The Campus Rape Frenzy: The Attack On Due Process At America's Universities, co-authored by KC Johnson and Stuart Taylor, Jr., will be released on Tuesday, chronicling how America's college campuses have developed kangaroo court-like systems that trample on the due process rights of those accused of sexual assault.
Below is the Daily Wire's conversation with Taylor about just how heinous these systems are.
What prompted you to write this book?
Well, the book was originally KC's idea. We had collaborated on a book that I started on the Duke lacrosse case, which came out in 2007, and then he has followed these kind of issues very closely ever since then. I have followed them far less closely and oh, gosh, I don't know, maybe a year and a half ago when he was doing a lot of writing on the campus sexual assault frenzy (as we call it in our title and the attack on due process for college students subtitle), I was kind of following it from a distance and doing an occasional piece and KC was doing a lot, and he said, "I think it's time for another book." And I thought it was time, so that's how it got started.
So how did this whole campus rape frenzy culture come about? How did it all start?
The frenzy goes back, way back, to at least the 70s when Catherine MacKinnon and other radical feminist law professors started basically saying that almost all sex or even all sex that a women regrets is rape and started indoctrinating people in Women's Studies classes and so forth in that view. Some of the more radical bureaucrats in the Clinton administration kind of had that view and pushed it a little bit but not very far...and on the campuses there's been kind of a rape frenzy going on for decades.
But what it put into high gear is the Obama administration's decision on April 4, 19, 2011–it was pretty specific timing–to make federal case out of this, what we call the campus rape frenzy. They basically commanded in what I think is a blatantly illegal so-called guidance document–blatantly illegal for several reasons, including that they didn't put it through the notice and comment rulemaking that's necessary to make it a federal regulation...they commanded more than 7,000 colleges in the country–all those that receive federal money–to revolutionize their disciplinary rules for sexual assault allegations and really more broadly all sexual misconduct allegations which include a lot of conduct that's not illegal. It was about a 21-page letter and had about five very specific requirements, you must do this, you must do that, you must do the other thing, and that's what really got it into high gear, particularly because it was led from the White House by Vice-President [Joe] Biden and by President [Barack] Obama who were, among other things, spewing highly misleading rape statistics about a supposed one-in-five sexual assault rate for women on campus, which is a completely bogus statistic based on fraudulent, if at least misleading, studies. They pushed it really hard, and they not only issued these commands to the colleges–and the colleges all basically saluted and said, 'What else do you want us to do?' instead of challenging them–they basically threatened all the colleges that didn't do exactly what they wanted and didn't kick out as many as people as the Obama administration thought they should kick out as sexual assaulters. They threatened them all with ruinous publicity by putting them on lists of colleges under investigation; the media would handily comply by making a big deal of that as if they had been shown to have done something wrong when they haven't done anything wrong, and also threatening them with ruinous financial penalties in the form of taking away their financial money.
How exactly are the one-in-four, one-in-five statistics misleading and what are some of the other more egregious statistics that perpetuate the myth of campus rape culture?
Well the one-in-four, one-in-five–and it's usually the president says one-in-five so I'll stick with that for now–there are reliable, fairly reliable statistics on rape rates and in particular campus rape rates. They're put out by the Justice Department's Bureau of Justice Statistics and have been for many years all kinds of crime statistics. They did a very comprehensive survey with a very large sample, and they've done a couple of subreports on the campus rape rates and they say it's about one-in-40 women, they say–it's probably more than one-in-50 if you adjust it a little bit for variables such as vacation time–they say the rate's about one-in-40 women who go to college are sexually assaulted–not every year, one-in-40 during their four or five years–and about one in a hundred, you know about fewer than about one in a hundred, about fewer than half of those are actually raped. Every, you know, sexual assault includes a tap on the butt, for example. So those are the reliable statistics.
