Tag: Sexual violence

Rolling Stone Learned Nothing

So the Columbia Journalism review released their report on Rolling Stone’s sensational and false story of a gang rape at UVa. It’s very damning, showing that RS basically ignored red flags and any journalistic standards to get the story. They’re not going to fire anyone over it. But they insist that they feel really really bad for having slagged the reputation of a few dozen men, a fraternity and an entire university (one I am an alumnus of and retain an affection for).

So … yeah. No responsibility at all.

There are numerous good takes on this story, including Megan McArdle, Doug Mataconis and Conor Friedersdorf. But I want to spin out one little thread.

In politics, I often harp on about the process. I demand that the President go to Congress before going to war. I’m big on checks and balances. I’m vocal in my support for the fourth, fifth, sixth, seventh and eight amendments. I support these things because I think that a good process will, more often that not, lead to a good result. If the President has to get the permission of Congress to go to war, he’s going to make sure he can make a case for it. We’ll still mess up (see Iraq) but it will minimize the mistakes.

By the same token, our civil liberties, in part, protect us from government error. Requiring that cops and prosecutors gather evidence and have a trial before a jury is not a guarantee of a just outcome. But it makes it a lot less likely that injustice will be done, that errors will be made.

Our system of civil liberties and checks and balances is not designed to produce “good government” (often defined as “big government”). It’s not designed to be efficient. An “efficient” government would jail people without trial and engage in whatever endeavors it thought necessary. No, the system is designed to keep mistakes to a minimum. As much as our government messes up, think how much more often they’d mess up without the Bill of Right and the Balance of Powers. The Constitutional process is about minimizing mistakes, even if that means results that are slower and less dramatic than some of us would like.

Almost all endeavors in life have their own set of checks and balances designed to minimized mistakes. Mine has the scientific method and peer review. Journalists minimize mistakes by confirming what details can be confirmed. They talk to as many sources as possible. They check the honesty of all sources. They apply common sense. It’s not perfect … but it does minimize the mistakes.

The CJR report make it clear that Rolling Stone ignored those checks and balances. They didn’t talk to Jackie’s friends. They made only a pro forma inquiry with the fraternity. They didn’t research her background. They did these things because they wanted the story to be true. They got so focused on the result — a sensational horrifying story about a culture of gang rape at a prestigious Southern university — that they said, “to hell with the process”.


Erdely’s statement focuses on her fear of retraumatizing Jackie, something that also comes up in the CJR report. But something less salutary also appears: the fear of losing a really good story. These things seem to have sort of gotten blended together, so that when problems emerged with the reporting, everyone involved at Rolling Stone was able to convince themselves to go forward anyway on the grounds that Jackie is a trauma victim and it’s dangerous to retraumatize her. Yet they don’t seem to have been worried about retraumatizing her by running her story in a national magazine.

Because most of my readers are not journalists, it seems worth noting that if this story had not fallen apart, it likely would have walked away with a National Magazine Award. It checks all the boxes: important social issue, beautiful writing, a vivid and gruesome event at its core, a heart-rending miscarriage of justice. When Jackie threatened to slip away, she was threatening to torpedo Rolling Stone’s major coup. There were certainly other stories that Erdely could have used instead, but less sensational stories that are more typical of campus rapes would not get the kind of readership or professional recognition that the magazine would earn for uncovering a clear-cut and horrific crime that the university had inexplicably failed to pursue.

That is the lesson here: RS became so focused on the goal and so fearful of not reaching that goal that they ignored the steps needed to get there. They pushed the process aside because the story (and the issue) were too important to be bothered with such mundane details as talking to the accused. They might have gotten it right anyway, by sheer luck. But bypassing the fact-checking process left open the possibility that they would be proved dramatically and disastrously wrong, as indeed they were.

This is something to keep in mind as we go forward on campus sexual violence. The Obama Administration has been pushing universities toward looser and looser standards of justice on campus sexual assault: requiring a “preponderance of evidence” standard, for example. There are numerous campuses where, had Jackie made this accusation to the University, the fraternity would have been disbanded and some members expelled. Indeed, there are at least two dozen men suing universities claiming they were railroaded.

The Rolling Stone debacle reminds us of just how badly wrong you can go when you focus on the goal of stopping campus sexual violence instead of the process of ferreting out the truth. Let’s not make the mistakes Rolling Stone made and seems indifferent to. Let’s look at their rush to judgement as something we shouldn’t do.

