The rights of the accused, and the need to hear both sides of a story, are falling by the wayside.
No recent article on the issue of campus sexual assault has attracted as much attention as Sabrina Rubin Erdely’s lengthy piece in Rolling Stone. Detailing an alleged gang rape at a University of Virginia fraternity — an incident that the accuser never reported to law enforcement — the story (if true) suggests utter depravity, with the accused students deserving lengthy prison sentences. Erdely’s writing has already prompted policy changes at the university, including the suspension of all fraternities.
The Virginia case raises two broader points about the campus sexual-assault debate. The first is the disturbing state of campus culture, which seems intent on denying a meaningful role for the police in investigating allegations of campus sexual assault, to the detriment of accusers and the accused alike. The second is the willingness of too many in the media to accept as truth allegations of campus sexual assault.
Assume, for the sake of argument, that the story as reported by Erdely is accurate. The assault involved a conspiracy of several men who laid in wait in a darkened room, executed an attack that lasted several hours, and have (it seems) maintained silence since the incident.
Given the nature of this alleged attack, it would seem obvious that any investigation would require subpoena power, chiefly to obtain access to contemporaneous e-mails or text messages from the alleged conspirators. The accuser, identified only as Jackie, didn’t seek medical attention immediately after the alleged assault, even though, as Reason’s Robby Soave pointed out, “according to the story, everybody involved was basically rolling around in broken glass for hours.” Jackie’s account would benefit from a full examination of both her medical records and those of the accused students. But the University of Virginia, like all universities, cannot force students to turn over e-mails, text messages, or medical records to the school. (UVA’s proposed new policy admits as much, noting that the school can obtain such information only “subject to the consent of the applicable party.”)
Finally, a successful investigation of this incident might require entertaining plea bargains, with those involved on the fringes of the attack given lighter sentences or not being charged at all in exchange for providing evidence against the leader or leaders of the alleged conspiracy. But the University of Virginia, like all universities, cannot enter into plea bargains with its students.
If, then, Jackie was brutalized, it would be in her interests, as well as those who sympathize with her plight, to see the police, and not the university, investigate this incident. This approach, of course, also would introduce a measure of due process that the University of Virginia’s proposed new sexual-assault policy denies.
In the criminal-justice system, the accused students’ attorney could fully participate at trial, including the right to cross-examine the accuser and other relevant witnesses. The students would receive the right, under Brady, to discovery of all potentially exculpatory evidence and the right to be tried by a jury of their peers. UVA’s proposed new sexual-assault policy gives an accused student none of these rights.
The finding of culpability is made by a single investigator who has to rely on interviews that don’t occur under oath and on whatever evidence he can obtain on a voluntary basis. Under the procedure, the accused student lacks the right to cross-examine anyone and cannot even be present for the investigator’s questioning of his accuser and other inculpatory witnesses. Instead, he obtains only the evidence that the investigator deems “relevant” and chooses to share in his final report. The accused student’s lawyer can be present only for her client’s meeting with the investigator — and even then cannot speak on his behalf, under threat of removal if the university believes she failed “to abide by the limitations on [the lawyer’s] participation.” Finally, a hearing occurs only to determine the penalty, and even there the accused student can be denied a jury of his peers, if the accuser demands a panel of faculty or staff only.
The lesson of the UVA story (again, assuming the allegations to be true) is that the criminal-justice process would protect the accuser by increasing the likelihood that all evidence of the attack would be uncovered, and it would protect the accused by ensuring necessary due-process protections and a fair inquiry. The university, on the other hand, should have no formal role in the investigation.
But it’s very unlikely that most academics, journalists, and politicians of both parties will learn this lesson. Indeed, the primary thrust of sexual-assault policy over the last four years has been in precisely the opposite direction: The federal government, anti-due-process activists on campus, and self-described sexual-assault survivors have acted to separate the criminal-justice system from campus sexual-assault cases.
