Rennison, an associate professor at the School of Public Affairs at the University of Colorado Denver, recognized in an interview that her study goes against a lot of received wisdom. “Maybe that’s not a really popular thing to say,” she said, adding, “I hate the notion that people think sending kids off to college is sending them to be victimized.”
Any woman who is raped, on campus or off, deserves a fair and thorough investigation of her claim, and those found guilty should be punished. But the new rules—rules often put in place hastily and in response to the idea of a rape epidemic on campus—have left some young men saying they are the ones who have been victimized. They are starting to push back. In the past three years, men found responsible for sexual assault on campus have filed more than three dozen cases against schools. They argue that their due process rights have been violated and say they have been victims of gender discrimination under Title IX. Their complaints are starting to cost universities. The higher education insurance group United Educators did a study of the 262 insurance claims it paid to students between 2006 and 2010 because of campus sexual assault, at a cost to the group of $36 million. The vast majority of the payouts, 72 percent, went to the accused—young men who protested their treatment by universities.
Assertions of injustice by young men are infuriating to some. Caroline Heldman, an associate professor of politics at Occidental College and cofounder of End Rape on Campus, said of the men who are turning to the courts, “These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape.” Sen. Claire McCaskill (D-Missouri), a cosponsor of the CASA bill, said to the Washington Post of these suits, “I don’t think we are anywhere near a tipping point where the people accused of this are somehow being treated unfairly.”
I’ve read through the court filings and investigative reports of a number of these cases, and it’s clear to me that many of the accused are indeed being treated unfairly. Government officials and campus administrators are attempting to legislate the bedroom behavior of students with rules and requirements that would be comic if their effects weren’t frequently so tragic. The legal filings in the cases brought by young men accused of sexual violence often begin like a script for a college sex farce but end with the protagonist finding himself in a Soviet-style show trial. Or, as in the case of Drew Sterrett, punished with no trial at all.
3. The Punishment
At the beginning of his sophomore year, Drew Sterrett was in limbo. He did not know whether he would face further disciplinary action as a result of the accusation against him, and indeed no formal written charge was ever issued. The single, cryptic Skype interrogation—the one that blindsided Sterrett over his summer vacation—was to be his sole hearing with campus administrators. He never met them in person. Sterrett’s suit against the university accuses it of violating his constitutional right to due process. But as he waited out the fall, often there didn’t seem to be any process.
Through September and October, he heard nothing further about the charge. Unbeknownst to him, CB was having second thoughts, as she explained in a deposition taken as a result of Sterrett’s case against the university, because she wasn’t sure she wanted Sterrett to be able to read her statement against him. The only word he received from school administrators during this period was a warning e-mail from Cowan, in October. One day Sterrett was walking with a friend who was putting his bike away at Sterrett’s old dorm. CB saw him near her residence and contacted Cowan, who informed Sterrett that the visit gave an appearance of “retaliatory contact.” He replied to Cowan and said it was troubling that his mere presence near a residence hall was considered an act of impropriety and asked that the investigation be finished “as quickly and compassionately as possible for everyone involved.”
On November 9, 2012, Sterrett was given a one-page document titled “Summary of Witness Testimony and Review of Other Evidence.” It consisted primarily of summaries of statements from anonymous witnesses. For example, it stated: “Two witnesses stated the Complainant reported to them that she tried to push the Respondent off her.” (CB didn’t know who these two witnesses were. She confirmed in her deposition that in her original statement to Cowan, she never said that she had tried to push Sterrett off her.) It also stated: “[A] witness reported that the Respondent told them that he engaged in penetration with the Complainant and ‘she was saying ‘no,’ and that it was just—it was ‘just like a second,’ and then he stopped, and then the Complainant left.’ “(In her deposition, CB acknowledged this was not how their sexual encounter transpired, although she maintained that at some point she said “no.”)
The document made clear to Sterrett that CB was claiming that she had said “no” during their encounter. He put together a lengthy rebuttal. Of CB’s claim, he wrote, “I cannot state it more clearly that this is untrue. I asked her if she wanted to have sex; she said ‘yes.’” (CB’s assertion was also challenged later by an affidavit sworn on Sterrett’s behalf by his freshman-year roommate, the one in the upper bunk. The roommate said that he saw CB get into Sterrett’s bed of her own volition and that his bed and Sterrett’s were so close that he would have heard if she had exclaimed “no” or “stop.” He stated that he was annoyed that their sex was keeping him awake and that as a friend of both he would have intervened if he felt something untoward was happening.)
Sterrett’s rebuttal also noted that Cowan’s document failed to mention the role CB’s mother played in bringing the accusation against him after she found her daughter’s diary. CB’s roommate, LC, in an affidavit sworn on behalf of Sterrett, said that over the summer CB’s mother had called her repeatedly warning her not to talk to Sterrett and to take CB’s side in all proceedings. LC stated that she never saw any change in CB’s behavior from the time of the alleged assault until the end of freshman year. But, she said, CB’s personality changed dramatically after her mother found her diary and the fall semester began. In her affidavit, LC said it pained her to speak against her friend, but she stated: “It is my belief, based on my personal observations and conversations with CB, that it is possible CB manufactured a story about a sexual assault in response to the conflict CB described occurring between her and her mother in the summer of 2012.”
