Rape

As the Campus Rape Narrative Unravels, Will Due Process Strike Back in 2015?

Why 2015 could be another rough year for students' rights.

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Consent
Consent 2004 / Vimeo

It was undoubtedly a year of heightened paranoia about rape on college campuses, with everyone from Lena Dunham to President Obama demanding immediate action to curtail a purported epidemic of sexual violence. But due to a string of embarrassments, 2014 ended on surprisingly sour note for illiberal activists conspiring to shunt aside due process in their zeal to eradicate an exaggerated and politicized problem.

Still, while the voices of reason—of fairness for accusers and the accused—scored some ideological victories this year, 2015 will likely present even more daunting challenges. Dark clouds loom on the horizon, according to several legal experts who are advocates for campus due process or involved in rape disputes. In particular, a wave of wrongheaded affirmative consent policies—which force students to adopt bizarre and limiting sexual consent customs—could sweep the nation.

"I would guess that affirmative-consent ordinances will become law in various municipalities governed by Democratic machines, like Chicago (as well as New York City)," wrote Hans Bader, a senior attorney at the Competitive Enterprise Institute and former Office for Civil Rights lawyer, in an email to Reason. "'Affirmative consent' is like quasi-religious catechism for the Democrats."

In 2014, government policymakers seized upon a controversial statistic—that one-in-five women will become victims of sexual assault or attempted sexual assault while at college—like never before. Long had that number been part of certain feminist activists' mantras, but last January, President Obama cited it in a memorandum establishing a task force to combat the campus rape crisis. Other areas of government used the statistic to justify firmer measures. The Department of Education continued to punish colleges for failing to tip the scales in favor of the accusers during rape trials. And the state of California, decided—incorrectly—that misunderstandings surrounding the decision to have sex were the main problem, which prompted the legislature to codify affirmative consent and compel colleges to enforce it.

Affirmative consent is a baffling way to fight sexual assault. Rape is a crime committed by a minority of determined, serial perpetrators; it's unclear why activists think that forcing students to jump through new hoops before they have sex will deter these monsters. The policy will produce more mutual confusion and false accusations, however.

But sadly, the compelling arguments against affirmative consent haven't dissuaded college administrators from codifying it, according to Gina Lauterio, program director at Stop Abusive and Violent Environments, an advocacy organization for victims of sexual assault and false allegations.

"By now you've probably heard many reasonable arguments against both affirmative consent and increased federal regulation in campus sexual assault, and they were probably convincing," Lauterio told Reason. "That's irrelevant. There were severe logical loopholes in [California's affirmative consent bill] and it still passed, and elsewhere affirmative consent is being passed by executive order, therefore making a body of reasonable minds unnecessary."

Activists' reliance on the misleading 1-in-5 statistic might, at least, subside in 2015. New data from the federal government's Bureau of Justice statistics indicated that students were actually less likely to be victimized than non-students, and suffered rape rates that were nowhere near 1-in-5. Politico noted that the statistic was "increasingly disputed," and Sen. Kirsten Gillibrand (D-New York), a firm believer in tougher anti-rape policies, quietly scrubbed any mention of the stat from her website.

The collapse of Rolling Stone's report on a gang rape at the University of Virginia (UVA) was perhaps an even more dramatic setback for activists. Shortly after the incredible story broke, UVA President Teresa Sullivan suspended all campus fraternities, and people predisposed to believe that campuses are veritable rape factories took up their pitchforks. But the story's thorough debunking left them with egg on their faces. As Reason contributor Cathy Young noted, the crusade against rape culture undeniably "stumbled" in 2014.

Unfortunately, none of these small wins for sanity about the scope of violence on college campuses mean that due process is destined to make a comeback in 2015. Lawyers Matt Kaiser, an adjunct professor of law at Georgetown University, and Justin Dillon, a former Assistant U.S. Attorney, represent dozens of students accused of sexual assault through their firm Kaiser, Legrand & Dillon PLLC. They have seen firsthand just how shoddy the farcical campus adjudication processes are: Accused students are frequently denied basic due process and placed at the mercy of administrators and faculty members with no understanding of how a fair trial should work. They see little reason to be optimistic that the problem is going away.

