This post was authored by Austin Henshaw
The Salem Witch Trials. McCarthyism. Day-care sex-abuse hysteria of the 1980s. All cases of moral panics which led to violations of civil liberties and punishment of the innocent. Because human nature doesn’t change, history is known to repeat itself, and unfortunately we are seeing remnants of previous moral panics today in our institutions of higher learning in regards to campus sexual assault.
It’s clear from studying the past that moral panics have negative consequences, but that is something policy makers and misguided activists don’t seem to realize. The main thesis behind Hazlitt’s Economics in One Lesson is “The art of economics consists in looking not merely at the immediate but at the longer effects of any act or policy; it consists in tracing the consequences of that policy not merely for one group but for all groups.” Misleading data pushed by activists and well-intentioned policymakers and administrators is having a devastating effect on people’s freedoms.
You have probably heard the statistic “One in five college women will be victims of sexual assault,” from the bully pulpit of a politician, a course you were required to take in a university setting to fulfill a general education requirement, or a news report describing an epidemic of depravity and sexual violence on college campuses. Can this data be considered reliable though? The statistic comes from a 2007 study commissioned by the U.S. Department of Justice. The study was an online survey circulated to a random sample of 5,446 undergraduate women at two public universities. The results found that approximately 20% of the women responding had experienced completed or attempted sexual assault since entering college. However, response rates at both universities were low with issues with self-selection bias, a non-representative sample of students, and loose operational definitions of what constituted sexual assault. Even the original researchers in the study stated the results were never meant to be generalized to the rest of the student population, especially since it was just conducted at two universities out of hundreds of possible institutions. This did not stop activists and politicians from citing this statistic as justification for what many civil libertarians consider to be federal overreach into higher education and student’s sex lives.
Additionally, let’s hear why the 1 in 5 stat isn’t representative of college campuses nationwide, courtesy of Christopher Krebs and Christine Lindquist – two of those who directed the study.
As two of the researchers who conducted the Campus Sexual Assault Study from which this number was derived, we feel we need to set the record straight. Although we used the best methodology available to us at the time, there are caveats that make it inappropriate to use the 1-in-5 number in the way it’s being used today, as a baseline or the only statistic when discussing our country’s problem with rape and sexual assault on campus.
So what are their reasons? For starters, the sample wasn’t representative enough to extrapolate nationally with it. As they explain; “First and foremost, the 1-in-5 statistic is not a nationally representative estimate of the prevalence of sexual assault, and we have never presented it as being representative of anything other than the population of senior undergraduate women at the two universities where data were collected—two large public universities, one in the South and one in the Midwest.”
Second, the definition of rape is more liberal than the law. “Second, the 1-in-5 statistic includes victims of both rape and other forms of sexual assault, such as forced kissing or unwanted groping of sexual body parts—acts that can legally constitute sexual battery and are crimes.” Among the other forms of sexual assault that could be counted as “rape” included rubbing up against someone in a sexual way (even with clothes on), and sexual penetration with a finger. Sexual assault crimes that should be punished undoubtedly, but not within the legal definition of “rape.”
Back in 2011 Assistant Secretary for the Office of Civil Rights (OCR) in the Department of Education released the famous “Dear Colleague Letter” to provide campuses guidance in confronting campus sexual violence, citing the popular but disputed sexual violence victimization statistic mentioned above. A “preponderance of evidence” standard was suggested for campus adjudicators to use as opposed to the “guilty beyond a reasonable doubt” the criminal justice system uses. While this was not a formal requirement, universities were essentially coerced into following this guideline lest they potentially run afoul of Title IX and risk losing federal funding.
This guideline is not without it’s critics. The Foundation for Individual Rights in Education (FIRE) has consistently criticized this policy for denying due process to accused students and for potentially violating the Administrative Procedure Act, as universities had little say in the regulatory process they were now being bound to. Constitutional lawyers and scholars from Ivy League institutions such as Harvard have condemned the 2011 Dear Colleague Letter for due process violations, and even the Rape, Abuse, and Incest National Network (RAINN), the largest sexual violence prevention organization in the country, has said campus administrators are not fit to adjudicate cases which are best handled by the criminal justice system.
This is not to say that the way campuses handled sexual assault before OCR overreach was ideal. Oftentimes when a crime was reported campuses would try to hide the fact to preserve their public image. Many victims were denied justice. However, creating a system where it is much more likely that innocents will be punished to potentially catch more legitimate perpetrators runs afoul of Blackstone’s formulation, the principle that “It is better that ten guilty persons escape than that one innocent suffer”. The ratio can be debated, but the intent is that governments and courts err in favor of the innocent.
The consequences of OCR overreach and Title IX abuses have fortunately been getting more media coverage recently. Even before the 2011 Dear Colleague Letter, there was the Duke Lacrosse case where several innocent reputations and lives were ruined. Most recently the now-retracted “A Rape on Campus” from Rolling Stone at the University of Virginia caused many to question the validity of campus rape hysteria and if we have gone so far in trying to confront campus rape, we are now violating the civil liberties of another group of people.
Despite President-Elect Trump’s authoritarian leanings, lack of policy specifics, and unfortunate rhetoric when it comes to sexual assault, there is ironically some hope for a Trump presidency in improving the current situation we are seeing on campuses. While he himself has not spoken about campus sexual assault, he has vowed to overturn many of the unconstitutional actions of the Obama administration. The Republican platform addresses campus sexual assault as well, stating that reports of sexual assault should be “investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge.” It criticized the Obama administration’s policies, saying the White House’s “distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse contravenes our country’s legal traditions and must be halted.”
Campus sexual assault is a legitimate problem when it happens, but victims will be helped best by accurate data supported by good methodology, and policies that guarantee fairness and constitutional protections for all parties. When high-profile campus cases are proven to be false, not only does it ruin the lives of the innocent, it takes away from the legitimacy of actual victims. It’s time to restore logic and reason in combating the problem and be rid of the hysteria currently plaguing our campuses.