Consider the almost comically inept, and entirely unethical, reporting of Rolling Stone in the matter of the gang-rape allegation at the University of Virginia: the university’s ham-fisted overreaction in suspending all fraternities and sororities; the enraged protests; the subsequent media firestorms and sociological navel-gazing; and — most important — the fact that all of the preceding was based on a fiction that nobody bothered to try to verify. Taken together, that constitutes an excellent argument for something we already know: that there is only one public institution well suited to dealing with rape and other crimes, and it is the criminal-justice system.
The odd and lamentable encroachment of deans of students and other university administrators into a field that is properly the responsibility of police and prosecutors is a worst-of-both-worlds outcome: On the one hand, as critics right and left have pointed out, campus tribunals very often deprive the accused of anything resembling a fair and evidence-based process; on the other hand — and this cannot be emphasized enough — those who are guilty of the heinous crime of rape deserve far more than a forced transfer to another college: They deserve prison time. The usurpation of the criminal-justice function by campus kangaroo courts thereby manages to be simultaneously unfair to the accused and too easy on the guilty.
For a point of comparison, consider the clerical sex-abuse scandal in the Catholic Church, in which critics of episcopal inaction insisted that Church authorities had a moral responsibility — and, in many circumstances, a legal obligation — to report credible allegations of sexual abuse to the proper police authorities rather than try to address the issue through closed proceedings under clerical management. In a rare moment of good sense, the New York Times editorial board argued that in excluding criminal investigators from the process, the Catholic bishops exhibited a “high-handedness toward civil authority that helped perpetuate the scandal.” A college of liberal arts is no more suited to conducting what is rightly a criminal investigation than is a college of cardinals.
The matter of estimating what share of rape allegations is false — not merely impossible to prove, but proffered in bad faith — is a difficult and tricky business. Some estimates run quite high, though there is reason to be skeptical of them; more-cautious calculations put the figure at somewhere between 5 percent and 8 percent, which is similar to the proportion of baseless allegations in other crimes. That is a modest percentage, but not one that can or should be ignored: If one in eleven, or one in 20, of those accused of rape are facing false charges made with malice aforethought, they deserve all of the due-process protections that the American legal system has to offer. Indeed, if the number is one in 1 million, the same principle applies, which is precisely why all of our traditional safeguards for the accused — beginning with the presumption of innocence — have shown themselves over the centuries to be both prudent and necessary.
Outside of the criminal-justice system, standards of evidence are low and malleable, which is where Rolling Stone et al. come in. When the Rolling Stone account of the events at the University of Virginia fell apart, the Washington Post published an ill-conceived column by Zerlina Maxwell, a lawyer, under a headline insisting that “we should automatically believe rape victims.” The Post subsequently revised that headline to “we should generally believe rape victims,” but even that contains a measure of question-begging: Not every person who makes an allegation of rape is a rape victim. Whatever the share of unfounded accusations is, it is not zero: At the same time the University of Virginia story was coming unraveled, a 21-year-old woman in Colorado was being sentenced (to six months’ house arrest and electronic monitoring) for making entirely fictitious allegations against a local National Guardsman, who as a consequence of that allegation lost his job, was denied deployment with his National Guard unit, and was rendered unable to so much as rent an apartment. Even though his eventual exoneration left the wrongly accused man scarred, this is precisely why the criminal-justice system should be the principal agent in rape cases — determining whether a crime has in fact occurred is the first priority.
That is a task for which university courts are ill suited, and for which the court of public opinion is even worse suited, especially when public opinion is being shaped by irresponsible and unethical journalism such as that engaged in by Rolling Stone. While the standards of evidence in journalism need not be as high as they are in criminal cases, there are some standards, and by agreeing not only to take a single source at her word but also to forgo such basic investigation as speaking to other parties familiar with the episode in question, Rolling Stone grievously violated fundamental ethical standards to advance an accusation that turns out to be unsupported. That Rolling Stone had departed from ethical standards of conduct was clear from its report, meaning that commentators who relied upon the magazine’s account to further their own agendas did so in the knowledge that they were relying upon irresponsible reporting, and are therefore complicit in Rolling Stone’s ethical transgressions.
Rape is a vicious, horrific crime, one that, like many such crimes, disproportionately victimizes the vulnerable: the poor, single mothers, those living in isolated communities, and, notably, children: The Department of Justice estimates that a fifth of all rape victims are no more than twelve years old. Rape is also shockingly prevalent in our jails and penitentiaries, a genuine national scandal. Victims deserve to be treated with sensitivity and compassion, and perpetrators deserve to be prosecuted aggressively — but not by the dean of students, and not by Rolling Stone.