Opinion

opinion | Harvey Silverglate

The new panic: campus sex assaults

The college sexual assault scare is just the most recent in a line of similar rampant social epidemics. Remember the day-care crisis?

emily cooper for the boston globe

The campus sexual assault panic — one of many runaway social epidemics in our nation’s history that have ruined innocent lives and corrupted justice — has now reached its peak. A return to sanity is called for before more wreckage occurs.

My own first memory of a similar panic is the hunt for Communists in America in the period following World War II. There was the infamous “Red Channels,” an anti-communist pamphlet financed primarily by Alfred Kohlberg, a textile magnate with business interests in China and an ally of Chiang Kai-shek. The publication served as a blacklist for the entertainment industry, ending the careers of anyone reportedly linked to organizations remotely identifiable as “progressive.” There was also the House Un-American Activities Committee, and the never-to-be-forgotten Senator Joseph McCarthy. Together, these men helped create a national climate of suspicion that ferreted out very few actual security threats, but ended up punishing many innocents. Remnants of the hunt persisted, but the “scare” essentially died with the senator himself in 1957.

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A more bizarre panic emerged decades later in an unlikely place — child daycare centers. In the early 1980s, reports of sexual abuse by child care workers were picked up by national news outlets and struck fear into parents around the country. Allegations of sexual molestation, including rape, allegedly committed on young children by teachers and school employees, flooded police stations. These accusations often crossed over from the improbable to the utterly fantastic (sometimes with a Satanic bent). But a panoply of unscientific physical and psychological tests, bolstered by highly suggestive child interview methods, proved sufficient to land a still-uncounted number of innocent men and women in prison.

District attorneys and jurors alike bowed to extreme public pressure and railroaded defendants (who were presumed guilty upon being accused) without mercy — indeed they still resist righting their wrongs. The panic raged into the 1990s until scientists like Maggie Bruck, and journalists such as Debbie Nathan and Pulitzer Prize winner Dorothy Rabinowitz, raised sufficient concerns to force judges to re-examine and vacate convictions, a process that continues to this day. (Disclosure: I was on the defense team that freed Bernard Baran, and I continue to work on exonerating Gerald Amirault, both of Massachusetts.)

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The latest national hysteria over campus sexual assault combines aspects of its predecessors: the salacious outrage that characterized the daycare sex panic and the dubious federal stamp of approval that made McCarthyism’s excesses so dangerous. Spectacular — but widely disputed — statistics are touted: 1 in 5 women is sexually assaulted in college, 1 in 3 male students is a potential rapist. The rhetoric popularized by mattress protests and awareness documentaries is a simple one: “Believe the accuser!”

The idea that college campuses are among the most dangerous places for young American women has become so pervasive that when Rolling Stone published one woman’s outlandish account of a brutal gang rape in a University of Virginia fraternity house (a story later proven to be inaccurate on the basis of investigative reporting by The Washington Post), readers swallowed the tale unquestioningly. Finally, the campus disciplinary boards — woefully lacking in even basic standards of due process — are vowing to adjudicate these ostensibly violent felonies and reflexively punishing virtually all who are accused.

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Protestors marched near the University of Virginia in November after a now-debunked story was published about a rape at a UVA fraternity.

Acquaintance or “date rape” is a serious and historically under-enforced offense in the criminal justice system. Sexual violence against women — against anyone — cannot be tolerated. But it’s also true that college campuses are hotbeds of alcohol abuse and sexual activity among young adults often inexperienced with both. Alcohol-fueled and often ambiguous sexual encounters may result in emotional injury. But if the problem is young people’s inability to recognize and respect boundaries, the solution is not to punish a wide range of campus behaviors that would be legally acceptable in the “real world.”

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What’s more, the definition of “sexual assault” has become so broad as to encompass nearly all romantic contact. A sexual advance is considered “unwelcome” on subjective, rather than objective, grounds. In other words, if a complainant feels she was violated, then she was. This rationale is the basis for “affirmative consent” (colloquially known as “yes means yes”) laws, which several states have imposed upon their campuses. Ezra Klein, editor-in-chief of Vox.com and a supporter of California’s “yes means yes” law, admits the law overreaches and that under affirmative consent, “too much counts as sexual assault.” Even so, Klein believes that the innocent men (and occasionally women) who will be thrown out of school are necessary sacrifices to the greater cause of combatting sexual assault on campus. Rhetoric and ideology have overtaken rationality and fairness.

College bureaucrats have taken to adjudicating felonies with a vengeance, largely out of fear of losing federal government funds. In April 2011, the Office of Civil Rights of the federal Department of Education sent a “Dear Colleague” letter to every college and university in the country that accepted federal funds — that is, nearly every school in the nation — advising that unpunished sexual assault would be viewed as a form of unlawful sexual harassment. The ultimate penalty for schools is the withdrawal of federal funding. A more recent update of that letter from the Obama administration advised colleges to reduce the evidentiary standard needed to convict an accused student of sexual assault.

In a race to capitulate, Harvard University one-upped other supine campus administrators last summer by instituting a sexual assault procedure so problematic from the viewpoint of procedural fairness that 28 members of Harvard Law School faculty published an open letter decrying the administration’s “jettisoning [of] balance and fairness in the rush to appease certain federal administrative officials.” The law school then took the remarkable step of actually exempting itself from Harvard’s university-wide sexual assault procedures earlier this year, although the battle for — and against — fairness still rages on.

That battle has been lost at the university level at Harvard, and virtually everywhere in academia. Indeed, earlier this month Columbia University’s administration announced that Columbia students (excepting, interestingly, those women at Columbia’s sister school, Barnard) will be required to participate in a new “sexual respect education program” in order to graduate. The “training” will feature a menu of programmatic options, including an hour-long workshop on “healthy relationships” and various artistic projects. Thus, the sex panic in academia now brings us more training programs, supplementing the indoctrination sessions that have for some time now been features of first year orientation programs at most colleges.

The situation on college campuses has become so dire that civil libertarians are calling for sexual assault investigations to be left to police and prosecutors. Despite the fact that conviction in a criminal court carries severe sentences and other harsh ramifications, frustrated and fearful students, parents, and lawyers seem prepared to risk criminal convictions in their search for investigatory and prosecutorial fairness.

If the past is prologue, it is almost certain that the current campus sexual assault madness will burn itself out, leaving in its wake the wreckage of many young lives. My concern is how long it will be before sanity and decency return.

Harvey Silverglate, a criminal defense and civil liberties lawyer in Boston, is the co-author of “The Shadow University: The Betrayal of Liberty on America’s Campuses.” He is the co-founder, and current chairman, of the Foundation for Individual Rights in Education. Paralegals Samantha Miller and Timothy Moore assisted the author. Silverglate frequently represents students in college disciplinary cases, including (but not limited to) sexual assault allegations.

Editor’s note: Silverglate’s bio has been updated to note that he frequently represents students in college disciplinary cases, including sexual assault allegations.

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