So how do people get to one-in-five? There are a whole bunch of organizations including prestigious ones like the Washington Post, Pew survey and like the Association for American Universities surveys that make their surveys misleading in three ways. One, they have very small response rates, and the people who are motivated to respond are the ones who think they have been assaulted or raped or their friends have, you know so that loads the dice and gives you a high yes rate on whatever the question is. Two, the questions are highly misleading. They never ask these respondents, these women, "Have you been raped?" They never ask, "Have you been sexually assaulted?" because they know from historical experience that the answers will give you a very low rate, probably as low or lower than the one-in-40 that I mentioned earlier. They ask questions like, "Have you ever had sex with someone when you were intoxicated?" And if the answer is yes, they check that as a rape. "Have you ever had sex with somebody when you didn't really want to," whether or not you told him you didn't really want to. If the answer to that is yes, they check it as a rape, and so on down the list...they include a whole bunch of things that neither the law nor common understanding would classify as rape or sexual assault but these surveys do; they classify it that way. There are other ways in which they're misleading but those are the most obvious ones.
Explain then how these campus investigations into students accused of sexual assault completely violate due process rights.
Right. There's an argument of course about exactly what the due process rights should be and are in this kind of context. They're not identical to a criminal case; they're not quite as strong as a criminal case. So, for example, we don't claim that there ought to be a requirement of proof of guilt beyond a reasonable doubt, which would be true in a criminal case. If it's a campus proceeding, we do say it ought to be something closer to proof by clear and convincing evidence, which is a familiar category in the law and more than proof by a mere preponderance of the evidence, which means almost a toss-up with a slight leaning toward, "Yeah, we think he's probably guilty, we're not sure." So one way in which they've degraded due process is they've lowered the burden of proof.
Another way is they've put a virtual ban on cross-examining accusers. That's probably the worst thing they've done because, because, as the Supreme Court has said many times, cross-examination is the greatest engine of truth that the legal process has ever come up with, and if you're talking about not being able to examine an accuser, particularly in a context where it's often he said, she said and there is no conclusive evidence other than which of them you believe, and you take away the right to discredit the accuser, you've really loaded the dice toward bias.
Other things they've done are they've required colleges to allow accusers to appeal if the initial decision-making body, or panel of students or faculty or whatever decides that the guy is innocent, then the accuser gets to appeal. That's called double jeopardy in the criminal process, and they've required that there be punishment, which they called interim measures, before there's been any investigation. So, for example, if the accuser and the accused are living in the same dorms, the minute she's files a complaint they order him to move out of the dorm and go somewhere else, which is often less, you know, he doesn't want to go.
And over the whole mess of specifics I'm talking about, the colleges know that these bureaucrats who are ideologues and near fanatics in the office of civil rights of the Education Department under Obama, they know perfectly well if they don't act like they're really, really tough on accused sexual assaulters, if they act like, "Well, gee, let's make sure we don't punish innocent people," then they'll get hammered by the federal government, and there are two ways in which the federal government hammers them, as they publicize it and make them sound in the media as though they're hotbeds of sexual assault in College X or College Y, and they threaten them by taking away their federal money.
What do you think are the most egregious examples of universities trampling on the rights of the accused?
There have been over 100 lawsuits by accused students who say they've been trampled and our book discusses 40 or 50 of them. The one we have in the introduction has got a special twist to it, which is that the facts show that the woman who accused the guy of sexual assault was actually the sexual assaulter and the guy was the victim and she twisted it around. But it was Amherst College, where what happened was that a woman who seemed to like to have a lot of sex seduced a guy, (Well, they were making out in front of a bunch of people who said, "Why don't you go to a room somewhere?" and so she took him to her room...and he was passed out drunk.) She was slightly tipsy by her own description. She gave him oral sex, which he doesn't remember at all, because he was either passed out or close to passed out drunk and then she sent him away and she summoned another guy whom she had been flirting with earlier in the evening and she had sex with him too. She said, "Bring your military-trained bod over here and entertain me" was her quote. This was in a text message. This is why we know what happened; she did a bunch of text messages that were later recovered.
And then after all this happened, she began to worry about the first guy whom she sexually assaulted, her roommate's boyfriend. Her roommate was away, but she realized that word was going to get around and people were going to be mad at her for seducing her roommate's boyfriend. So, she started telling people that he actually sexually assaulted her. She also fell in with the campus anti-rape group and a bunch of ideologues, and many, many, many months later–I think it was maybe a year and a half later–she got around to telling the college that he'd sexually assaulted her. They got around to having this ridiculous kangaroo court during which she was incoherent and the people running the case were feminist ideologues and they kicked him out, and when he later pulled together all these text messages and proved conclusively that he was innocent, Amherst College told him too late, we're not gonna reopen the case. There's one.
