the Missoula Police obtained incriminating statements from a suspect who admitted to having intercourse with a mentally ill woman, including statements that he couldn’t “determine” how soon he had stopped having sex with the woman after she asked him to stop and told him he was causing her “vagina” to “hurt.” The Missoula Police referred the case to the County Attorney’s Office, recommending that the prosecutor charge the suspect with sexual intercourse without consent. Despite the incriminating statements, the County Attorney’s Office declined to bring any charges in the case.
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THE MISSOULA RAPE crisis aired a lot of unpleasant truths and generated no small amount of anguish. More than a few of those tainted by the scandal remain in denial, like Fred Van Valkenburg. But the reforms prompted by the Missoulian’s reporting and the subsequent DOJ investigation were significant, nevertheless. The revamped practices have already increased the likelihood that any given sexual assault in Missoula will be successfully prosecuted, even with Kirsten Pabst now running the Missoula County Attorney’s Office. The agreement between Van Valkenburg, the Montana attorney general, and the U.S. Department of Justice requires the MCAO to submit to two years of oversight by an independent “Technical Advisor,” who will be paid $150,000 to keep close tabs on the effectiveness of the MCAO under Pabst’s leadership.
It should be reiterated, moreover, that the deficiencies at the heart of the Missoula imbroglio were not unique to western Montana. The DOJ investigation identified 350 sexual assaults of women that were reported to the Missoula police during the fifty-two months from January 2008 to May 2012. The Bureau of Justice Statistics estimated that in 2010, the annual rate of sexual assaults of women in cities with populations under 100,000 was 0.27 percent, which for Missoula*1 equates to 90 female victims per year, or 390 over a period of fifty-two months. This suggests that, rather than being the nation’s rape capital, Missoula had an incidence of sexual assault that was in fact slightly less than the national average. That’s the real scandal.
Part of the reason so many rapists are able to offend with impunity is that our adversarial system of justice “has erected formidable procedural obstacles to conviction,”*2 as Richard A. Posner explains in his book The Problems of Jurisprudence:
These have succeeded in reducing the probability of convicting innocent persons to an extremely low level, but the price is that many guilty persons are acquitted (especially those who can afford to hire top-quality lawyers), or are allowed to plead guilty to crimes much less serious than those they actually committed.
Posner, the most cited legal scholar in the country, is a Republican who was nominated by President Ronald Reagan to a seat on the U.S. Court of Appeals for the Seventh Circuit. And here’s what a liberal Democrat, Harvard Law School professor Alan Dershowitz, has to say about our adversarial justice system in his provocative book The Best Defense:
I have learned that despite the constitutional presumption of innocence, the vast majority of criminal defendants are in fact guilty of the crimes with which they are charged. Almost all of my own clients have been guilty….
I am not unique in representing guilty defendants. That is what most defense attorneys do most of the time. The Perry Mason image of the heroic defender of innocent victims of frame-ups or mistaken identification is television fiction….
Once I decide to take a case, I have only one agenda: I want to win. I will try, by every fair and legal means, to get my client off—without regard to the consequences….
There’s an old story about the lawyer who has just won a big case for his client and cables him: “Justice has prevailed.” The client fires off a return telegram: “Appeal immediately.” The story underlines an important point about the realities of our legal system: nobody really wants justice. Winning is “the only thing” to most participants in the criminal justice system—just as it is to professional athletes. Criminal defendants, and their lawyers, certainly do not want justice; they want acquittals, or at least short sentences….
The courtroom oath—“to tell the truth, the whole truth and nothing but the truth”—is applicable only to witnesses. Defense attorneys, prosecutors, and judges don’t take this oath—they couldn’t! Indeed, it is fair to say the American justice system is built on a foundation of not telling the whole truth. It is the job of the defense attorney—especially when representing the guilty—to prevent, by all lawful means, the “whole truth” from coming out.
Because the legal system stacks the deck more heavily against sexual-assault victims than victims of other crimes, it’s easier to keep the whole truth from coming out when the defendant in question has been charged with rape. It’s part of the cost of the constitutional right to due process.
Nevertheless, a small but influential cadre of cops, prosecutors, and academics has developed a set of “best practices” that can help prosecutors win more rape trials, even while scrupulously respecting the rights of the accused. These practices have been systematized by the National District Attorneys Association and End Violence Against Women International, and they are now being taught to cops and prosecutors nationwide. Seminars are offered in such subjects as the science of trauma, in order to improve techniques for interviewing rape victims and help prosecutors debunk rape myths when they face skeptical jurors.
Similar skills are being taught to university adjudicators of sexual-assault cases. But holding campus rapists accountable presents a set of unique challenges, because the university adjudication process hasn’t been standardized and, thus, varies tremendously from one institution to another. A handful of colleges and universities have established effective systems for investigating and resolving rape allegations, but at too many institutions of higher learning, the procedures for adjudicating sexual-assault cases bring to mind a goat rodeo and are fair neither to victims nor those accused of assaulting them. Some of the country’s most esteemed universities (Harvard being a prime example) have the most dysfunctional, poorly conceived sexual-assault policies.
