Let’s be very clear from the outset: Sexual assault is a crime. Rape is a felony. Perpetrators must be called to account and victims deserve justice. Critiquing the processes through which such accounting and justice are determined in no way diminishes the seriousness of the crimes themselves.
But let’s also be very clear that, especially on American college campuses, there are few crimes where the deck is more stacked against the accused. Good intentions, political capital, and the lure of presumed expertise have combined to create a system that inflates the incident rate, perpetuates misinformation, and ignores due process. In what has been aptly described as an over-correction, higher education has turned the very premise of judicial logic on its head.
There have been recent attempts balance the scales. It is a thankless task. As demonstrated by the New York Times review of a new book by KC Johnson and Stuart Taylor Jr., any suggestion that the current state of due process on college campuses harms the accused is dismissed as misogyny. Up against distorted presentations of cases like those highlighted in “The Hunting Ground”—a distortion that nearly bordered on parody—or the performance art of a woman carrying a mattress around campus long after the student she’d accused had been exonerated, reality is, sadly, a weak tool. Nowhere has this losing battle been better illustrated than the continuing story of Rolling Stone’s Jackie: Long after it had been irrefutably established that she’d made up the rape that was the centerpiece of the magazine’s article, “A Rape on Campus,” long after her catfishing scheme to attract the attention of another student had been exposed, even after the absurdity of supposed texts from an imaginary suiter were revealed as dialog from an episode of “Dawson’s Creek,” attorneys for Rolling Stone insist that “something” must have happened. What is the old saying? Never let facts get in the way of a good story.
How did we get here?
The Regulatory Environment
We can begin by stipulating that victims of sexual assault have not historically been treated well or fairly by the legal system, college campuses, even friends and family. We can further stipulate that, as a result, victims of sexual assault may have shown an understandable reluctance to report these crimes.
Changes in reporting procedures and interview techniques, and the institution of shield laws that preclude irrelevant information about an accuser during trial, are therefore laudatory. All bolster the pursuit of justice for the victims of sexual assault.
Due process for the accused, however, again especially on college campuses, has taken a very different path. In recent years, reinterpretation of existing federal regulations, new reporting requirements, and guidelines from the Department of Education’s Office of Civil Rights that far exceed its presumed role have created an environment that is simultaneously incomprehensible and pointedly toxic.
In 1972, Title IX of the Education Amendments created federal regulations that prohibited discrimination based on sex at educational institutions. Specifically:
This article continues at [Real Clear Politics] Sexual Assault's Broken System of Justice