Which universities do you think are the worst when it comes to these kangaroo court systems and so forth?
Well we're talking about thousands of universities that have them, and you know even universities where the people that run the universities have enough sense to realize that it's a terrible system, they're terrified of the federal government, so they do what the federal government tells them. A lot of universities are all too eager to do this for ideological reasons. Among those that stand out as worst are Yale, Brown and gosh a bunch of others...but Yale and Brown have over and over and over again had outrageously biased one-sided proceedings, sometimes perhaps because the federal government was leaning on them, but other times because that's just what they do.
One example is that last fall, Yale kicked out its basketball captain in the middle of one of the greatest seasons they've ever had on a ridiculous allegation. Even if you take the woman's word for what happened it's ridiculous, and she didn't want to make a complaint. Yale sort of forced her to make a complaint in order to make themselves look like, "Oh, boy, we're really being tough on rape, we kicked out the basketball captain." It was an outrage, a travesty, and the people at Yale that did this should all be fired, but they won't be because that's how Yale operates.
One of the more chilling aspects, at least to me, was how cavalier some people were about the prospect of innocents getting expelled from college and being accused of sexual assault as a result of that kangaroo court system. But as you say in the book, it is actually a very traumatic experience for somebody that's innocent to be kicked off of campus and accused of sexual assault.
Yes, and we do describe that and we interviewed several, a lot of parents, a lot of moms and some dads and a couple of the young men, the young men really don't want to talk. The guys that have been traumatized don't want to talk most of the time to even someone like me who is sympathetic to them, just because they don't want their names to get in print, they don't want to relive the experience, but we learned a lot from the couple we talked to and also from all the parents we talked to–obviously lived through it with their sons–and there are kids who have done suicide attempts, there may have been some...suicides, there's a lot of post traumatic stress syndrome, there's a lot of depression, there's a lot of guys who just can't get their lives back in gear after they've been kicked out of college as sex criminals basically and then rejected by other colleges because word got around after they've been smeared all over their campuses as sex criminals by feminist activists.
And it's, you know what, it's hauntingly reminiscent of, we've all of heard cases, stories–and they're true stories, some of them–of women being terribly traumatized for many years, maybe for the rest of their lives, by having been raped. Well, the trauma seems to keep quite similar when it's experienced by a male who's been wrongfully accused. Obviously, nothing's been done to him physically, but in terms of the psychological harms, I think the situations are quite similar and they're really, really horrible. The people who kind of, you know, wave it aside as, "Oh, well, the guy can just pick himself off and get on with his life." No, he can't. It's horribly traumatizing.
So you talk about the federal government obviously playing a big role in establishing these type of kangaroo court systems; what about states? Because it seems like in your book you talked about state legislatures kind of, you know, abetting this process.
Yeah, it varies from state to state. The two worst–and there are a couple of others–are California and New York, non-coincidentally two huge blue states, and both of them adopted what are called affirmative consent laws, rules, for college students and only for college students, college discipline and only college discipline. These don't apply to anyone else. And affirmative consent basically means that there's a presumption that every sex act was a crime on the part of the male unless, you know, he can prove that every step of the way he explicitly asked for permission, or at least implicitly. So, "May I touch you here? May I touch you there? May I touch you in the other"– if you forgot to say "May I touch you in the other place" and you touched her in the other place, bang! That's a sexual assault under these laws...and the hypocrisy of it is emphasized by the fact that this is only for college students and only for college women. If they think it protects women–which it doesn't–but they're certainly not bothering even doing it for poor young women who can't go to college. And if they think that the guys ought to be punished, they're certainly not punishing guys outside of college. They're certainly not punishing, for example, members of the California and New York state legislature who might be charged with rape under these laws. They're just posturing and trying to make themselves look good to the extreme feminist activists by setting up young college guys. I think some of them may come to their senses when some of their own sons are railroaded out of college but it may take awhile for that to sink in.
As a whole, would you say that the courts have been favorable toward the accused or more toward the universities?