Yes Doesn’t Mean Yes

The blogosphere has been lighting up for the last few weeks over California’s passage of a “Yes Means Yes” law, which basically says that only affirmative consent qualifies as consent and that this consent has be obtained at every phase of any sexual encounter.

The new law seeks both to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an “affirmative consent” and stating that consent can’t be given if someone is asleep or incapacitated by drugs or alcohol.

“Lack of protest or resistance does not mean consent,” the law states, “nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”

California’s Legislature approved the measure last month, with broad support. But while victims’ rights advocates have welcomed the new standard, the law also has its critics, who say its requirements place too much burden on the accused.

You can guess where most people have landed on this subject. Liberals are praising it as a step against a supposed epidemic of sexual violence on campus (sexual violence on campuses is depressingly real, but the much-touted “one woman in five” stat is an overestimate and in conflict with the government’s own numbers). Many conservatives and libertarians are critical because they see it as canting the field against the accused and an intrusion into people’s private behavior.

Probably the worst commentary on this belongs to Ezra Klein. In his first article, he admitted that “Yes Means Yes” is a bad law but said it was necessary to deal with the problem of campus rape. You can check Conor’s response here. Klein then doubled down with some musings about the legal system which was inaccurate, to say the least.

The thing is, I think much of the debate is missing the point. Whether “Yes Means Yes” is a good law or a bad law, it’s addressing the wrong problem. The problem is not that we have an unclear definition of consent; the problem is that these cases are being handled by universities at all.

To call campus judiciary systems a kangaroo court would be an insult to marsupials. You can read here about the details of a woman who says her boyfriend, during consensual sex, beat her, choked her and anally raped her. When she tried to use the campus judicial system, they allowed him to reference a supposedly exculpatory video, but she was never allowed rebut his testimony by showing the video. They made a big deal over her months-long delay in bringing charges, but didn’t allow her to explain why she delayed (she wasn’t going to bring charges until she found out he had assaulted other women). They were not allowed to consider that he’d been previously found responsible for similar sexual misconduct because the cases had been mysteriously re-opened.

This is not surprising to anyone who has been in academia for long. Campus judiciary systems are frequently a joke. They use rules of evidence made up on the fly, they are usually run by students, staff and/or faculty who have maybe watched an episode of Matlock. The problem is not that they don’t have a clear definition of consent; the problem is that they don’t know what the hell they are doing.

The system is little better than a random number generator. Often, women are subjected to a ridiculous process that leads inevitably to exoneration. But, on occasion, it works the other way and men are railroaded and slimed. There’s no logic or reason to it. The cases that result in men being unfairly kicked off campus are frequently far weaker than the ones that have a campus jury acquitting.

Campus justice systems should stick to what they’re good at: exonerating students who have cheated on exams.

Let’s take a step back for a moment. I have read the details of many cases in which innocent people were convicted of crimes they didn’t commit, often spending decades in prison or on death row. The one thing that jumps out at you, over and over, is the tunnel vision that can grip law enforcement and prosecutors. Once they have the idea that X committed the crime, they begin to see everything in that light. Exonerative evidence is explained away or ignored; confirming evidence is believed and touted. And while academics like to think of themselves as floating loftily above confirmation bias and rushes to judgement, they are just as susceptible to it as anyone else. People tend to decide questions before they have all the evidence. That’s human nature.

The difference is that our legal system has safeguards to try to stop the runaway train of presumed guilt: an adversarial lawyer system, the right to confront witnesses, proof beyond a reasonable doubt, etc. It doesn’t work perfectly, but it works well. Most campus systems have none of that. To the extent that they do, they are trying to get rid of it. In fact, the Justice Department has been pressuring campus legal systems to move toward “preponderance of evidence” and other shortcuts.

The result is that there are few safeguards against a campus judiciary board deciding in favor of whatever their initial conclusion was. If they thought the guy was innocent, they’ll find him innocent. If they think he’s guilty, they’ll decide he’s guilty. How does “Yes means Yes” address that?

It doesn’t. What this really is about is getting a foot in the door for something radical feminists have wanted for a long time: a standard of “enthusiastic consent” to determine the line between sex and rape. According to these theorists, the only time sex should happen is when the woman is eager for it. Anything else is a varying degree of rape.

