The Trump Education Department’s plan to change the Obama administration’s policy on campus rape accusations—a policy that has helped expel countless students who were innocent of any sex crime—set off a frenzied attack by interest groups. In joining this attack, major media outlets have continued a pattern of misrepresenting statistics to justify presuming guilt.
The Washington Post led the way by implying that more than 90 percent of students accused of sexual assault are guilty, and that procedural fairness in campus disciplinary proceedings is therefore unimportant—or even harmful to victims.
A July 14 Post editorial proclaimed that “the prevalence of false accusations has been estimated at between 2 and 10 percent.” A chorus of other publications and groups has made similar claims: “National research indicates no more than 8 percent of rape accusations are false,” wrote Jeremy Bauer-Wolf of Inside Higher Ed. “[A] meta-analysis has shown false reports are extremely rare, constituting only 2-8% of complaints,” declared more than 50 advocacy groups led by the National Women’s Law Center.
So deeply has the almost-all-accused-are-guilty myth become entrenched in the conventional wisdom that even National Review Online published an otherwise astute article by Tiana Lowe, who wrote, “Statistically speaking, false sexual-assault accusations constitute a minority of all claims, maybe 10 percent at most, but likely closer to 5 percent.”
These assertions are unsupported by serious evidence, as the imprecision in the purported upper limit of false reports in the items above indicates. More important, they reveal nothing about the percentage of campus allegations that are true or likely true.
It’s fair for critics of the president to point out his own ugly history of boasting about grabbing women by the genitals and the claims of at least a dozen women that he sexually assaulted or harassed them.
But it’s an abuse of journalistic power to use misleading statistics to dismiss well-founded criticisms by Education secretary Betsy DeVos of the guilt-presuming Obama policy. DeVos’s criticisms are similar to those voiced for years by dozens of prominent liberal law professors from Harvard, Penn, and elsewhere, leading advocates of campus civil liberties, families of railroaded innocent students, respected journalists, and others.
Even if more than 90 percent of accused students—most of whom were never reported to police—were guilty of sex crimes, it would not justify presuming guilt in individual cases. “Fairness is important regardless of the truth or the falsehood of allegations,” in the words of Harvard law professor Jeannie Suk Gersen.
More to the point, people who may be tempted to embrace the de facto presumption of guilt decreed by the Obama administration should know that studies do not show the vast majority of accused students are guilty—that’s a myth.
First, as even Michelle Anderson, one of the most prominent academic defenders of the Obama-era campus sexual assault policies, admitted in 2004, “there is no good empirical data on false rape complaints either historically or currently. . . . As a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown.”
The reason is that research on false rape report rates, which involves scholars or activists reviewing files prepared by others, is so subjective as to be of very limited reliability—even in cases that proceed through the criminal justice system, much less the due-process-diminished campus tribunals. The best-known recent studies on false rape report rates, in 2007 and 2010, seemed designed to dramatically understate the number of accused parties who actually were not guilty. Both studies, in which victims’ advocates played major roles, found that the majority of cases were neither true nor false, but instead were incidents in which the accusers abandoned the complaint, or the police dropped them as unsubstantiated, or the evidence was inconclusive.
Both studies also listed as “not false” cases in which an accused student would clearly have been found not guilty of sexual assault even by a campus tribunal. The 2007 study put false reports in a different category from “baseless” claims that did “not meet the elements of the offense.” Its 2010 counterpart, in which the lead researcher used only victims’ advocates to review the case files, similarly counted as “not false” cases in which the accuser alleged something that “did not meet the legal elements of the crime of sexual assault.”
Here’s how the two studies look in visual form. (The second chart has only three data points because the researcher, without explanation, chose not to separate out how many cases did not meet the definition of sexual assault.)
The lead researcher of the 2010 study, University of Massachusetts Boston professor David Lisak, put his own bias on display when he asserted that he wouldn’t describe the 2006 rape claims against Duke lacrosse players as false. This opinion contradicted the conclusions of all serious students of the Duke lacrosse case, led by the North Carolina attorney general, who used DNA, electronic evidence, and a minute-by-minute reconstruction to prove in 2007 that accuser Crystal Mangum’s claims were fabrications.
Moreover, most false rape rate studies analyze complaints to police by nonstudents, not complaints to colleges by students. The distinction is important for at least two reasons. First, deterrence against false campus claims is all but nonexistent, since in the current climate it would be professionally suicidal for an administrator to charge a student with such an offense. Second, college women are often encouraged by campus bureaucrats and by activists to file complaints about legal sexual behavior, such as sex while drinking, that schools increasingly have chosen to classify as “sexual misconduct” by the males. Additionally, none of the studies cited by the media defenders of the Obama policies analyzes cases adjudicated through campus tribunals after the Obama administration unilaterally reinterpreted Title IX in 2011, dramatically ramping up the chances of wrongful findings of guilt.
No wonder such studies have been convincingly and repeatedly discredited as misleading by critics (including us) in articles and books that activist groups and much of the media have ignored. No serious analyst of the data could assert (and even the study authors themselves avoided explicitly asserting) that all or even most of claims in these inconclusive or baseless cases were true simply because not conclusively proven to be lies. Yet that’s precisely what countless journalists and activists have asserted.
The one mainstream publication willing to follow the evidence was the New York Times, which previously had a very poor record in covering issues related to campus sexual assault. After it published an article on July 13 asserting that “national studies show that only a small percentage—between 2 and 8 percent—of students are wrongfully accused of sexual assault,” several critics pointed out the dubious nature of the claim. The Times within days removed the sentence. It also, correctly, added a note stating that “an earlier version of this article erroneously included a reference to studies of false reporting of sexual assaults. The studies examined false reports of sexual assault to the police; they did not examine false reports by college students to campus authorities.”
KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books).
