Last week I know I raised some eyebrows when I suggested that Betsy DeVos and the Education Department might do some good by changing the Obama Administration's Title IX guidelines for university handling of sexual harassment charges on campus. I based that comment largely on a remarkable book I had read a couple of months back, Unwanted Advances, by Laura Kipnis, a professor of media studies at Northwestern University.
To make the long story of how the book came to be written rather short, Kipnis became interested the case of a colleague (broadly defined) or hers, a philosophy professor named Peter Ludlow, who had lost his job an his livelihood thanks to accusations by an undergraduate whom Kipnis chooses to refer to pseudonymously as Eunice Cho, and a graduate student she calls Nola Hartley. Cho, who was only a freshman at the time she got to know Ludlow, never accused him of having sex with her, although she claimed he had spooned against her while they spent one night in hsi apartment after they had been out having drinks together. Hartley on the other had had a substantial and very well-documented relationship (this is the age of texts) with Ludlow, obviously based upon mutual affection, but had subsequently decided that he had used his power as a professor (even though he was not her professor at the time) to coerce her into the relationship. What evidently struck Kipnis, a younger baby boomer who is now about 60, was that both cases were based on an idea she had learned to reject in her youth: the idea that women of 18 or older were fully capable of making, and living with, their own decisions about whom to have sex with. Kipnis, a heterosexual herself, has continued to take advantage of that freedom all her life, she lets us know, and even admits to occasionally having had sex with students. She wrote an article making this argument for the Chronicle of Higher Education, and was soon informed that she was the subject of a Title IX complaint brought by some women at Northwestern who accused her of creating an unfriendly environment. Rather than back down, she got more deeply involved in the whole subject. Meanwhile, university officials had found Ludlow guilty of sexual assault and ended his career.
Kipnis discusses the two accusations and how they were adjudicated at great length with the help of the files on the investigation that Ludlow gave her. I will confine myself to some observations of my own. The most important thing to understand about the new campus doctrine and procedures, in my opinion, is that they are totally contrary to Anglo-American legal traditions as they have evolved at least since Magna Carta in 1215. To begin with, there is no presumption of innocence for men accused of sexual harassment. The women who bring accusations are routinely referred to not as accusers, but as survivors, implying that the question of whether a crime took place has already been resolved. That is connected to a second principle of the new procedures: the survivors, not impartial third parties, decide whether a crime has been committed, based on their own feelings. That is how Hartley, the grad student, could get a finding against Ludlow despite reams of texts showing that she had been not only a consensual but a very enthusiastic and lovestruck participant in their relationship. She had subsequently decided that his superior power had coerced her (without the slightest indication that he had tried in any way to use it to force her into bed), and that was that. That in turn leads us to the whole question of reasonable doubt, one of the standards of proof that the Obama Administration told colleges not to use in sexual assault cases.
When sexual assault activists are asked why colleges cannot simply leave criminal accusations to the criminal justice system, they routinely reply that survivors (that is, accusers) do not want to undergo the ordeal that would result, and that it is very difficult to get convictions there. That is true, and there are two reasons for it. The first is that much of what constitutes "sexual assault" on campus today, such as simple unwanted touching with clothes on, isn't illegal at all. But the second is that our criminal justice system requires proof beyond a reasonable doubt, which by definition is most unlikely to be available in what is referred to as a "he said, she said" situation. When the accused tells one story and the accuser another, and there is no very damning evidence ot undermine the credibility of either one, there is very little basis for a jury to conclude beyond a reasonable doubt that one of them is telling the truth. That in turn requires them to find the accused innocent. That, for many sexual assault activists, is an unacceptable outcome.
The nature of the argument we are having is confirmed by an op-ed and a letter in the New York Times of Monday, September 18. The op-ed by two grad students in
sociology protests possible changes in the Department of Education's
sexual assault policy. The article by Miriam Bleckman-Krut and
Nicole Bedera begins as follows: "Who should have the right to define
rape: survivors who have experienced
sexual violence or those who are accused of perpetrating it?" Later,
they add that "accused men's pain does not excuse rape, and men
shouldn't be the ones defining it." We have never had a criminal justice system, as it happens, in which either the accused or the
accuser gets to decide the case. The question of whether a crime has
been committed has always been the province of third parties, chosen to
be as impartial as possible--that is, judges and juries. A letter to
the editor from an attorney, Marian E. Lindberg, makes the same
argument: "Whether one agrees with a preponderance-of-evidence standard
largely on whether one thinks that women are more likely to lie about
sexual abuse, or men more likely to lie about consent." Our whole legal
system--which, to be sure, has never functioned perfectly--is designed
to substitute the impartial judgment of third parties of the facts of a
particular case for blanket rules such as "believe the woman."