But under this standard — and to some extent under the standard of “yes means yes” — the vast majority of sex would qualify as rape. When discussing this on Twitter, one of my followers tweeting back that she spent years in a relationship with lousy sex. She was not at all enthusiastic about it, but she consented. Another one pointed out that this would classify all sex work — from street walkers to sugar babies — as rape victims. Still another said she has never been one to initiate sex; but she’s up for it when her partner wants it. In fact, a lot of women’s sexuality is responsive. For a lot of women, what turns them on is being wanted. Dan Savage likes to say that men get aroused and start having sex; women start having sex and get aroused. Lesbians sometimes have difficulty with their sex lives because — whether by genetics or socialization — they have difficult initiating sex out of the blue. And millions of couples have engaged in drunk sex, perfunctory sex or “we’re trying to get pregnant and you’re ovulating so whatever” sex.

Some women (and some men) find the idea of asking for permission sexy. Many women don’t. The simple fact is that human sexuality — and especially female human sexuality — is way too complex for such simple rules. If you put a thousand women in a room and asked them what kind of sex they want, you would probably get two thousand answers. That’s fine. That’s human nature. But California has now taken a step toward codifying one of those answers into law.

I understand the basis for these changes. As Megan McArdle points out, the problem of campus sexual violence is confined to a small percentage of men who do this repeatedly and knowingly. Most women can tell the difference between a guy who misreads her signals and a guy who doesn’t give a shit about her signals (although the people who compile the “one in five” stat count both as assault). What “yes means yes” does is give the colleges more leverage in ejecting the real scumbags from campuses. They’ll no longer be able to waffle and warp when a committee can just say, “Did you ask if she wanted to have anal sex?”

The problem is that 1) this is unlikely to work. Rapists and assaulters will continue to lie and claim that consent was given when it wasn’t. It will just boil down to a more precise version of “he said — she said”; 2) authorities love vagueness in the law. They love it. If you give universities this kind of authority and discretion, it will be abused. It will simply reinforce what the college judicial boards want to do in these cases. If they’ve decided a man is guilty before hearing the evidence, this will just persuade them all the further. And if they’ve decided he’s innocent, this won’t dissuade them. Only a system set up like our current legal system — with witness confrontation, representation and a presumption of innocence — can get close to the truth.

That’s, of course, assuming that the colleges even get the implementation of this law right. We’re now seeing that college regulations are showing up as poorly thought out and badly written, even beyond the bad ideas of legislatures and federal agencies. Michigan’s sexual assault policy is so badly written it makes refusing sex or criticizing someone sexually an incident of sexual violence. Ohio State’s policy regards sex with the elderly or disabled to be assault. I mean, it shouldn’t surprise us that the Buckeyes and Wolverines would fumble the ball like this. But come on. These laws read like they were written by people who’ve never had sex.

Here’s the sexual assault policy I would put in place on college campuses:

1) If someone claims to have been raped or sexually assaulted, this will be handled by the police. As bad as the police are, they’re not a college judiciary committee. A lot of people think this isn’t enough. They want accused rapists kicked off campus so that the victim doesn’t have to live in the same dorms or go to class in the same buildings as him. OK:

2) If a student is the target of a criminal investigation or proceeding, he will be suspended from campus until the case is resolved. He will be allowed to take online courses toward his degree until if/when he is convicted. Even if the charges are dropped, the University will prevent the accuser and accused from living in the same dorm or taking the same classes (as much as practicable). For both their sakes.

Harsh? Yes. But it puts these cases back into the realm of reality where charges, claims, counter-claims and evidence is being handled by people who do this for a living not some psychology professor with an axe to grind.

Sexual violence in our society is down. From the heights of the 1970’s and 1980’s, it has fallen 60-80%, depending on which stats you believe. But it is still too high. A couple of hundred thousand women are sexually assaulted or raped every year. We should do something about that. And to some extent, we have (see 60-80% drop in violence rates). But I agree we should do more. And college campus are a good place to start since most sexual violence victims are under 30.

But this isn’t what we should do.

I agree with what Elizabeth Nolan Brown has been saying: if we really want to do something about sexual violence, let’s start with testing the hundreds of thousands of untested rape kits that are lying around the country. Let’s get states to stop forcing women to pay for their own rape exams, as Louisiana just did. Let’s punish everyone who engages in sexual violence, whether they’re an obscure college student or a member of our political elite.

But let’s not take legal shortcuts based on the rantings of radical feminists. That way lies more misery and no progress.