As the Columbia University student tells it, the encounter was harmless fun: A female freshman invited him into her suite bathroom, got a condom, took off her clothes and had sex with him. But as that young woman later described it to university officials, the encounter was not consensual. The university suspended him for a year.
He felt the outcome was unjust, but he did not know what to do about it. His lawyer, Andrew Miltenberg of Manhattan, did.
Invoking Title IX, the federal gender-equality statute that is typically used to protect the rights of female students, he sued Columbia, saying his client had been “discriminated against on the basis of his male sex.”
At a moment when students who have been sexually assaulted are finding new ways to make their voices heard, and as college officials across the country are rushing to meet new government standards, a specialized class of lawyers is raising its voice, too. They are speaking out on behalf of the students they describe as most vulnerable: not those who might be subjected to sexual assault, but those who have been accused of it.
To do so, they have appropriated the legal tools most commonly used to fight sexual misconduct and turned them against the prosecution, confronting higher education’s whole approach to the issue, which they describe as a civil rights disaster.
“Everyone’s first blush when you think about this is: It’s sort of an ugly position to take,” Mr. Miltenberg said of defending the accused students. “My own family members have said to me: ‘What are you doing? You’re 49 years old. You have a successful business litigation practice. Why would you jump into this?’ ”
He said he felt compelled to get involved when he saw how colleges handled accused students. “You’ve got factual statements made that you’re not necessarily allowed to review and you’re certainly not allowed to have copies of,” he said. “You may or may not be able to present your witnesses. You probably don’t have the chance to cross-examine.”
To women’s rights activists, objections like those may have an oddly familiar ring. For decades, activists have argued that campus policies were biased against accusers, who are typically women; that the officials who run the investigations lacked training; that assailants were absolved far too easily. (One recent study determined that among students found by their colleges to have committed sexual assault, fewer than one-third were expelled.) Now, defense lawyers are denouncing inconsistent standards and inadequate training, but they arrive at the opposite conclusion: The system is biased, the lawyers say, against men.
Last month, 28 members of the Harvard Law School faculty published an op-ed criticizing Harvard’s sexual misconduct policies for “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing,” for exceeding the parameters of Title IX and for “the failure to ensure adequate representation for the accused.”
Harvard defended those policies as “an expert, neutral, fair, and objective mechanism” but said it would continue to review them.
During the 12-month period it most recently tracked, the federal Education Department received 96 Title IX complaints related to sexual violence. In the previous period, that number was 32. The department does not track how many were lodged by women and how many by men.
A database maintained by a group called A Voice for Male Students counted 11 lawsuits this year in which male students “wrongly accused of sex crimes found themselves hustled through a vague and misshapen adjudication process with slipshod checks and balances and Kafkaesque standards of evidence.”
A group of 30 or so lawyers from across the country participate in a running email discussion about how to approach these issues; 20 or so gathered in Washington last month to share their experiences.
A similar number recently stepped into the political arena when they signed a letter denouncing the Campus Accountability and Safety Act proposed by Senator Claire McCaskill, Democrat of Missouri; the measure is intended to help universities address sexual misconduct more effectively. “By presuming that all accusers are in fact ‘victims,’ ” the letter said, “the proposed legislation does a grave disservice to those accused of serious sexual offenses.”
Members of this small but fast-growing legal specialty say the problem dates to 2011, when the Education Department advised colleges to take sexual assault more seriously and to lower the burden of proof for people bringing complaints. Since then, a White House task force has issued new guidelines and the Office of Civil Rights has released the names of more than 85 colleges that are under investigation for not doing enough. Faced with all that political pressure, said Joshua Adam Engel, a lawyer in Mason, Ohio, colleges are panicking.
So are students. Since the beginning of the current semester, when a senior named Emma Sulkowicz began carrying her dormitory mattress as a public protest against the way Columbia had handled her sexual misconduct complaint, Mr. Miltenberg said, he gets a call from a new male Columbia student more or less weekly.