Courts have been all over the lot, and there isn't yet, I think, a clear pattern. There have been a lot of decisions favorable to accused, there have been a significant number favorable to the universities, and the ones favorable to the universities, some of them are really hard to understand. The California appeals court, for example, in a case involving the University of California in San Diego, the judges, when they were hearing the argument in the case, they were hearing how the university had rigged the process to nail the guy. One of the judges said basically, it looks like a kangaroo court to me, and the other judges agreed. Then, a little while later, they render their decision and they uphold what the university did, basically saying well, we'll defer to the university. And there are courts that did that. There have also been some very good decisions by Judge Saylor, a federal district judge for example, in a case involving Brandeis–he's in the northeast–there's one by a federal appeals court in the northeast, including three Democratic appointees, which is noteworthy, that struck a good blow for fairness, one by Judge Tim Ellis, a personal friend of mine actually in the northern district of Virginia, really knocking down George Mason University's unfair process...what the world really needs is one of these cases to get to the Supreme Court and for the Supreme Court to set a standard that protects due process, but that hasn't happened yet.
Do you think any of this will change at all under the new Trump administration or no?
I hope that a lot of it will change; in particular I hope that the Trump administration will wipe off the books all of the illegal orders the Obama administration has been issuing to the universities about the procedures–you know, you must have a low burden of proof, you may not allow cross-examination–the easy part would be to wipe those out. That could be done with a stroke of a pen because unlike some federal regulations, these ones weren't adopted through a process that makes it hard to wipe 'em out. These can be done easily. The harder and longer term task will be that even if all that is done, and even if, you know, Trump does all the obvious things that it can to set things right–which is not assured, you know, who knows whether they'll do that, they haven't shown their hand clearly yet–but even if they do the right things, there will still be huge bureaucracies, sex bureaucrats, at all the universities around the country, there will be bad rules that have been adopted under the lash of the Obama administration, but Trump revoking the Obama administration's orders doesn't make the bad rules go away. They are still there until people–students, faculty, student governments, individually state legislatures in good states–until they change the rules. So there's a lot of damage that's been done, long term damage–including the presumption of guilt that's widespread in the university culture now–lot of damage that will take a long time and a lot of effort by a lot of people to repair even if the Trump administration gets it started, which I hope they will.
So what kind of advice would you give to students or prospective students and parents when it comes to dealing with this stuff or how to avoid this kind of stuff in general if they're on a college campus?
Yeah, we have some suggestions on that at the end of the book. For example, student governments tend to be dominated by politically-correct leftist people. They're not particularly representative of the student body as a whole, but they are the ones who are motivated to get into student government and one thing we recommend is that students who would rather have fairness and who would rather not be governed by far-left radicals should become active and get into the student governments. Boards of trustees, parents, alumni, donors and other students, state legislators, members of Congress, and citizens should all realize that the universities–and that's not just in the sex area, it's in the politically correct censorship of free speech and the like–the universities are now dominated by far-left authoritarian radicals, and it's going to take a long time, if not forever, to set that straight.
And by the way, I say this not as a conservative, but as a moderate who voted for President Obama twice, for example–and I sort of regret it, at least the second time–but it sounds like it's coming from a far-right radical when you hear what I'm saying because it's so uncommon to see it in the national media. But every serious civil libertarian I know and every feminist I know and respect–and there are a lot of 'em–agrees basically with what I'm saying about this.
Is there anything else you'd like to add?
Among the attacks on Betsy DeVos, the nominee for Education Secretary, is Senator Bob Casey of Pennsylvania and some other Democrats have attacked her because she gave, I think, $25,000 in contributions over several years to an organization called the Foundation for Individual Rights in Education. The acronym is FIRE. And Casey attacked her for this, said that's a radical group, they're trying to take away the rights for victims of sexual assault, and I think his spokesman said they were far-right, which is absurd and it is a libel, really, for them to take a group that is in fact a preeminent civil liberties group for campuses, at least in the country, one that's run by a liberal that protects the rights of liberals and conservatives, Christians, Muslims and across the board, free speech rights, due process rights, and now the sexual assault industry is attacking them as though they were some bunch of lunatics. The lunatics are the people doing the attacking, not the admirable people at the Foundation for Individual Rights in Education, and Betsy DeVos, whatever her other qualities, should be proud of her contributions to that group.
Follow Aaron Bandler on Twitter @bandlersbanter.