The Obama administration advised campuses not only to ignore presumption of evidence, but also to discard another standard, one of "clear and convincing" evidence that charges were true. Instead they ordered them to make judgments based on the "preponderance of evidence," the standard used in a civil suit. Even that standard, obviously, isn't much help when the evidence consists of opposing statements by an accuser and the accused--unless one decides that in these situations, women are inherently more credible than men. The files Kipnis quotes show that the college bureaucrats charged with investigating these cases and the lawyers whom colleges often hire to investigate them routinely believe the accuser and disbelieve the accused. And they do this, often, because of preconceived notions of how men and women do, and do not act. Here an analogy is in order. Kipnis does refer frequently to witch trials, but she never mentions what is to me a much more apt analogy: the Stalinist justice of the 1930s and 1940s and Mao's justice during the cultural revolution. In those days, any class enemy was automatically guilty of any accusation against him and her, by virtue of who he or she was, regardless of the specifics of what they had done, or not done. Indeed, justice in those regimes wasn't even supposed to be impartial: it was a front in the class struggle. Now unfortunately, for at least three decades, university humanities have been teaching that the history of mankind is the history of the oppression, by white males, of everyone else. Thus, when Cho (whose credibility on many points was shredded by cross-examination) said that she had spent the night with Hartley spooning, while he said that he had put a pillow between them, the administrator simply decided to believe Cho and find him guilty.
It occurred to me, as it didn't to Kipnis, that the practice of hiring attorneys to conduct investigations and report their findings, upon which the university then acts, has another huge problem, which is also related to how our judicial system really works. Attorneys are not trained to investigate situations impartially; they are trained to represent the interests of their clients, and they instinctively slant every fact in favor of their client. In these cases they seem to wind up representing the accuser. I raised this point with a very experienced attorney of my acquaintance. He agreed with me, but he added that there were two kinds of attorneys, mediators and arbitrators, who are accustomed to listening to both sides of the question, and who would do a better job. Mediators and arbitrators, however, use impartial procedures--the only reason anyone would hire them--and colleges and universities, threatened with the loss of federal funds under title IX, aren't interested, clearly, in impartial procedures that respect traditional principles of American justice.
Late in the book, Kipnis makes another critically important point about sexual assault on campus. Many complaints, of course, involve situations in which both parties have consumed large amounts of alcohol. Campus officials now argue routinely that no one can really consent to sex when under teh influence of alcohol (how much alcohol is required to deprive one of that power, I do not know), and therefore, sex with an inebriated woman is rape. Leaving aside the question of whether this really makes any legal sense, what Kipnis argues--and she is clearly right--is that such rules criminalize what has become normal behavior on many campuses. It is very clear that both young men and young women to go parties to get more or less drunk and "hook up." They know they are going to drink, and that they may have sex, when they arrive. But the adults who claim to supervise their lives have declared this behavior to be criminal--but only for the man, in a heterosexual encounter at least. I do not think this is a healthy situation for anyone concerned. For the record, if I had a daughter (which I never have), I would tell her in no uncertain terms never to get drunk with anyone she did not trust.
It is something of a miracle that Kipnis's book was ever written. The sex crimes bureaucracies on campus, she makes clear, also try to impose a high degree of secrecy on their proceedings, try to prevent the accused from keeping thorough records of them (for instance, by recording hearings or bringing attorneys with them), and say very little, normally, about how decisions were reached. Publicity worked for Kipnis. Her acocunt of her own case suggests to me that the Northwestern hierarchy realized that it could do a lot of harm, and she was found innocent of creating a hostile environment rather quickly after she became nationally known. Others, however, might not be so lucky. There is not the slightest doubt that if I were still teaching on campus, this blog post could easily be cited by any member of the university as an actionable attempt to create an unfriendly environment.
I had planned this post for some time, but this morning I was delighted to find that I am not alone. The Boston Globe, whose coverage of campus sexual assault usually reflects the new orthodoxy, included a long story this very morning quoting a large number of liberals, many of them women, who, like me, believe that the Education Department does indeed have to reform its title IX guidelines. I hope that readers here will be able to break through the firewall. It's a good story, and it suggests that, thank heaven, reverence for our legal traditions is, even now, far from dead. We still need a two-party system to remedy the excesses of both sides. This is one case where, even now, this might work.