The client who sued the university for discrimination arguedthat his suspension amounted to “a rush to judgment, pandering to the political climate on campus” and pressure from women’s groups. Columbia has sought to have the lawsuit dismissed, saying it failed to prove anti-male bias. “That argument proceeds from both a misapprehension about the nature of university disciplinary proceedings — which are not criminal prosecutions — and a misunderstanding about Columbia’s definition of sexual misconduct — which is intended to protect students not only from forcible rape, but also from unreasonable pressure to accede to sexual advances,” Columbia’s lawyers wrote in a filing last month.
Colby Bruno, senior legal counsel at the Victim Rights Law Center, said the growing involvement of lawyers could be beneficial. But too often, she said, defense lawyers enter the campus proceedings “shouting from the rooftops about things that aren’t relevant to the matter at hand.” Those include due process, a set of regulations that private colleges are not required to observe, and the right to avoid self-incrimination, which applies only to people facing criminal prosecution. “It’s when the decision-makers aren’t equipped to handle attorneys that the decision-makers start getting pushed around, policies start getting changed, and that is where a school can get in real trouble with Title IX,” Ms. Bruno said.
Lawyers for the accused, Mr. Miltenberg said, are not always seeking to have judgments overturned. “Most of the time I’m looking to seal the records or have this redacted upon graduation so it doesn’t follow them around for the rest of their lives,” he said. But success does not come cheaply. Litigating a case through a trial could cost $100,000, he said.
Judith Grossman, a lawyer — and a feminist, she made a point of adding — got involved in the cause when her son successfully fought an accusation of sexual misconduct. “I think that there is no question that there is an issue of sexual assault in this country, on campus and off campus, but this is not the first issue in our country where a bumper sticker approach has been applied to a nuanced problem,” Ms. Grossman said.
The alternative, however, is not so easy to identify. Mr. Miltenberg said he thought colleges should leave the investigation of serious crimes to the police. But the judicial system moves slowly, he acknowledged, and if a daughter of his were assaulted he would not want her sharing a campus with her accused assailant for years as the case inched toward trial.
At Columbia, which recently became one of the few colleges to offer free legal help to both accusers and the accused,Suzanne B. Goldberg, a special adviser to the university’s president on sexual assault prevention and response, observed that “lawyers can help protect the rights of accused students.” But, she said, “they come at a potential cost” to what is set up to be an educational experience. “There is no cost-free solution,” she said.
OUR strategy for dealing with rape on college campuses has failed abysmally. Female students are raped in appalling numbers, and their rapists almost invariably go free. Forced by the federal government, colleges have now gotten into the business of conducting rape trials, but they are not competent to handle this job. They are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.
We have to transform our approach to campus rape to get at the root problems, which the new college processes ignore and arguably even exacerbate.
How many rapes occur on our campuses is disputed. The best, most carefully controlled study was conducted for the Department of Justice in 2007; it found that about one in 10 undergraduate women had been raped at college.
But because of low arrest and conviction rates, lack of confidentiality, and fear they won’t be believed, only a minuscule percentage of college women who are raped — perhaps only 5 percent or less — report the assault to the police. Research suggests that more than 90 percent of campus rapes are committed by a relatively small percentage of college men — possibly as few as 4 percent — who rape repeatedly, averaging six victims each. Yet these serial rapists overwhelmingly remain at large, escaping serious punishment.
Against this background, the federal government in 2011 mandated a ramped-up sexual assault adjudication process at American colleges, presumably believing that campuses could respond more aggressively than the criminal justice system. So now colleges are conducting trials, often presided over by professors and administrators who know little about law or criminal investigations. At one college last year, the director of a campus bookstore served as a panelist. The process is inherently unreliable and error-prone.