In April 2014, to encourage universities to come to grips with the problem, President Barack Obama released a report titled “Not Alone,” which announced a detailed plan to provide schools with protocols for improving their response to sexual assaults. A few days later, to turn up the heat, the U.S. Department of Education’s Office for Civil Rights publicized a list of fifty-five colleges and universities under investigation for violating federal laws concerning the handling of sexual-violence complaints. The list, which has since grown to more than ninety schools, includes many high-profile institutions, among them Harvard; Princeton; Dartmouth; Amherst; the University of California, Berkeley; the University of Colorado; the University of Denver; the University of Connecticut; Florida State; Emory; the University of Chicago; Boston University; the University of Massachusetts, Amherst; Michigan State; Sarah Lawrence; Ohio State; Swarthmore; Temple; Vanderbilt; and Southern Methodist University.
Critics have attacked the Obama administration’s plan, insisting that universities have no business adjudicating sexual assaults. The American Council of Trustees and Alumni (ACTA), a conservative organization founded by Lynne Cheney, the wife of former vice president Dick Cheney, has been one of the most vocal critics. In a statement released to the media in June 2014, ACTA president Anne D. Neal wrote,
Sexual assault is a serious matter.
That is why Congress should vigorously oppose efforts by the Obama Administration and the Department of Education’s Office of Civil Rights (OCR) to reduce criminal matters to sensitivity brigades on our college campuses.
Rape and sexual assault are felonies and they are matters for the police and criminal justice system—not universities. The higher education community simply is not equipped to play judge, jury and executioner in matters that require the careful eye of police and jurists. Both accusers and the accused are given short shrift when due process and the Constitutional safeguards of the criminal justice system are swapped for amateur investigators and
ad hoc college tribunals….
Title IX—which initially focused on gender equity in college sports—has now become a catch-all provision to justify massive federal intrusion. Congress should take steps immediately to roll back this unintended expansion, first, by defunding the OCR until there is public notice and rulemaking on these issues. OCR should not be allowed, for example, to lower evidentiary standards in disregard of Constitutional principles and Americans’ deep respect for due process—by bureaucratic fiat….
It should come as no surprise that, when students admit to spending a majority of their time sleeping and socializing, as they do today, they fill the void created by a lack of academic rigor and substance with drinking and extreme behaviors.
In a Washington Post column published in June 2014, George Will, the Pulitzer Prize–winning author and Fox News pundit, disparaged Obama’s efforts to address what Will dismissed as “the supposed campus epidemic of rape, a.k.a. ‘sexual assault.’ ” After accusing the White House of making “victimhood a coveted status that confers privileges” and, thus, encourages victims to “proliferate,” Will further complained,
Now the Obama administration is riding to the rescue of “sexual assault” victims. It vows to excavate equities from the ambiguities of the hookup culture, this cocktail of hormones, alcohol and the faux sophistication of today’s prolonged adolescence of especially privileged young adults….Academia is learning that its attempts to create victim-free campuses—by making everyone hypersensitive, even delusional, about victimizations—brings increasing supervision by the regulatory state that progressivism celebrates.
The reaction to Will’s remarks was caustic and swift. “The last word I ever expected to hear to describe a rape victim is ‘privileged,’ ” wrote Jessica Valenti in the Guardian. “It takes a particular kind of ignorance to argue that people who come forward to report being raped in college are afforded benefits of any kind.”
United States Senators Richard Blumenthal of Connecticut, Dianne Feinstein of California, Tammy Baldwin of Wisconsin, and Robert Casey of Pennsylvania posted a letter to Will online, blaming him for fostering a culture that enables rape:
[Y]ou trivialize the scourge of sexual assault, putting the phrase in scare quotes and treating this crime as a socially acceptable phenomenon. It is in fact a spreading epidemic, and you legitimize the myths that victims and victim advocates have worked tirelessly for decades to combat.
Your column reiterates ancient beliefs about sexual assault that are inconsistent with the reality of victims’ experiences, based on what we have heard directly from survivors.
Despite the deeply flawed ways that many universities investigate and adjudicate rape allegations, it’s important that they not be allowed to abdicate their institutional responsibility and simply turn over sexual-assault cases to law enforcement agencies, as ACTA president Anne Neal, and others, have argued they should. Criminal investigations of students accused of rape should be undertaken in addition to universities’ disciplinary proceedings, not in lieu of them. The criminal justice system simply moves too slowly and is constrained by too many “formidable procedural obstacles,” as Judge Posner put it, to reliably punish campus rapists and remove them from the academic community. Expelling a rapist isn’t an ideal outcome, because the offender remains on the loose, free to rape elsewhere. Expulsion is far better than no punishment at all, however. At least it spares the victim from having to live and study in close proximity to her assailant.
The oft-repeated claim that university adjudications categorically deny the constitutional right of due process to perpetrators is specious. Campus disciplinary proceedings cannot, and should not, be held to the same restrictive standards as criminal proceedings, because they don’t result in incarceration or require the rapist to register as a sex offender. University officials, like high school officials, must be allowed to expel students who pose a threat to other students, without waiting many months, or even years, for the criminal justice system to run its course—a course that all too often fails to convict individuals who are guilty of rape, or even charge them with a crime.
