The next steps in the fight against campus rape
by Susan Estrich
June 19, 2014 01:34 AM | 640 views | 0 0 comments | 12 12 recommendations | email to a friend | print
The first time I ever went “online” to do a search on the “World Wide Web” (yes, we used to call it that), I figured I’d pick a subject I knew a lot about and see what was there. So I typed in the word “rape” — a subject I learned about the hard way many decades ago and have been teaching and writing about for the past 30 years.

To my surprise and horror, what popped up on my search were not sites aimed at providing resources or support for the victims of rape, but one horror story site after another about men wrongly accused of rape.

Now, I am not one of those who believe rape is such a serious crime that even innocence is no defense. I am the mother of a son, as well as a daughter. I have seen that rape can destroy the lives not only of its victims, but also of those who are wrongly accused. I am a law professor, as well as a victim. I am not willing to imprison the innocent lest the guilty go free.

That is why rape is a problem that colleges and universities must address.

I understand why many administrators would like to leave it to the criminal justice system.

But the criminal justice system doesn’t deal with shades of gray. It doesn’t deal with hazy memories. It demands proof beyond a reasonable doubt precisely because the punishment to be doled out is prison. All of which means that your garden-variety campus rape, involving too much alcohol and no weapons or beatings or witnesses, and competing accounts as to whether and when anyone said yes or no, is not going to lead to a successful prosecution.

That doesn’t mean the complainant was not really raped. It just means it cannot be proved to the satisfaction of the criminal justice system.

Colleges and universities deal with wrongdoing that does not amount to a prosecutable crime every day of the week — from stealing and cheating to taking food that doesn’t belong to you from the dorm fridge. We have honor codes and honor boards, faculty-student committees, teams of deans and resident advisers. How is it that we can do all of these things, but we can’t fairly determine whether one student has abused another?

We’ll get sued, more than one university lawyer has told me over the years. They don’t mean they’ll be sued by the victims who don’t get attention, but by those who are accused of rape and demand lawyers and due process and procedural protections before they are “branded” a rapist and their life destroyed. And they’re right. They will get sued — unless they do it right.

Doing it right means being clear at the outset about what kind of conduct is expected of students. Doing it right also means providing both the accuser and the accused with advocates to help them navigate the process and assuring that the process itself is fair, that there is a meaningful opportunity to present the evidence and to seek review of any adverse ruling.

Thanks to the work of activists and the involvement of the administration, the heat is on colleges and universities at least to report accurately the number of assaults on campus, if not to take action to prevent and punish them. But beware of the backlash.

There is no evidence that women lie about rape any more than people lie about every other crime, and there’s much evidence that the larger problem is underreporting. But there are crazy people in the world, and one of them will report a rape that didn’t happen. It will get more attention than most real rapes do, and we had best be ready. The backlash will be coming.

Susan Estrich is a law professor in Southern California and managed the 1988 presidential campaign of Michael Dukakis.

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