On November 30, Sterrett received Cowan’s final “Sexual Misconduct Investigation Report.” His lawsuit states that the final report failed to take note of anything he had written in his rebuttal. The final report was longer than Cowan’s previous one and included further allegations that either CB herself did not corroborate or appeared unsupported by the available evidence. For example, it stated: “The Complainant framed the events in question as a sexual assault to witnesses the day following the event.” In her deposition, CB acknowledged that she didn’t do that, that in fact she’d never used the words “sexual assault” to describe what happened. The report said that Sterrett’s roommate was asleep during the entire sexual encounter. This was contradicted by the time-stamped Facebook message complaining that he was being kept awake.
The report also said that Sterrett had confessed to his roommate that he’d had a nonconsensual encounter with CB. When Cowan interviewed the roommate—who says she never told him the purpose of her investigation—he had mentioned that Sterrett said he regretted the encounter with CB. In Cowan’s report, that statement is described as a confession of sexual violation. But as the roommate clarified in his affidavit, Sterrett was not expressing “that he had done anything morally or legally or ethically wrong.” He was expressing regret for sleeping with someone in their group of friends.
The final report came to this conclusion: “[I]t is determined that the Respondent engaged in sexual intercourse with the Complainant without her consent and that that activity is so severe as to create a hostile environment.” His punishment was that he was suspended from college until July 2016—after CB graduated. In order for the university to consider reinstating him, he would have to agree that he had engaged in sexual misconduct. Wheth
er or not he returned, the finding would stay on his permanent record. Sterrett’s lawsuit says a university official acknowledged to him that these sanctions would “limit his educational, employment and career opportunities.”
With the help of a lawyer, Sterrett filed an appeal to the Office of Student Conflict Resolution. He included affidavits from classmates who said their words had been misconstrued and even falsified, and included the statement by Sterrett’s roommate that CB was a willing participant and that the roommate would have heard and intervened if CB had said no. The university’s response was to stand by its finding that Sterrett was responsible for sexual misconduct but to change the reason. Now Cowan issued an addendum stating that Sterrett had committed sexual misconduct because CB was too drunk to consent. (In her deposition, CB acknowledged that while she had been drinking, she was not incapacitated.)
Upholding the finding that he committed sexual misconduct required Sterrett to leave the university. But he had already decided not to return to school after winter break of his sophomore year. His lawyer explained in an e-mail that Sterrett felt the restrictions put on his movements in order to avoid running into CB—he could be expelled if she saw him and felt his presence was “retaliatory”—made it impossible for him to be at school. Sterrett filed another appeal, this one to Michigan’s university Appeals Board. In July 2013, it upheld the sexual misconduct finding, though it agreed to place Sterrett on disciplinary probation instead of suspension. The probation, however, came with onerous conditions, according to his lawyer: He would now be barred from any university housing and was prohibited from enrolling in any class in which CB was enrolled (and thus prohibited from registering and enrolling in classes until CB had finalized her schedule). He declined to return.
In April of this year, Sterrett filed suit against the university. The suit states that the public university violated his Fourteenth Amendment rights of due process and that Michigan contravened its own procedures for disciplinary hearings, which call for written notice of allegations against a student, sufficient time to prepare for an arbitration or other meeting (Sterrett says there was no arbitration or meeting), knowledge of the names of witnesses, the opportunity to pose questions to the complainant or other witnesses, and more. As a result of these violations, his suit says, he was subjected to a process that was “capricious, reckless, incomplete, [and] lacked fundamental fairness.”
Michigan has asked the United States District Court for the Eastern District of Michigan to dismiss Sterrett’s suit. Its motion to dismiss outlines the university’s version of events. Michigan asserts Sterrett was given fair notice of the charges against him, citing the fact that Sterrett’s own suit stated that he “gleaned” that he was being accused of sexual assault from his Skype interrogation. The motion states that Sterrett was given several opportunities to file his rebuttals and appeals, concluding, “That’s not lack of due process. It’s abundant process.” It also noted that Sterrett decided to file a lawsuit rather than return to the university under the sanctions and restrictions it offered. The statement issued by CB’s lawyer noted, “The University of Michigan thoroughly investigated the matter. Plaintiff and my client each had an opportunity to present evidence. Plaintiff was found responsible; he appealed that decision, and it was upheld.”
I spoke to Sterrett’s lawyer, Deborah L. Gordon. She said that like many similarly accused young men, Sterrett believed that once a responsible investigation was undertaken, everything would be straightened out. “He had no idea he was on his way out no matter what he said or what the facts were,” she said. She hopes to get the case to a jury, but she says the university is making every legal effort to delay. Sterrett should be graduating from college next spring, but the sexual misconduct charge against him has made it virtually impossible for him to be accepted as a transfer student elsewhere. He was accepted to one well-regarded university, but the offer was rescinded when the school heard of his disciplinary finding at Michigan. Now twenty-two, he’s hoping that if his suit is successful, he will be able to finish his education—some day.