"The Department of Education has made clear that it doesn't really care about due process, which means colleges won't either—until they start having to pay out large damage awards to wrongly convicted students," Dillon told Reason. "The more that happens, the more likely you are to see the pendulum start swinging back to a sensible middle."

Dillon and Kaiser agreed that while some colleges were doing a better job of establishing fair procedures than others, the tide isn't exactly turning yet.

"So far, the UVA story crumbling and the debunking of the 1-in-5 statistic don't seem to have changed the way these cases are handled," said Kaiser. "Hopefully there will be more media scrutiny and that will start to affect how these cases are resolved on campus."

Advocates for due process haven't won the policy battle—let alone the war—yet, which means 2015 could be another rough year for students' rights. But it's impossible to deny that the chorus of voices demanding an end to kangaroo courts grew louder this year, with Harvard's law faculty, Slate magazine, conservative organizations, and libertarians all decrying the travesties of campus injustice.

"At the beginning of 2014, only a tiny handful of commentators and scholars were skeptical of the idea that American universities are plagued by a culture of rampant sexual violence," Caroline Kitchens, senior research associate at the American Enterprise Institute, told Reason. "Over the past year, the national discussion on campus rape has evolved dramatically, and I see a glimmer of a growing consensus that we need to focus on empowering the criminal justice system to handle cases of campus rape rather than university courts."

Still, Kaiser and Dillon don't think they will need to quit their jobs anytime soon.

"Affirmative consent laws will, unfortunately for the students subjected to them, be a full-employment act for lawyers who do this work," wrote Dillon. "California's law, for example, is terribly worded and contrary to everything we know about how sex between human persons actually works."

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61 responses to “As the Campus Rape Narrative Unravels, Will Due Process Strike Back in 2015?

  1. “‘Affirmative consent’ is like quasi-religious catechism for the Democrats.”

    Victimhood gets butts to the voting booth.

    1. I didn’t give affirmative consent to this government raping my rights.

      1. Social Contract.

        *drops microphone*

        1. /picks up microphone

          /drops microphone

          /stomps on microphone

  2. Rape is a crime committed by…minority…perpetrators…

    There’s a quote for you, Anna. Go get ’em!

    1. Yeah but it is likely wrong.

      The study that this statement was based on was highly flawed.

      Yes a large portion of rapes are committed by such individuals but the reality is that the majority of rapes will be committed by drunk or just clueless guys who have no idea that they are committing a rape and this is even more true if you look at all the the cases where a woman honestly thinks she has been raped (whether or not what happened actually qualifies as rape) and not just the cases where it can be proven a rape occurred.

      1. Sarc should be funnier.

      2. Seriously, the affirmative consent thing is indeed an attempt to shield college women, not from serial sexual predators, but from the consequences of collapsing comatose into the beds of college men just enough less drunk to be capable of penetration — i.e., sexual indigestion — while also shielding them from any politically incorrect suggestion that they shouldn’t get completely plastered any time, any place, like guys. It reflects the sheer cowardice of college administrators in the face of telling the kids they are overcharging by the hundreds of thousands that sooner or later they will have to act like adults, and deserves nothing but scorn.

  3. while the voices of reason

    Drink?

    1. I thought you’d never ask.

  4. Why not have complete gender separation on college campuses?

    1. HEY hold on there. Don’t be elbowing the racialists out for the new college plans.

    2. That would work if the goal of the feminists were to prohibit sex; I get the impression their actual goal is to encourage it so they can kick more men out of college and put more men in prison.

      That way women have less male competition in class and in the workplace. Hooray for ‘equality’!

      1. I think it’s more to give more women absolute power over men with no responsibility. Their ultimate goal is a world where no man dares contradict a woman without checking with feminism to check if she’s a female MRA.

        1. No it is to train a majority of people to feel guilty, much like the white privilege meme. It is easier to punish, demand obedience from, and enslave people convinced they deserve it.

  5. “…contrary to everything we know about how sex between human persons actually works.”

    This is true of just about everything that progressives try to accomplish. They are convinced that they can model every aspect of human behavior from their own vision of first principles, and make it all come out right.

