‘Our Strategy for Dealing With Rape on College Campuses Has Failed Abysmally.’

It’s the truth. And Jed
Rubenfeld, a professor of criminal law at Yale Law School, is
preaching it in the pages of The New York Times.

In a lengthy weekend op-ed, Rubenfeld argued that colleges deal
with rape foolishly when they hold due-process-free tribunals
that merely result in the expulsion of the accused. That’s both too
harsh a sentence for a student convicted under the shabby evidence
standard that colleges use and also too lenient a sentence for an
actual rapist—who is free to continue harassing other women.

Instead, colleges should always go to the police. The normal
criminal justice system is vastly better equipped to investigate
and adjudicate rape,
wrote Rubenfeld:

Moreover, sexual assault on campus should mean what it means in
the outside world and in courts of law. Otherwise, the concept of
sexual assault is trivialized, casting doubt on students courageous
enough to report an assault.

The college hearing process could then be integrated with law
enforcement. The new university procedures offer college rape
victims an appealing alternative to filing a complaint with the
police. According to a recent New York Times article, a “great
majority” of college students now choose to report incidents of
assault to their school, not the police, because of anonymity and
other perceived advantages.

But the danger is obvious. University proceedings may be
exacerbating the fundamental problem: the fact that almost no
college rapists are criminally punished — which they will never be
if the crimes are never reported to the police. Nationwide, the
Department of Justice states that about 35 percent of rapes and
sexual assaults were reported to the police in 2013. That’s not
enough, but it’s a lot better than the 5 percent reported by
college women.

Rubenfeld is also skeptical of university administrators’
attempts to redefine or codify consent definitions, and he cites
several examples of colleges that use misleading or flat-out wrong
standards. While nearly everyone accepts that all drunken sex is
not rape, some administrators maintain that consent is impossible
if alcohol has been consumed. That’s a ridiculous notion that
necessitates viewing all men as sexual initiators, even though the
decision to have sex is often impossible to trace so neatly to one
party or the other.

On the subject of drunk sex, Rubenfeld raises a point that

I have invoked many times recently about rape and the drinking
age. The relevant section:

A vast majority of college women’s rape claims involve alcohol.
Not long ago, 18-year-olds in many states could drink legally.
College-sponsored events could openly involve a keg, with security
officers on hand to ensure that things didn’t get out of hand.
Since 1984, when the federal government compelled states to adopt a
drinking age of 21, college alcohol policies have been a mockery.
Prohibition has driven alcohol into private spaces and house
parties, with schools largely turning a blind eye. When those
spaces and parties are male-dominated, it’s a recipe for sexual
predation. Such predation has been documented: Attending fraternity
parties makes women measurably more likely to be sexually
assaulted.

We need to stop pretending that the campus rape epidemic demands
an
infantilizing, legislatively-enforced re-education about
consent. College students are grown-ups; they don’t need college
administrators or the government to hold their hands while they ask
whether it’s okay to initiate each and every individual sex
act.

At the same time, we need to treat rape like a serious crime
deserving a full police investigation and trial. We should also
recognize that insane alcohol laws contribute to the problem and
aren’t worth defending. I join
Instapundit’s Glenn Reynolds in hoping the new Republican
Congress revisits them.