Law Profs Ignore Facts in Discussing Sexual Assault Procedures

Law professors at the University of Pennsylvania law school recently issued an open letter entitled “Sexual assault complaints: protecting complainants and accused students at universities.” Like the joint letter from fourteen attorneys to UVA President Therea Sullivan, the Penn law professors’ letter provides well-reasoned, detail critique of the injustices of policies for addressing sexual assault. We applaud the Penn law professors’ statement. The Penn law professors have shown far more courage than the vast majority of their law professor colleagues in addressing fundamental issues directly relevant to teaching law.

Serious consideration of new policies for adjudicating sexual assaults at universities must go further. The first point of the Penn law professors’ letter assumes that a sexual-assault crisis exists:

Although our comments and criticisms focus on universities’ procedures for adjudicating sexual assault complaints, we recognize the far more important issue: how can universities help to change the culture and attitudes that lead to sexual assaults? Our first priority should be to reduce the frequency of assaults.

No matter what level of assaults exists beyond the unattainable utopia of zero, the frequency of assaults can always be reduced. Subordinating fundamental fairness to the “first priority” of reducing the frequency of assaults requires justification in facts of real, present circumstances.

Dominant, deeply entrenched interests have greatly distorted the facts about sexual victimization. Facts have been systematically distorted in two ways:

  1. Sexual victimization of men have been ignored, obscured, or not counted as real rape.
  2. Sexual victimization of women has been greatly inflated through national survey design changes over more than two decades.

The claim that “one in five young women experiences rape during college” has been widely disseminated through authoritative sources. On close examination, that figure completely lacks  a reasonable factual basis. Important issues of adjudicating rape / sexual assault / sexual victimization have been obscured within technical issues of survey methodology. Excessive use of alcohol and drugs are a serious problem on and off college campuses. Is there a sexual-assault crisis on college campuses sufficiently extreme to have higher priority than fundamental fairness in adjudicating those serious criminal claims? The answer to that question is far from factually clear.

In considering claims of a sexual-assault crises on campus, important social facts have gone largely unrecognized. These facts, which are beyond reasonable dispute, should be recognized and should prompt important questions:

  1. In 2009-2010, 46% more college degrees were awarded to women than to men. Is a hostile environment for men on college campus contributing to this highly gender-disproportionate degree distribution?
  2. In 2010, about 10 times as many men were held in prisons and jails as were women. Evidence of anti-men gender discrimination in the criminal justice system is compelling and largely ignored. What is being done to eliminate anti-men gender bias in campus adjudications of sexual assault claims?
  3. Since the early 1990s, sensational, false claims  about the extent of domestic violence against women have been prevalent in public discourse. Law reviews have performed worse than the U.S. Congress in bringing reason to claims about domestic violence against women. Changes in domestic violence plausibly contributed to the development of the extraordinarily high U.S. incarceration prevalence. Is this policy experience being studied seriously beyond appallingly bigoted scholarship? Is true understanding of domestic violence emergency law informing wide ranging discussion of new sexual assault policies?

The new, fundamentally unfair sexual assault policies that the U.S. Department of Education is pushing on colleges and universities aren’t the result of a few crazed federal bureaucrats. Those policies are deeply connected to the legal academy. The legal academy is deeply complicit in constituting men as the criminal sex and facilitating the U.S.’s world-leading prevalence of incarceration.

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