4. The Numbers
One campus rape is one too many. But the severe new policies championed by the White House, the Department of Education, and members of Congress are responding to the idea that colleges are in the grips of an epidemic—and the studies suggesting this epidemic don’t hold up to scrutiny. Bad policy is being made on the back of problematic research and will continue to be unless we bring some healthy skepticism to the hard work of putting a number on the prevalence of campus rape.
It is exceedingly difficult to get a numerical handle on a crime that is usually committed in private and the victims of which—all the studies agree—frequently decline to report. A further complication is that because researchers are asking about intimate subjects, there is no consensus on the best way to phrase sensitive questions in order to get the most accurate answers. A 2008 National Institute of Justice paper on campus sexual assault explained some of the challenges: “Unfortunately, researchers have been unable to determine the precise incidence of sexual assault on American campuses because the incidence found depends on how the questions are worded and the context of the survey.” Take the National Crime Victimization Survey, the nationally representative sample conducted by the federal government to find rates of reported and unreported crime. For the years 1995 to 2011, as the University of Colorado Denver’s Rennison explained to me, it found that an estimated 0.8 percent of noncollege females age eighteen to twenty-four revealed that they were victims of threatened, attempted, or completed rape/sexual assault. Of the college females that age during that same time period, approximately 0.6 percent reported they experienced such attempted or completed crime.
That finding diverges wildly from the notion that one in five college women will be sexually assaulted by the time they graduate. That’s the number most often used to suggest there is overwhelming sexual violence on America’s college campuses. It comes from a 2007 study funded by the National Institute of Justice, called the “Campus Sexual Assault Study,” or CSA. (I cited it last year in a story on campus drinking and sexual assault.) The study asked 5,466 female college students at two public universities, one in the Midwest and one in the South, to answer an online survey about their experiences with sexual assault. The survey defined sexual assault as everything from nonconsensual sexual intercourse to such unwanted activities as “forced kissing,” “fondling,” and “rubbing up against you in a sexual way, even if it is over your clothes.”
There are approximately 12 million female college students in the United States (There are about 9 million males.) I asked the lead author of the study, Christopher Krebs, whether the CSA represents the experience of those millions of female students. His answer was unequivocal: “We don’t think one in five is a nationally representative statistic.” It couldn’t be, he said, because his team sampled only two schools. “In no way does that make our results nationally representative,” Krebs said. And yet President Obama used this number to make the case for his sweeping changes in national policy.
The Sexual Victimization of College Women, a 2000 study commissioned by the U.S. Department of Justice, is the basis for another widely cited statistic, even grimmer than the finding of CSA: that one in four college women will be raped. (An activist organization, One in Four, takes its name from the finding.) The study itself, however, found a completed rape rate among its respondents of 1.7 percent. How does a study that finds less than 2 percent of college women in a given year are raped become a 25 percent likelihood? In addition to the 1.7 percent of victims of completed rape, the survey found that another 1.1 percent experienced attempted rape. As the authors wrote, “One might conclude that the risk of rape victimization for college women is not high; ‘only’ about 1 in 36 college women (2.8 percent) experience a completed rape or attempted rape in an academic year.”
But the authors go on to make several assumptions that ratchet up the risk. The study was carried out duri
ng the spring and asked women to describe any assaults experienced during that academic year. The researchers decided to double the numbers they received from their subjects, in order to extrapolate their findings over an entire calendar year even as they acknowledged that this was “problematic,” as students rarely attend school for twelve months. That calculation brought the incidence figure to nearly 5 percent. Although college is designed to be a four-year experience, the authors note that it takes students “an average” of five years, so they then multiplied their newly-arrived-at 5 percent of student victims by five years, and thus they conclude: “The percentage of completed or attempted rape victimization among women in higher educational institutions might climb to between one-fifth and one-quarter.”
In a footnote, the authors acknowledge that asserting that one-quarter of college students “might” be raped is not based on actual evidence: “These projections are suggestive. To assess accurately the victimization risk for women throughout a college career, longitudinal research following a cohort of female students across time is needed.” The one-fifth to one-quarter assertion would mean that young American college women are raped at a rate similar to women in Congo, where rape has been used as a weapon of war.
No one disputes that only a percentage of sexual assaults get reported, but the studies that have tried to capture the incidence of unreported rape are miles apart. As Christopher Krebs observed, “Some [surveys] I think create high numbers that are difficult to defend. Some create artificially low numbers that are impossible to defend.” We do have hard numbers on actual reports of sexual assault on campus thanks to the Clery Act, the federal law that requires colleges to report their crime rates. But even these figures are controversial. Minuscule sexual assault numbers have long been a consistent feature of Clery Act reporting. Victim advocates say administrators deliberately suppress their numbers in order to make the schools look safer. (Unsurprisingly, schools deny this.) In July, the Washington Post published the Clery number for 2012: There were just over 3,900 forcible sexual offenses, with most schools reporting single or low double-digit numbers. (Under the Clery Act a “forcible sexual offense” does not require the use of actual physical force, it can simply be an act against someone’s will. Offenses include everything from rape to fondling.) Given the approximately 12 million female college students, that’s a reported sexual assault rate of 0.03 percent.
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