    1. See, also “New Soviet Man.”

      1. See also: “Eugenics”.

  6. Nice victory lap player.

  7. I see a glimmer of a growing consensus that we need to focus on empowering the criminal justice system to handle cases of campus rape

    Sorry, but I fail to see how the criminal justice system isn’t already fully “empowered” to handle rape, wherever it occurs.

    The focus needs to be on treating students like adults Period. No more “in loco parentis” for colleges and universities. No more “we’ll handle crimes on our campus ourselves, fuck you very much.”

    At most, colleges need to have a policy on how students who are arrested or indicted (not merely accused) of crimes will be handled. Suspended? Evicted? What?

    They can also have codes of conduct for non-criminal “offenses”. Whatev. But for actual crimes, no – those should go straight to our highly efficient official kangaroo courts for plea bargain. Just like anyone accused of a crime.

    1. “Sorry, but I fail to see how the criminal justice system isn’t already fully “empowered” to handle rape, wherever it occurs.”

      Well between this article and the Lena Dunham one the real problem seems to be knowing when rape has occurred. Seems to be if you go to a party where there is a bunch of drunk people fucking, as long as you feel shitty about it the next day rape happened.

  8. No more “we’ll handle crimes on our campus ourselves, fuck you very much.”

    Why not, RC? It worked so well for the Caholic Church all those years

    1. the Caholic Church

      I doubt this outfit uses grape juice for Communion.

  9. There’s a general rule that questions asked in headlines can be answered “No”.

    Due process may nudge back in this particular area but SCOTUS is trying its best to make due process as irrelevant as the quaint notion of the rule of law. Their ‘due process’ allows for asset forfeiture and Kelo and Chevron deference and ‘ignorance of the law is a reasonable excuse as long as you’re a cop’ among other things and that’s pretty pathetic.

  10. I hope some man has the guts to step forward and accuse a woman of sexual assault under “affimative consent” because she performed some act on him without his consent. The rules (at least the ones I read in California) don’t state it has to be a man assualting a woman and the first time a woman is on the hotseat for what used to be normal sexual activity, someone is going to realize how assinine the law is.

    1. I hope some man has the guts to step forward and accuse a woman of sexual assault under “affimative consent” because she performed some act on him without his consent.

      So long as this was a test case, that the fempetrator agrees to in advance, I think this is an excellent idea.

      To use these foul rules against anyone, male or female, who doesn’t commit real rape is just wrong, even to make a point, unless all parties are in on the joke.

      1. To use these foul rules against anyone, male or female, who doesn’t commit real rape is just wrong, even to make a point, unless all parties are in on the joke.

        I’m not 100% sure I agree. What about the campus SJW brigades? After all, weren’t they the ones who demanded these rules? Should they be able to institute rules like this and not have to face the consequences? Strictly, it strikes me that a genuine concept of justice would demand they be held to the standards they advocate.

    2. Enterprising libertarian students could mock and clog the system by charging each other. Girl on girl, boy on boy, boy on girl, girl on boy, doesn’t matter.

    3. Transcript from the trial:
      Victim’s testimony: “….. and then she took my hand and led me into the bedroom”
      Lawyer: “did she initiate the contact”
      Victim: “yes, she practically dragged me in there.”
      Lawyer: “Go on. Just tell us in your own words what happened”
      Victim: “Well, I turned around to face her and object, but she didn’t give me a chance. She walked right up to me which forced me to back up until my legs hit the edge of the bed.
      “She placed her hands on my shoulders and pressed until I fell backward onto the bed. She had a wicked smile on her face. I scrambled to get away, but to my horror I discovered I had merely positioned myself in the center of her love platform.
      “She climbed on top of me. I thought about fighting back, but my Mother and 8 sisters and slightly effeminate father had always taught me it is wrong to strike a woman. She quickly tore of my swimming trunks and straddled me as she did a slow strip-tease… (weeps)”
      Lawyer: “I know this is difficult but please try to go on”
      Judge: “Yes, please try to continue your story.”
      Gallery: (murmurs of encouragement)

      1. Victim: “So then she was completely naked on top of me and to be honest, I was shocked at how large her breasts were, especially her nipples and areolas. She leaned over me and swung her breasts back and forth over my face, gently brushing my lips with her nipples. I opened my mouth to protest, but of course, that just got me a mouthful of titty. She groaned in pleasure and a chill ran through me in anticipation what she might do next.
        “She then smashed my face into the cleavage between her breasts. I turned my head left and right to get away, but it was just more titty everywhere I turned. I screamed out? but all it produced was motorboat sounds.