There is nothing inherently wrong with universities relying on a lower evidentiary standard—“a preponderance of evidence”—for the burden of proof. A preponderance of evidence is all that’s required of plaintiffs to prevail in most civil litigation, even when the defendant has been accused of a wrongful act that violates criminal law. O. J. Simpson was infamously acquitted of the murders of Nicole Brown Simpson and Ron Goldman, because the government failed to convince a jury that Simpson was guilty of the criminal charges beyond a reasonable doubt. Nevertheless, when Simpson was found liable for the wrongful death of Goldman in a civil lawsuit by Goldman’s father, based on a preponderance of the evidence, few Americans believed the verdict was unjust.
All colleges and universities require students to follow the rules of the institution they attend. If a student violates school policy by failing classes, or cheating on exams, or dealing drugs, or sexually assaulting another student, school officials not only have the right to sanction the offending student, they have an obligation to do so.
When a student is accused of sexual assault, a university needs to render its judgment with great care, because to be labeled a rapist carries an indelible stigma, and to incorrectly find the student guilty could cause him lasting harm. But a university needs to take just as much care not to incorrectly find the student innocent, because doing so would send the message that he was falsely accused, unjustly stigmatizing the victim and compounding the trauma of being raped. It’s easy to forget that the harm done to a rape victim who is disbelieved can be at least as devastating as the harm done to an innocent man who is unjustly accused of rape. And without question, the former happens much more frequently than the latter.
Females between sixteen and twenty-four years old face a higher risk of being sexually assaulted than any other age group. Most victims of campus rape are preyed upon when they are in their first or second year of college, usually by someone they know. And it’s during the initial days and weeks of a student’s freshman year, when she is in the midst of negotiating the fraught transition from girlhood to womanhood, that she is probably in the greatest danger.
Instead of shirking their legal and moral obligations by leaving it up to law enforcement agencies to protect female students, universities need to formulate procedures for adjudicating sexual-assault complaints that are uniform, streamlined, and fair to all parties. The process should swiftly identify student offenders and prevent them from reoffending, while simultaneously safeguarding the rights of the accused. Establishing such a process will be difficult, but it’s not rocket science. The challenge can be met, and must be met, because failing to do so would be unconscionable.
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IN 2012 I LEARNED that Laura Summers,*3 a woman in her late twenties with whom my wife and I have a close relationship, had been raped when she was in her mid-teens by a male peer. A few years later she was sexually assaulted by a different acquaintance; this time the perpetrator was a trusted family friend. The men who assaulted her didn’t just steal her innocence; they poisoned her understanding of who she was. They transformed her into a kind of ghost, trapped forever in the act of being violated.
In the wake of these betrayals, Laura sought relief by focusing obsessively on her career, sometimes working forty-eight hours or more without a break. She gobbled Adderall to stay awake and guzzled alcohol to fall asleep, following this regimen for years with grim perseverance. It was an unconscious attempt to annihilate herself, she now recognizes, in order to escape the despair that hounded her without respite.
I wasn’t aware that Laura had been assaulted, or was so disconsolate, until she ended up at The Meadows, a facility in Arizona that treats trauma and addiction. During the period that preceded her arrival there, Laura repeatedly found herself engaging in one-night stands with uncaring men. She told me that while she was at The Meadows, “I learne
d about the concept of ‘trauma repetition,’*4 and my therapists identified for me that my sexual acting-out was a reaction to the trauma of being sexually assaulted—self-destructive behavior that happened almost entirely when I was highly inebriated, the same conditions of the original assaults.” She was trying to take back control of her life from the men who had raped her. It was a heartbreaking effort to make the world safe again.
Laura suffered intensely for many years from being sexually assaulted. And her misery, she said, was magnified by the stigma attached to the unhealthy compulsions that tyrannized her existence after the assaults. In this regard she was like many other rape victims. Their self-destructive behaviors are often held up as “proof” that they are unreliable and morally compromised, or that they deserved to be raped.
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AFTER LAURA TOLD me about what she’d endured, I was angry with myself for being so uninformed—not only about her ordeal but about non-stranger rape in general. So I resolved to learn what I could about it. I did a lot of reading, and I sought out rape survivors who were willing to share their stories. Writing this book was an outgrowth of that quest.
As the scope of my research expanded, I was stunned to discover that many of my acquaintances, and even several women in my own family, had been sexually assaulted by men they trusted. The more I listened to these women’s accounts, the more disturbed I became. I’d had no idea that rape was so prevalent, or could cause such deep and intractable pain. My ignorance was inexcusable, and it made me ashamed.
For five months in 2006 and 2007, while doing research for an earlier book, I was embedded with combat troops in Afghanistan. After that book was published, some veterans I’d come to respect urged me to join their weekly group therapy sessions. Over the years that followed, several vets in the group—soldiers and Marines who had served in Vietnam, Iraq, and Afghanistan—talked movingly about their struggles with post-traumatic stress. And some of what they described sounded a lot like what Laura was grappling with.