There’s one question about campus rape that comes up again and again: Why isn’t the crime handled exclusively by law enforcement? In a perfect world, the legal system would effectively arbitrate this crime, but given law enforcement’s dismal record on sex crimes, schools have no choice but to adjudicate campus rapes in order to comply with federal Title IX law.
Law enforcement is not a viable solution to campus rape because police do a terrible job of holding rapists accountable. According to a recent analysis of Department of Justice data, only 3 percent of all rapists—not just campus rapists—will ever spend a day in jail. Only 40 percent of all rapes are reported to police, and of those, only 10 percent will lead to a felony conviction with slightly fewer seeing the inside of a jail cell.
The numbers are no better when it comes to law enforcement’s handling of campus sex crimes. In 2011, the Chicago Tribune published the results of a study involving 171 campus sex complaints at six Midwestern universities. Twelve of the accused perpetrators were arrested, and only four were convicted. The Tribune concludes that such low arrest (7 percent) and conviction (2.3 percent) rates leave “untold numbers of college women feeling betrayed and vulnerable, believing that their allegations are not taken seriously.”
Law enforcement is hampered in prosecuting rape because this crime is rarely witnessed by a third party. Plus, physical evidence may look similar to consensual sex, the standard of reasonable doubt is high (approximately 95 percent certainty) and, in most states, the burden of proof is on the survivor to prove s/he was raped instead of the defendant proving that s/he obtained consent.
Additionally, trauma impairs the prefrontal cortex, which is crucial to decision making and memory, so survivors may come off as less believable to authorities when they report the crime. Survivors often recount their rapes with little emotion and are unable to remember details or give a linear account of events due to impaired brain functioning.
Widely held rape myths work against reporting, arrest, and conviction rates for rape, including the myth that only “stranger rape” and interactions that result in physical damage constitute “real” rape.
Widely held rape myths work against reporting, arrest, and conviction rates for rape, including the myth that only “stranger rape” and interactions that result in physical damage constitute “real” rape.
Furthermore, widely held rape myths work against reporting, arrest, and conviction rates for rape, including the myth that only “stranger rape” and interactions that result in physical damage constitute “real” rape. Prosecutors have broad discretion in whether to prosecute a case or not, and they tend to be more concerned about their win-loss record than pursuing justice in cases that are difficult to win.
One of this article’s authors, Caroline, has worked with more than a dozen campus survivors who have reported rapes to police in recent years. Not a single case resulted in an arrest, and in addition to being a waste of time, the experience often re-traumatized the survivors. A district attorney in California closed USC student Tucker Reed’s case without taking an official statement from her, despite the fact that she had a recorded conversation with her alleged perpetrator apologizing for raping her.
When Morgan Carpenter filed a rape claim in New York, an assistant district attorney told her, “Well, I met him. He’s really cute. Maybe you just had a weak moment and you thought maybe you could get away with it.”
Caroline worked with a survivor who was raped in Michigan in the spring of 2013. She awoke in the middle of a rape in a fraternity house, kicked off her assailant, ran into the street half clothed and called the police. Her rape kit indicated serious physical damage that would not heal for two weeks. The DA refused to press charges, citing a lack of physical evidence.
A recent college graduate in Florida who was raped in the spring of 2014 in her off-campus apartment went straight to the police to report her rape and was told there “was nothing” they could do about it. She then documented the rape through a series of text messages and a recorded conversation in which the alleged perpetrator admitted holding her down, forcing her to have sex, and seeing the “pain on your face.” The DA refused to move the case forward due to a lack of witnesses and physical evidence, and even accused the survivor of “flirting” with the alleged perpetrator by contacting him to obtain his admission of the crime—as she was instructed to do by the police.
After her experience with the police, Columbia University student survivor Emma Sulkowicz said she would discourage other survivors from reporting to law enforcement:
If you want to go to the police, this is what to expect: You’ll be verbally abused. But at least no one will yell at you for not going to the police and getting verbally abused. Just take your pick.