In an excellent New Republic piece, Judith Shulevitz observed that while universities aren’t overtly discouraging accusers from filing criminal reports, “the proliferating procedures for handling campus sexual assault and the seemingly systemic distrust of the police — communicated either explicitly or implicitly in mandatory orientation sessions as well as when students come in to file complaints — leads to the sense among students that local police are just one option among many, and not an appealing one.” Consider, for instance, Stanford law professor Michele Dauber, an architect of Stanford’s new sexual-assault policy, which removed the former requirement that only a unanimous vote of the disciplinary panel would suffice to brand the accused student as a rapist. Now, if four of the five panelists believe the accuser, even if they are only 50.01 percent certain, the student is convicted. Dauber celebrated her school’s new policy on grounds that it removed the “mock trial” aspect of rape cases (this coming from a professor of law), and she deemed the Stanford approach necessary on the grounds that the county’s local prosecutor had failed to file a sufficient number of sexual-assault cases. It’s hard to imagine any student influenced by Dauber or her policies filing a criminal charge.
In the event, the Obama administration has made clear that it prefers to separate the campus process from police and prosecutors. In a 2013 settlement with SUNY, which previewed recommendations that were similar to those in the 2014 White House task force on sexual assault, the administration required SUNY to conduct its own investigation even when the police had concluded that an accuser was lying. The implicit message: Campus procedures should be so tilted in favor of the accuser that even false accusers might find their story believed.
Perhaps the most shocking element I witnessed when covering the Duke lacrosse case was the reaction of the Duke faculty — especially the notorious Group of 88. Any fair-minded person would have hoped that Crystal Mangum’s allegations were untrue, since they suggested that a local woman had suffered horribly and three of Duke’s own students had committed a monstrous crime. Instead, these professors seemed as if they desperately wanted to believe that three of their students had committed a brutal rape, since this would confirm the professors’ preexisting biases on issues of race, class, and gender.
That mindset too often has dominated how the media has covered campus sexual-assault allegations — all the more so since 2011, when the Obama administration’s Office for Civil Rights issued a formal letter demanding that colleges change their procedures to increase the likelihood that students accused of sexual assault would be found guilty.
In recent days, Richard Bradley, Bret Stephens, Robby Soave, and Ashe Schow have raised serious questions about Erdely’s journalistic objectivity. Perhaps the most troubling piece of evidence on this front came from a highly sympathetic portrayal in the Washington Post, in which Erdely refused to say if she had even attempted to contact the accused students to obtain their side of the story.
Nothing in the Rolling Stone article gives any indication that she made this effort, though in a follow-up interview with Slate’s Hanna Rosin, Erdely cryptically remarked, apparently referring to the fraternity leadership but not the suspects, “I reached out to them in multiple ways. . . . They were kind of hard to get in touch with.”
It’s possible that Jackie is telling the whole truth. But don’t journalists need to get information from both sides — especially in a story such as this, in which the allegations are so serious and Jackie was unable to present any physical evidence (even contemporaneous photographs) to bolster her version of events?
There are few areas in journalism in which telling a story solely from one side — and, like the Group of 88 Duke professors in the Duke case, simply assuming that the preferred side is telling the truth — would be deemed acceptable. But campus sexual assault is one of those areas, perhaps because too many reporters (like the Group of 88) are ideologically inclined to believe the accuser. To take one example from Rolling Stone: Erdely uncritically quotes from a person she describes as “attorney Wendy Murphy, who has filed Title IX complaints and lawsuits against schools including UVA.” There’s no reference to the fact that Murphy was caught in guilt-presuming, factually inaccurate statements over and over and over again in the Duke lacrosse case. Murphy confirmed Erdely’s preferred narrative; that her source should have no credibility was irrelevant.
Erdely is a model of objectivity compared with the three most active reporters on this issue, the New York Times’s Richard Pérez-Peña, BuzzFeed’s Katie Baker, or Huffington Post’s Tyler Kingkade. Pérez-Peña’s treatment of former Yale quarterback Patrick Witt, in which the New York Times went to print even though it didn’t know the identity of the woman who had accused Witt or the allegations that she made, stands as an examplar of journalistic malpractice.
In the coming weeks, we’ll doubtless learn more about events at Virginia, and we’ll see whether Erdely’s story holds up under scrutiny. But if it doesn’t, don’t expect any meaningful changes in the rush-to-judgment attitude that permeates the nation’s campuses.
— K. C. Johnson is professor of history at Brooklyn College and blogs on higher-education issues at Minding the Campus.
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