American liberals think of themselves as champions of the excluded and ill-treated, friends of the little guy persecuted by the system. Their instinctive sympathy for the disadvantaged and overlooked is evidence of a charitable worldview and a peculiar inheritance of Christian humanism. For a variety of reasons, however, many liberals find it difficult to acknowledge certain kinds of victimhood, even though the victims are victims in the truest sense: wronged by lawless courts and subjected to perverted justice.
We’re referring in this instance to university policies that assume the guilt of anyone—generally any man—accused of rape. In recent years many institutions of higher learning have begun handling rape allegations themselves rather than allowing law enforcement to investigate them. This has resulted in tribunals in which the accused does not get to face his accuser and in which the judicial process is predisposed to arrive at a verdict of guilty.
These campus kangaroo courts did not originate in the Obama years, but his administration abetted and all but required their expansion. In 2011, the Department of Education issued a “Dear Colleague” letter urging schools to address the problem of “sexual violence” on campus more directly. The letter did this by explaining that Title IX, the 1972 law barring discrimination on the basis of sex in publicly funded schools, applies to “sexual violence” of all kinds—“rape, sexual assault, sexual battery, and sexual coercion.” How, one wondered, is “rape” different from “sexual coercion”? And might not any sexual encounter be susceptible to description as somehow “coercive”?
In assessing and deciding cases of sexual violence, the letter said, moreover, schools should no longer use the criminal code’s more stringent criterion “beyond a reasonable doubt”; henceforth it would be sufficient to convict the accused based on a “preponderance of the evidence.” Probably guilty would now mean guilty.
The administration’s unspoken message: If schools receiving federal funds wish to keep receiving those federal funds, they’d better stop letting cops handle rape cases and start doing something about the rape epidemic on their campuses.
Even if this “epidemic” is real, universities aren’t justified in denying due process to those accused of a crime. And yet this is what they’ve done, and often to innocent people. The stories of students being expelled from colleges on the mere word of their accusers are shocking and heartbreaking; the marks against them are permanent records, unexpunged and in many cases inexpungible.
But the epidemic isn’t real. For a decade, feminists and victims’ rights advocates have claimed “one in five” college women are subjected to sexual assault. The statistic is based on a 2007 study, but its authors insist that their work doesn’t purport to prove a national average. They readily concede that there is evidence the actual rate may be far lower. For the feminists and anti-rape campaigners, however, that doesn’t signify. For 10 years they’ve been repeating the one-in-five stat and will presumably do so forever.
All of this led Betsy DeVos, President Trump’s secretary of education, to declare her agency’s intention to reconsider the Obama-era Title IX guidelines. On September 7, in a speech at George Mason University, she announced a policy change everyone knew was coming. “The failed system imposed policy by political letter,” she said, “without even the most basic safeguards to test new ideas with those who know this issue all too well. Rather than inviting everyone to the table, the department insisted it knew better than those who walk side-by-side with students every day. That will no longer be the case.” In an interview later that day, DeVos confirmed that her department would “revoke or rescind” the guidelines.
Anti-rape campaigners were swift and predictable in their responses, making ever more preposterous claims and sounding for all the world as though sexual assault had been completely legal until Barack Obama outlawed it in 2011. The feminist writer Jessica Valenti, for instance, dismissed as petty and irrelevant the complaint that the campus rape tribunals deny the accused due process. “There is no scourge of innocent young men being unfairly targeted,” she wrote. “Only 2 to 10 percent of rape accusations are shown to be false, and rapists themselves are rarely punished: Only 0.6 percent ever spend a day in jail, less than a quarter of college rapists are expelled, and less than half are suspended.”
The argument is mind-bogglingly stupid—on the order of saying only a small fraction of accused criminals didn’t commit the crime of which they were accused, so why give anyone a fair trial? The more serious problem with her argument, though, is that it’s based on unknowable data. Studies purporting to quantify true versus false rape allegations rely heavily on official conclusions reached by law enforcement. But the police generally only render such a decision if the accuser confesses to lying or if some evidence arises that disproves the crime: pretty rare outcomes. The real number of false rape accusations—even assuming there is a clear line of distinction between what’s rape and what’s not—is almost certainly much higher than any empirical study can reveal.
And that brings us back to the underlying problem of rape on campus, and by extension rape more generally when the accused and the accuser are known to each other. It is a crime difficult to prove, involving as it often does the private interface of two people and the inarticulate exchange of signals that may be misinterpreted or ignored. Over many years, law enforcement has become more adept at finding the truth and securing just convictions. University administrators are wholly incapable of performing this task.
That the Obama administration in essence pressured schools to assume this role is a piece of folly of which the 44th president and his education advisers ought to be ashamed. The universities themselves, however, bear most of the blame: No one forced them to become so utterly reliant on federal largesse that they would abandon basic constitutional principles at the mere threat of a federal bureaucrat.
This episode in our history—a sadly memorable instance of well-meaning liberals searching so zealously for victims to defend that they created new ones in the process—will now, we hope, draw to a close.
