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The Worst Way to Address Campus Rape

Two ideas that are so bad, they're dangerous

AP Photo/Jae C. Hong

By and large, the American public now considers rape and sexual assault on college campuses to be a problem. These crimes have finally become political and cultural priorities. Ideas to address and even prevent rapes and assaults are coming out of the woodwork. Here’s the problem: a number of those ideas not only suck, but they are actually hazardous.

Recently, the New York Times has spilled ink over two especially terrible ones. You may have heard the gun-lobby fantasy that women carrying firearms protects them from being raped. This is a key function of bills in 10 states that would permit the legal carrying of loaded weapons on campus, according to the Times’ Wednesday report.

One enthusiastic bill sponsor, Nevada Assemblywoman Michele Fiore, actually said this on the record:

"If these young, hot little girls on campus have a firearm, I wonder how many men will want to assault them. The sexual assaults that are occurring would go down once these sexual predators get a bullet in their head."

That argument is rubbish. Forget, for a moment, the tragicomic notion of more 18- to 21-year-olds packing heat on university campuses. Their skill with a weapon or fighting ability isn’t what I’m worried about; basic training didn’t help the tens of thousands of people in the military who suffered penetrative sexual attacks in 2014. Clay Risen, a senior editor of the Times op-ed page, was more direct. “Just saying, letting women carry guns on campus to deter rape also means letting rapists carry guns,” he tweeted.

Telling a potential rape victim to carry a gun isn’t rape prevention. It’s solution avoidance. These would-be remedies exacerbate the problem they purport to solve, making victims responsible for preventing their own attacks instead of putting the onus on rapists. Moreover, bills like this deflect attention from most of the people who are committing rape: depending upon which statistics you cite, anywhere from two-thirds to 80 percent of rapes are committed by someone the victim knows.

But actual facts are peripheral to politicians who seek to exploit the recent national prioritization of campus sexual assault. The Times report exposed bill sponsors like Fiore, who in 2013 bragged about carrying weapons in gun-free zones, for “hoping that the national spotlight on sexual assault will help them win passage of their measures.” In short, they’re pimping the issue to get more guns into the hands of more people, consequences be damned. It gets worse.

A recent Times op-ed by Judith Shulevitz ran under a bold headline: “The Best Way to Address Campus Rape.” It’s not to prevent, necessarily; Shulevitz began by focusing on Daily Beast interview of Paul Nungesser, the Columbia University student who denies that he raped Emma Sulkowicz, his classmate and friend. Last summer, Sulkowicz became perhaps the most visible accuser we’ve seen in some time, protesting the university’s handling of her allegation and Nungesser’s continued presence on campus by carrying around the mattress where the attack allegedly occurred.

Shulevitz pivoted, addressing how colleges and universities should adjust their policies and must collectively demand that the federal government change its own policy mandates. This is the suggestion that concerned me the most:

… universities should insist that determinations of guilt or innocence rely on a “reasonable-person test,” according to which the accused is only culpable if a reasonable person would have considered his actions to be wrong. Without that standard, his fate may rest on her subjective judgment — if she feels that he imposed unwanted sexual contact on her, no matter what he actually did, then he can be found to have harassed or raped her. (Harvard’s controversial new policy leaves out the reasonable-person standard, which is partly why 28 of its law professors have publicly objected to it.)

Given the fact that this country is still fighting to grasp the seriousness (or in some cases, the very definitions) of rape and sexual assault, who or what is “reasonable”? How do we know why Harvard Law professors object to this? (Shulevitz doesn’t quote any of them and it isn’t in their October 2014 statement bemoaning the lack of due process for the accused.) And what, exactly, is the “reasonable-person” test?

As Shulevitz quoted no experts on those subjects, I asked one to put the test into context.

“The reasonable-person standard kept our legal system oblivious to women and people of color since at least the 1700s,” said Katie Rose Guest Pryal, an author and attorney who covers health and higher education. “And yet that’s her suggested cure for our problems, whatever they are, with campus rape? No. Adopting the reasonable person standard is the opposite of what we should do.”

What we should do, Pryal said, is do what Harvard did. “What Harvard adopted, with its ‘totality of circumstances’ standard, is not a subjective standard at all. ‘Totality of circumstances’ is a very respectable, real standard that we use in law to make determinations.” That standard, according to Webster’s New World Law Dictionary, “concentrates on looking at all the circumstances surrounding the alleged violation rather than only one or two aspects, as had been the case before.”

The University of Pennsylvania, which I attended, implemented new sexual-assault policies similar to Harvard’s on February 1. On Wednesday, 16 Penn Law professors—nearly one-third of the Law School faculty—raised similar concerns about due process for the accused. “We do not believe that providing justice for victims of sexual assault requires subordinating so many protections long deemed necessary to protect from injustice those accused of serious offenses,” the letter read in part.

Feminist author and journalist Jessica Valenti, who parried Shulevitz’s concerns about due process in her Guardian column, was similarly incredulous when I spoke with her. “We’re not very reasonable when it comes to rape,” she told me. “As a society, we don’t have a reasonable understanding of what rape is, we don’t have reasonable responses—we’re still a culture that overwhelmingly victim-blames. When Steubenville happened, the kid who walked in on the assault said he didn’t know that was rape. Teenagers have gotten the message that you shouldn’t drive drunk, but not that penetrating an unconscious girl is rape.”

Pryal added that Shulevitz’s column was fear mongering. “As a person who was raped as a child and as an adult, I know what it means to be afraid,” she said. “But as a mother of two sons, I know what it means to be raising young men in this country—and what it means to fear for my children. I’m just not afraid of false rape accusations. The arguments in [Shulevitz’s column] are red herrings. And those red herrings are everywhere.”

College is where people learn to reason in the first place. The legal standard of “reasonable-person,” no matter what gender that person is, seems that it could become outright dangerous when applied to rape and sexual assault in a collegiate setting. Other experts I spoke to indicated that something like this hadn’t even been discussed in the activist conversation about how we address sexual assault. Shulevitz’s solution is a terrible one that threatens to further muddle the collegiate adjudication process for sexual assault that needs to get less complicated. Adding more guns and an inappropriate legal standard to the debate doesn’t help.