Most schools do a poor job processing sexual assault/rape cases, but the criminal justice system is even worse. In the absence of a viable law enforcement option, schools have to conduct their own investigations and adjudications to be in compliance with federal law. These adjudication processes vary from campus to campus, but they are invariably less formal than a legal investigation.
But schools are uniquely positioned to identify and sanction rapists since the Department of Education has mandated the “preponderance of evidence” standard, the same standard of proof used in civil cases. Some have criticized this standard, but campus rape adjudications are not criminal proceedings, and the stiffest sanction (expulsion) is a rarely used slap on the wrist compared to a felony conviction. Rape on campus is currently treated as harshly as plagiarism. Additionally, perpetrators who are expelled are able to transfer with relative ease, both before and after they are sanctioned, because schools do not report rape as the reason for expulsion on student transcripts. (This is why we need a national database of campus rapists so schools can keep their student body safe by not accepting rapists from other campuses.)
Law enforcement is a terrible option for campus rape survivors because it is ineffective and often re-traumatizing for survivors. But because schools have a national mandate to provide a safe and equitable learning environment, they are in a unique position to best adjudicate campus rapes.
Therefore it is incumbent on them to establish fair, effective, and transparent reporting, investigation, adjudication and sanctioning processes that reflect best practices. It is also incumbent on administrators to work with local law enforcement to improve the way both institutions respond to this heinous crime.
Caroline Heldman and Baillee Brown
Coffee At Midnight
While the criminal justice system needs improvement, and lots of it, doing away with it for campus rape is a huge misstep. Trusting an unqualified panel of feminists to play judge and jury in an alleged sex abuse case – especially one for which there is zero physical evidence – is akin to trusting a lynch mob to decide whether or not an accused murderer warrants the death penalty. By this logic, why have a justice system at all for anything?
If you think you’re creating a “climate of fear” for women by requiring campuses to use the proper system, realize that you are creating an actual climate of fear for men by saying that college men don’t have basic constitutional rights. You have basically made a case for campuses being gender-segregated like in the old days when you do that. Except, with all this rabid push for gay this and that, what’s to stop a lesbian from further injuring the girl she betrays by cooking up allegations? And would that lesbian then be subjected to the same denial of constitutional rights that are now shown to men? Or would her lesbianism be some sort of golden ticket to getting to keep her rights to review charges and evidence and face her accuser? And if so, then what is the point again in denying men that right? And what of gay men in this instance? If a man is betrayed by a male friend, and the betrayer files a false report, does the betrayer’s masculinity render null and void the system?
Congratulations. You now have a system that is unconstitutional. And a “justice” system that is no longer fair, blind, nor impartial. Where in the interests of “equality,” nobody is equal under the law. Where in the interests of “preventing a climate of fear,” certain members of your arbitrary caste system live in constant terror that if they so much as smile the wrong way in the presence of someone of a higher caste, they can have their entire lives torn apart.
If I wanted to live under this kind of madness, I’d move to India. It has no place in America.
The authors’ misgivings about law enforcement and the criminal justice system are understandable; there are examples of various abuses by law enforcement across America. Radley Balko had catalogued a list of abuses in Reason.com.
And yet, this is one area where the government is more competent than private organizations. We do not entrust the death penalty to lynch mobs, after all, despite skepticism of the government. To enturst colleges to investigate sexual assaults (which the text of Title IX does not require) would be like entrusting the President’s security detail to toddlers. The Secret Service is not perfect, but entrusting presidential security to toddlers is worse.
The recent article on campus rape in the LA Progressive by Caroline Heldman and Baillee Brown (“Campus Rape: Why Not Law Enforcement?”) contained numerous misleading if not dangerous statements.
1) The authors write, “Law enforcement is not a viable solution to campus rape because police do a terrible job of holding rapists accountable.” As evidence, they link to a Slate article that cites a New York Times article that says, “[Florida State] University police records show no arrests for forcible sex offenses from 2007 through 2013.” They also complain about “low arrest (7 percent) and conviction (2.3 percent) rates” in another study.
The fact that no arrests were made does not mean police are doing a terrible job, unless one believes there should be a minimum quota for rape arrests.
