This article originally appeared in MarketWatch.
Rape is a serious matter. That is why it is unfortunate that a bipartisan group of senators is exaggerating the problem of rape on campus and proposing legislation that encourages academic institutions to throw out due process for the accused.
On Wednesday, eight senators, including Democrat Claire McCaskill of Missouri, Democrat Kirsten Gillibrand of New York, Republican Kelly Ayotte of New Hampshire and Republican Marco Rubio of Florida held a press conference to announce the bipartisan Campus Accountability and Safety Act, which would give academic institutions strict guidelines on dealing with campus assaults. Democrat Richard Blumenthal of Connecticut, another cosponsor, described the proposed law as “an enforceable bill of rights.”
The rationale for the legislation is a 2010 report by the Centers for Disease Control concluding that 18% of women have been raped at some time in their lives.
The White House stated in a January 2014 report, Rape and Sexual Assault: A Renewed Call to Action, that one in five women has been sexually assaulted while in college, an assertion repeated by Gillibrand during the press conference.
But this figure does not match data from the Department of Justice’s Bureau of Justice Statistics, released in October 2013, which show rape/sexual assault rates of 1.3 per 1,000 people in 2012, both reported and unreported rapes. It assumes a crisis where none exists, and interferes in university affairs for no cause.
University of Michigan professor Mark Perry has effectively debunked the CDC number using actual number of reported sexual assaults on college campuses combined with the White House’s underreporting percentage. He concludes that 3% to 5% of women will be sexually assaulted at college —too high, but not 20%.
Why the difference?
The CDC survey that originated the 20% number is flawed. The survey starts out with 201,881 phone numbers, but whittles it down to only 8% of the original sample. Fifty-three percent of the phone numbers are of “unknown eligibility,” hence unused, without stating the reason.
Further, it is the surveyors, rather than the respondents, who determine whether the respondent has been raped. It is unclear why the CDC did not just ask whether the respondent has been raped. In the CDC’s own words, “the survey is designed to assess violence in a way that is consistent across states.”
Then, some questions are ambiguous. For example, the survey asks, “When you were drunk, high, drugged, or passed out and unable to consent, how many people have had vaginal sex with you?” To a typical respondent, it is not clear whether the condition of “unable to consent” applies to “drunk, high, drugged,” or if “unable to consent” is a separate condition. Respondents who had consensual sex while drunk but were able to consent (not exactly an uncommon act on campuses these days) may answer affirmatively, leading the surveyor to wrongfully count this as an instance of rape.
Nevertheless, the survey is a catalyst for potentially harmful bipartisan legislation.
Under the bill, academic institutions would have to require all students to complete a uniform survey on sexual violence, with results being published online. But college students are busy and do not like to take surveys. How many college kids are going to take such a survey seriously? How will the university check the data?
The bill requires those investigating assaults and taking part in hearings to have special training. It sets standards for reporting assaults to law enforcement officials and deciding who can adjudicate the cases. Schools that do not follow the guidelines face fines of 1% of their budgets.
That means more convictions for the accused, without the protections that are the norm in a court of law.
A report released in July by McCaskill, Sexual Violence on Campus, demonstrates through a survey of academic institutions that protections for the accused are being whittled away. Many schools have kangaroo courts, a modern-day version of Arthur Miller’s The Crucible, a 1950s account of the Salem witch trials. But on campuses today it is the women who are protected when they bring charges, and the young men who have no way to defend themselves.
Appendix F of McCaskill’s report contains a survey of university practices. The survey reveals that in 25% percent of schools, the accused may not bring a lawyer or an adviser to the hearing, and in 33% of schools, the accused has no right to call witnesses.
Evidence can be flimsy. In 85% of the schools, no formal rules of evidence apply. Forty-two percent of institutions do not use evidentiary practices such as the state’s rape shield laws. In 56% of cases, names of witnesses are not made available during the hearing, and in 63%, hearsay evidence is allowed.
In only 15% of schools does the accused have to be proven guilty “beyond a reasonable doubt” or “using clear and convincing evidence.” In the remaining 85% of schools, “the preponderance of evidence,” a lesser standard, suffices.
Penalties are substantial. Forty-nine percent of institutions place violations on students’ permanent records. Ninety-four percent of institutions use suspension as a punishment, and 97% use expulsion.
American Enterprise Institute scholar Christina Hoff Sommers told me, “The proposed law includes no mention of due process. The campus gender activists who have promoted the legislation may not care about the rights of the accused, but senators have to care. They are the guardians of a legal tradition that takes exacting precautions to avoid convicting an innocent person of a crime. Presumed guilty seems to be the guiding principle.”
If parents really thought that their daughters had a 20% chance of being raped when they went off to college, they would never send them into such danger. Or, young women and their families would demand single-sex dorms. Single-sex colleges such as Bryn Mawr or Smith would be more popular than Yale or Harvard.
But just the opposite is occurring on campuses. Colleges not only have coed dorms, but now coed bathrooms. Students are lobbying for the right to share campus rooms with people of the opposite sex. Everything is becoming gender-neutral. Young women are demanding closer interaction rather than requesting to be kept apart.
Sexual assault on campus should not fall under the purview of Congress, which cannot even pass its annual budget on time. Rape is a crime, and it is up to state and local governments to uphold the law using strict standards of evidence. And until young women start demanding single-sex dorms on college campuses, reports of a national epidemic of sexual assault are vastly exaggerated.
Diana Furchtgott-Roth, former chief economist of the U.S. Department of Labor, directs Economics21 at the Manhattan Institute. You can follow her on Twitter here.
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