At Columbia University and Barnard College, more than 20 students have filed complaints against the school for mishandling and rejecting their sexual assault claims. But at Vassar College, Duke University, The University of Michigan and elsewhere, male students who claim innocence have sued because they were found guilty. Mistaken findings of guilt are a real possibility because the federal government is forcing schools to use a lowered evidentiary standard — the “more likely than not” standard, which is much less exacting than criminal law’s “proof beyond a reasonable doubt” requirement — at their rape trials. At Harvard, 28 law professors recently condemned the university’s new sexual assault procedures for lacking “the most basic elements of fairness and due process” and for being “overwhelmingly stacked against the accused.”
Is the answer, then, as conservatives argue, deregulation — getting the government off the universities’ backs? Is it, as the Harvard law professors suggest, strengthening procedural protections for the accused?
Neither strategy would get to the true problems: rapists going unpunished, the heady mixture of sex and alcohol on college campuses, and the ways in which colleges are expanding the concept of sexual assault to change its basic meaning.
Consider the illogical message many schools are sending their students about drinking and having sex: that intercourse with someone “under the influence” of alcohol is always rape. Typical is this warning on a joint Hampshire, Mount Holyoke and Smith website: “Agreement given while under the influence of alcohol or other drugs is not considered consent”; “if you have not consented to sexual intercourse, it is rape.”
Now consider that one large survey showed that around 40 percent of undergraduates, both men and women, had sex while under the influence of alcohol. Are all these students rape victims? And what if both parties were under the influence? Asked this question, a Duke University dean answered, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent.” This answer shows more ideology than logic.
In fact, sex with someone under the influence is not automatically rape. That misleading statement misrepresents both the law and universities’ official policies. The general rule is that sex with someone incapacitated by alcohol or other drugs is rape. There is — or at least used to be — a big difference. Incapacitation typically means you no longer know what’s happening around you or can’t manage basic physical activity like walking or standing.
So where is this misleading statement coming from? It’s part of the revolution in sexual attitudes and college sex codes that has taken place over the last 50 years. Not long ago, nonmarital sex on college campuses was flatly suppressed. Sex could be punished with suspension or expulsion. This regime kept universities out of the business of adjudicating rape charges. Rape was a matter for the police, not the university.
Beginning in the late 1960s however, sex on campus increasingly came to be permitted. Only nonconsensual sex was prohibited. The problem then became how to define consent.
According to an idealized concept of sexual autonomy, which has substantial traction on college campuses today, sex is truly and freely chosen only when an individual unambiguously desires it under conditions free of coercive pressures, intoxication and power imbalances. In the most extreme version of this view, many acts of seemingly consensual sex are actually rape. Catherine A. MacKinnon took this position in 1983 when she argued that rape and ordinary sexual intercourse were “difficult to distinguish” under conditions of “male dominance.”
Today’s college sex policies are nowhere near so extreme, but they are motivated by a similar ideal of sexual autonomy. You see this ideal in play when universities tell their female students that if they say yes under the influence of alcohol, it’s still rape. You see it in Duke’s 2009 regulations, under which sex could be deemed coercive if there were “power differentials” between the students, “real or perceived.” You also see it in the new “affirmative” sexual consent standards, like the one recently mandated in California, or in Yale’s new policy, according to which sexual assault includes any sexual contact to which someone has not given “positive,” “specific” and “unambiguous” consent.
Under this definition, a person who voluntarily gets undressed, gets into bed and has sex with someone, without clearly communicating either yes or no, can later say — correctly — that he or she was raped. This is not a law school hypothetical. The unambiguous consent standard requires this conclusion.
Sexual assault may not be perfectly defined even in the law, but that term has always implied involuntary sexual activity. The redefinition of consent changes that. It encourages people to think of themselves as sexual assault victims when there was no assault. People can and frequently do have fully voluntary sex without communicating unambiguously; under the new consent standards, that can be deemed rape if one party later feels aggrieved. It will take only one such case to make the news, with a sympathetic defendant, and years of hard work building sexual assault protections for women on campus will be undermined.