Moreover, the reason there were no arrests is given: police do not proceed when the accuser tells them not to proceed.
“No” means “no.”
2) The authors write, “[O]nly 3 percent of all rapists…will ever spend a day in jail.” They link to a website that claims that 8% of rapists get prosecuted with only half of those prosecutions leading to a felony conviction.
That means half of those people are not rapists, because they were tried and found innocent, but Heldman and Brown are still calling them rapists.
Moreover, that website claims that 40% of rapes go unreported. The 2013 U.S. Justice Department report, “Female Victims of Sexual Violence, 1994-2010,” says that of the women not reporting their rape, 8% said they did not report it because it was “[n]ot important enough” to report, 7% said they “[d]id not want to get offender in trouble with law,” 13% said it was a “[p]ersonal matter,” and 30% responded, “Other/unknown/not one most important reason.” In other words, Heldman and Brown are acting as if not proceeding with a conviction is itself an egregious crime, when the women themselves would say, “No.”
“No” means “no.”
Then there is the fact that several rape researchers say that a woman has been raped even if she herself does not say so: the Department of Justice report, “The Sexual Victimization of College Women,” says that 48.8% of the women who were raped said that what happened to them was not rape. In other cases, the figure is as high as 75%.
3) The authors cite the Tucker Reed case. It’s rather gross to go through the details, but one has to in order to point out what’s misleading about the Heldman and Brown article. Here is Miss Reed’s own account: “He and I ended up making out on my couch. When he started taking off my clothes, I moved the make-out session to my bedroom in case my roommates came home. http://www.xojane.com/issues/tucker-reed-outs-rapist-at-usc
“Eventually naked, in my bed, my date told me he wanted to have sex. I told him repeatedly that I did not want to.” She has not given consent. “That I wanted it to be special.” She has not given consent. “That I wasn’t ready.” She has not given consent. “That having sex so soon would ruin our relationship.” She has not given consent. “But it happened anyway.” She gave consent!
Not sure about that? She continues: “I told him he was hurting me and I tried to pull away.” First of all, it’s he-said-she-said—sorry if our code of justice is too exacting for Heldman and Brown, but, regardless, its hurting doesn’t mean “stop” and (trying) to pull away doesn’t mean “stop,” as anyone who has engaged in the act would know: it can mean “stop,” but it can also not mean “stop.” If Reed had said, “Stop,” that’s a different story, but she didn’t. I’m using the exact same logic applied to the woman who recorded being chatted up by men in New York, after which many feminists collectively ordered men to only attempt to say, “Hello,” to a woman if she tells them they can: women are adults and can and will make their desires known.
Reed continues, “He pulled me closer. In the end, after he was done, I interpreted it as a ‘misunderstanding’ –– surely he’d just been too drunk to listen.” Ignoring the fact that under California law she’d be the rapist (she gives no indication that she had been drinking, but states clearly that she knew he had been drinking)—and I expect Heldman and Brown to display the exact same outrage they would display if Reed were a frat boy and the man a co-ed—Reed is stating that she did not consider it rape, but later retroactively withdrew consent.
“I had continued to see my rapist. He’d told me he was in love with me and wanted to marry me.”
And when did she withdraw consent? “It took me a year to talk openly about my experience.” A year? OK, fine. So that’s when she went to the police? “I told my best friend.” She went to the police two years later.
She knows English. “No” means “no.” She’s heard that 1,000 times and could have said it a thousand-and-first time herself.
We all get it. One can create a scenario that we all would agree was rape where the woman does not say, “Stop,” as in this case. But for Heldman and Brown to claim that this is such a clear-cut case of rape (or such a case at all) is appalling and I hope someday soon we will see successful defamation lawsuits.
Here are some real statistics on rape in America.
“Do the math: rape stats don’t add up”
By Susan Patton and Jonathan David Farley
The Baltimore Sun newspaper (September 26, 2014)
http://www.baltimoresun.com/news/opinion/oped/bs-ed-rape-statistics-20140928,0,7060764.story