        1. “Next thing I knew, she was stroking my body: My stomach, legs, inner thighs. That area that taint quite ass but taint quite balls. I wish there was a name for that?. Anyway, against my will my penis was fully engorged. I’m ashamed to say it has never been so big and hard as on this day. She made some crude remark about it as she tickled my balls. She stroked my Poor Pulsating Purple Penis and suddenly I knew what she was after: My precious bodily fluids. Suddenly Doctor Strangelove didn’t seem like such a farce.
          “She raised up over me and lowered herself onto my pole, literally suffocating my family jewel. It was so hot?. So wet?. It seemed like every nerve ending in my body was focused on the shaft and head of my cock?.”
          Judge: “Ahem? ahhh, we’ll take a 30-minute break here. I have some importance business to take care of. Judy, you look a bit flushed. Are you feeling okay? Would you be able to accompany me to my office?”
          Stenographer: “Oh, yes your honor. I’m fine, just a little warm.”
          Bailiff: “all rise for the judge!”
          Judge: “Ahhh, that’s fine, let the others stand and go first (adjusts robes). I’m not quite ready yet.”
          (everyone else rushes for the doors)??

          1. Thank you for making me laugh out loud. You’re hilarious.

            1. That transcript is the true account of the most traumatic day of my life. Following that event, I was so emotionally and physically drained, I immediately fell asleep and awoke 12 hours later, dehydrated and hungry.

              My attacker was gone, never to be seen again.

              Further, I experienced Stockholm syndrome and even to this day, I frequently check my phone to she if she called.

              1. *see if she called

          2. don’t stop 😉

  11. Still, while the voices of reason?of fairness for accusers and the accused?scored some ideological victories this year

    Well, I guess if you consider that many of the accused didn’t even exist, sure, I guess they scored victories.

    1. Justice for the Figments!

  12. There were much more egregious infringements on our due process rights in 2014 than the politicized debate over our “rape culture”.

    1. Would you prefer we wait until affirmative consent laws and preponderance of evidence standards are being applied in regular courts and every woman you sleep with (or you can’t prove you didn’t sleep with) effectively has your nuts in a vice, to start caring?

    2. Really? There were other areas where due process for defendants was all but destroyed?

      Where, pray tell.

  13. Re: “According to the text of SB 967, the student initiating sexual contact must establish “affirmative consent”

    Since most women even today still expect men to do the initiating, the deck is stacked against male students.

    See “The Sexual Harassment Quagmire: How To Dig Out” http://malemattersusa.wordpres…..-quagmire/

    It’s a detailed look at what I think is the sexes’ most alienating and destructive behavioral difference, which is responsible for much of what is called sexual assault of women.

    1. “Re: “According to the text of SB 967, the student initiating sexual contact must establish “affirmative consent” ”

      One more ludicrous aspect of the law, although I don’t doubt it was written this way intentionally so as to place the burden throughout squarely on men.

      The man initiates, the woman takes over (not at all a rare occurrence), yet the man must establish “affirmative consent” throughout?

      It never ends.

  14. On another thread, I posted some discussion of rape under the common law by the 18th century jurist William Blackstone.

    Decide for yourself whether you would rather be governed by *Black*stone’s rules or by *Rolling* Stone’s rules when it comes to rape accusations –

    https://reason.com/blog/2014/12…..nt_4992147

  15. Hittem up JD Hittem up good.

    http://www.Way-Anon.tk

  16. A huge part of this problem stems from the simple fact that academics are, as a class, unsuited to making subtle decisions outside of their area of expertise. They are very seldom generalists, and often are startlingly ignorant of anything outside the narrow convinces of their discipline, their department, or their campus. Combine this with the absolute certainty that, since they are College Professors, they are smarter and better educated than anyone else, and you have a recipe that is going continue to make really lousy stew for decades if not centuries to come. Terry Pratchett’s fictional staff of Unseen University are better suited to dealing with real world problems and at least one of them spends his entire life standout of his mind on dried frog pills.