Understanding this effort to redefine sexual assault is crucial from a policy standpoint. The new affirmative consent standards are in part an effort to change the culture of sexual relations on campus. “Talking with sexual partners about desires and limits may seem awkward,” counsels Yale’s official sexual misconduct policy, “but serves as the basis for positive sexual experiences shaped by mutual willingness and respect.” If positive sexual experiences are the goal, perhaps schools should continue what they’re doing. An unambiguous consent standard will be unenforceable, but enforceability need not be the criterion when the goal is cultural change. Sending the right message may be more important. Nor should schools raise the burden of proof or adopt other due process protections. Those apply when people are accused of crimes — and the new definitions of consent are divorced from criminality.
But if schools are genuinely interested in preventing sexual assault, they need to overhaul how they think about assault and what they do about it. Prevention, rather than adjudication, should be a college’s priority.
That means, first of all, we need to stop being so foolish about alcohol on campus. A vast majority of college women’s rape claims involve alcohol. Not long ago, 18-year-olds in many states could drink legally. College-sponsored events could openly involve a keg, with security officers on hand to ensure that things didn’t get out of hand. Since 1984, when the federal government compelled states to adopt a drinking age of 21, college alcohol policies have been a mockery. Prohibition has driven alcohol into private spaces and house parties, with schools largely turning a blind eye. When those spaces and parties are male-dominated, it’s a recipe for sexual predation. Such predation has been documented: Attending fraternity parties makes women measurably more likely to be sexually assaulted.
If colleges are serious about reducing rapes, they need to break the links among alcohol, all-male clubs and campus party life. Ideally, we should lower the drinking age so that staff or security personnel could be present at parties.
In any event, schools need to forcibly channel the alcohol party scene out of all-male clubs and teach students “bystander” prevention — how to intervene when one person appears to be taking sexual advantage of another’s extreme intoxication. At the same time, students need to be told clearly that if they are voluntarily under the influence (but not incapacitated), they remain responsible for their sexual choices.
Moreover, sexual assault on campus should mean what it means in the outside world and in courts of law. Otherwise, the concept of sexual assault is trivialized, casting doubt on students courageous enough to report an assault.
The college hearing process could then be integrated with law enforcement. The new university procedures offer college rape victims an appealing alternative to filing a complaint with the police. According to a recent New York Times article, a “great majority” of college students now choose to report incidents of assault to their school, not the police, because of anonymity and other perceived advantages.
But the danger is obvious. University proceedings may be exacerbating the fundamental problem: the fact that almost no college rapists are criminally punished — which they will never be if the crimes are never reported to the police. Nationwide, the Department of Justice states that about 35 percent of rapes and sexual assaults were reported to the police in 2013. That’s not enough, but it’s a lot better than the 5 percent reported by college women.
Rape on campus is substantially enabled by the fact that rapists almost always get away with their crimes. College punishments — sensitivity training, a one-semester suspension — are slaps on the wrist. Even expulsion is radically deficient. It leaves serial rapists free to rape elsewhere, while their crimes are kept private under confidentiality rules. If college rape trials become a substitute for criminal prosecution, they will paradoxically help rapists avoid the punishment they deserve and require in order for rape to be deterred.
But colleges can’t just leave sexual assault victims to the criminal justice system, in part because most victims are so reluctant to report assaults to the police. That is why integrating college rape hearings with law enforcement is critical. New training for the police and prosecutors is essential, too. Special law enforcement liaison officers who know how to respectfully receive and vigorously act on sexual assault complaints should be present in every college town. They should be at every college sexual assault hearing. The rights of the accused have to be protected, but whenever there is evidence of a rape on a college campus, the police need to know.
Everything possible should be done to encourage victims to participate in a criminal investigation; if students make a formal complaint of rape to their school, the college should provide them with a lawyer to go with them to the police, help them report the crime and ensure they are treated properly. Meanwhile, the hearing process should be put in the hands of trained investigatory personnel and people with criminal law experience.
Along with returning the definition of sexual assault on campus to its legal meaning, these changes could better protect the accused and help identify and punish rapists.