using inflated numbers to incite a moral panic is not the answer, nor is doubling down on college judicial systems that are unequipped to handle such serious claims. To quote Christina Hoff Sommers, “sexual violence is too serious a matter for antics, for politically motivated posturing.” Indeed.

— Samantha Harris, an attorney, is director of policy research at the Foundation for Individual Rights in Education (thefire.org).