Each academic year, activists and politicians sound the alarm that the nation’s college campuses are overrun by an epidemic of sexual violence. Presidential candidate and former Vice President Joe Biden, for example, has warned the nation that “one in five of every one of those young women who is dropped off for that first day of school, before they finish school, will be assaulted in her college years.” The numbers are swelling even larger in other surveys, to one in four or even one in three.
Interestingly, despite this so-called epidemic of sexual violence, colleges never made the decision to close. Instead they staffed up student conduct offices and dismantled due process protections for students accused of sexual misconduct in an effort to persuade alleged victims to come forward.
Now that COVID-19 has hit, we’ve seen how schools respond to a true epidemic. As more people got sick and even died from the coronavirus, colleges across the country closed, mostly voluntarily, in advance of state-ordered shutdowns—even though college-age adults are at much lower risk of death than older adults. Numerous colleges, including the entire California State University system, have already announced that they will not reopen for in-person instruction this fall.
This dramatic, rapid response suggests colleges would react very differently if they actually believed that 20 to 33 percent of their female students would fall victim to violent crime during their time in college.
Those one-in-five numbers come from surveys that define sexual assault differently from both the law and common understandings of what sexual assault entails. One survey asked participants if they’d ever had sex while drunk, or if someone had ever “pressured” them into sex by “threatening to end your relationship” or “showing they were unhappy.” In another survey, participants who answered yes to questions about unwanted conduct were recorded as victims, despite the fact that half of those alleged victims, when asked, did not consider the incidents “serious enough” to report.
Activists who are worried about the prevalence of assault have led opposition to the Department of Education’s new regulations governing the disciplinary process for students accused of sexual misconduct. These new regulations include such staples of Anglo-American justice as the presumption of innocence, the right to know the charges and see the evidence, and the right to cross-examine witnesses, including one’s accuser.
The statistical exaggeration of the activists is in full view in the first complaint filed by the ACLU to stop the new regulations. Either because the lawyers cannot do basic math or because they all truly believe their own numbers, they put the rate of sexual assault on campus at 240 percent, arguing both that 12 percent of college students report being sexually assaulted but that this represents only a mere 5 percent of the actual assaults, because 95 percent are never reported.
Epidemics obviously call for extreme measures, the logic goes, and canceling due process rights is a sacrosanct cure. If colleges allowed alleged perpetrators to confront their accuser, opponents warn, few victims would ever come forward because they might be retraumatized.
But the sexual assault epidemic shouldn’t really be called an epidemic. Rather, it’s the result of changing norms around sexual behavior—norms colleges push students to adopt by redefining a great deal of wholly lawful behavior as sexual violence. Within constitutional limits, colleges have the right to adopt new campus rules. For the sake of everyone involved, though, they must drop the pretense that the majority of the cases they deal with involve criminal sexual behavior.
This pretense they’ve adopted trivializes actual sexual violence. No one is naive enough to believe true sexual violence never takes place on campus. Those crimes must be dealt with. But if those crimes affected one in five women on campus, no doubt colleges would respond by taking aggressive, drastic measures to crack down on the scourge, in the same way they’ve responded to the threat posed by the coronavirus. The absence of such a response illustrates that, despite the terrifying numbers routinely thrown around by opponents of due process on campus, colleges do not actually believe—and have never actually believed—that one-quarter to one-third of their female student body will be the victim of a violent crime.
Meanwhile, punishing infractions against the changing norms permanently stigmatizes students who, while they may have transgressed campus codes, never committed anything close to crimes of sexual violence. Under many of the new college consent rules, even the whiny entreaties of a would-be lover are considered so coercive as to negate the other person’s ability to say no. Northwestern University, for example, expelled a student for “sexual assault” because he used “’emotional and verbal coercion,’ apparently because [he] requested sex more than once that evening.” On a similar note, a Title IX training slide at Boston University cites merely “poor communication” between college students as an example of something that can render sex nonconsensual.
College consent rules that operate like this do not jibe with what the average American understands when he or she hears that someone committed—or was victimized by—”sexual violence.” As a result, branding students as campus sex offenders, as if this were truly “sexual violence,” amounts to a death knell for future educational and career prospects, even when the underlying conduct is not remotely criminal.
Occidental College, for example, expelled a student for having sex with a woman who was supposedly too drunk to consent, despite the fact that she texted him before the encounter to ask, “do you have a condom,” and texted another friend, “I’m going to have sex now.”
Brandeis University threw a student off campus and permanently branded him student as a sexual offender after his ex-boyfriend complained, among other things, that he occasionally woke him up “by kissing him” and “looked at his private areas when they were showering together.” Brandeis’ special examiner determined that the complaining student “was not strong-willed or forceful enough” to stand up to these supposed onslaughts and condemned the ex-boyfriend for “serious sexual transgressions.”
Meanwhile, the new campus sex rules give college students the message that they cannot be expected to rebuff cajoling or pressure, or to take proper responsibility for choices made under the influence of alcohol. The inflated statistics also make many of them fearful that sexual violence is much more common than it is.
If colleges want to redefine consent and prohibit large swaths of lawful sexual interactions under their conduct codes, they largely have the right to do so. But now that colleges have responded to a real infectious disease epidemic by fully closing campuses for months on end—though it means losing out on money and instruction time—the scare tactics about the sexual violence epidemic have been exposed for the exaggerations they are. This presents an opportunity to reemphasize the case for due process protections for students who are accused of sexual assault, starting with the Department of Education’s helpful new rules.
It could also present an opportunity for colleges to start being honest about what they are really doing: attempting to redefine sexual norms, not combating an epidemic of violent crime.