  17. Back in early September I wrote about how loopholes in “Affirmative Consent” Laws create dangers for sexually active feminist students.

    http://www.avoiceformen.com/me…..alifornia/

    1. This implies that the law is gender neutral and would be enforced against women, which of course isn’t true.

      Mandatory arrest policies in cases of domestic violence were pushed by feminists in California who believed only men were abusive and would get more male abusers arrested. While arrests of men did increase by 30%, it was arrests of abusive women that increased by over 400%. What did feminists do then? They lobbied to have the law changed so that it targeted men specifically (but indirectly, by targeting the taller, larger, partner, or just the one who seems more victimy; in other words, the man); as a result, arrests of women declined back to a small minority of DV arrests.

      This is how they operate. This law was designed to punish men; if it should ever accidentally end up being used to punish both genders, I guarantee you, sure as I was born, the feminist lobbyists and politicians will step in and “fix” it.

      1. edit line 9: seems less ‘victimy’

  18. It’s about time the rape narrative spirals through the roof. You know the National Organization of Women has been working a long time for sole access to the nation’s pool of available women. But, don’t fret, boys, get desperate enough and there’s always still Washington state and it’s many legal farm animal bordellos.

  19. “Affirmative consent is a baffling way to fight sexual assault. Rape is a crime committed by a minority of determined, serial perpetrators; it’s unclear why activists think that forcing students to jump through new hoops before they have sex will deter these monsters.”

    Of course, “affirmative consent” has very little to do with fighting sexual assault. Instead it is about feminism attempting to gain control of consensual sexual relations. The radical feminist habit since the 1970s has been to refer to all “PIV” sex as rape. Affirmative consent laws effectively criminalize nearly all consensual sex to date, and nearly all consensual sex going forward that is not modified to suit feminism’s redefinition of consensual sex, as rape.

    Even if affirmative consent laws do not spread beyond campuses, given feminism’s stranglehold on academic discourse it is likely it will take a generation to be rid of those laws and their pernicious effects.

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  21. For an in-depth expose of the evolution of universities from institutions of higher learning into witch-hunt tribunals for the “rape culture” advocates, see: New Puritanism ? New Paternalism: The “Rape Culture” Narrative Demeans Women, Demonizes Men, and Turns Universities into Witch Hunt Tribunals

  22. While we are at it can we have an honest conversation about women as “victims”

    I am sorry, but if you really want society to take your rape claims seriously we need to just end this bullshit “I was too traumatized to press charges” bullshit.

    People who are victims of assault are traumatized and no one coddles them and just takes their word for it when they come forward years later with no physical evidence.

    Yes, I admit we need some changes on the part of the police in the way they handle rape cases and treat victims/accusers but I am sorry, not going to the hospital and getting a rape kit done as soon as possible has to be taken as very strong evidence that what happened was not rape. Not proof but it needs to be very difficult to prove a rape charge when the accuser waits weeks to months to years to report it.

    Also, I think any rape victim who finds that there were earlier victims of the same rapist who failed to report the rape to authorities can sue them as accessories and in some extreme cases they might even be able to be charged as accessories for not reporting having been raped.

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  24. Yet another nail in the coffin of brick & mortar “higher education” businesses? Those dinosaurs are already on their way out, as the costs so far outweigh the benefits make other forms of advanced training much more logical for most people.

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  26. The problem is you are looking at it from the viewpoint of a reasonable person, while they are looking at it from the viewpoint of a feminist. It is a common theme in feminism that all male-female sex is rape due to the inherent patriarchal power differential. While their preference would be to stop all male-female sex, they know they can’t, so positive consent laws is the best way to place all sexual power and control prior to, during, and post coitus in the hands of the woman forced, by societal standards and traditional sex roles, into having male-female sex(rape).

  27. It is too bad, but sovereign immunity will bar the Feds from feeling the sting of civil suits resulting from lack of due process.

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