The Campus Rape Frenzy: The Attack on Due Process at America's Universities

Praise for The Campus Rape Frenzy

This book is a must read for every feminist—and everyone else—who cares about civil liberties. It of course recognizes that campuses must vigorously protect actual and potential sexual assault victims. But it demonstrates vividly and readably that the too-prevalent secretive campus star chambers are the worst of both worlds: innocent students are too easily railroaded out of college, effectively destroying their educational and career opportunities; but actual rapists can at most [only] be expelled, leaving them free to prey on further victims beyond the campus. That is why many advocates of victims’ rights, as well as advocates of the rights of the accused, concur that the fairest and most effective way to handle campus sexual assault cases is through the criminal justice system. The book also highlights how the federal Department of Education has abused its power by bypassing lawful rule-making processes and strong-arming campuses to abandon the presumption of innocence and due process rights of students accused of sexual assault and harassment.

—Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School, and Immediate Past President, American Civil Liberties Union (1991–2008)

In this masterful account, Johnson and Taylor examine in detail how President Obama’s Education Department—promulgating regulations beyond its statutory authority, invoking erroneous data, and fanning the false narrative of a ‘rape culture’ on college campuses—has created a regime of kangaroo justice. Male students accused of sexual misconduct are found guilty, and their lives destroyed, by campus panels operating without any semblance of due process and all too frequently on the basis of grossly inadequate information. Your blood will boil as the authors meticulously examine scores of cases where, in the name of political correctness, male students are sacrificed to the mob, with academic leaders happily serving as the hangmen.

—William P. Barr, former Attorney General of the United States (1991–1993)

A sterling and incisive work, written with passion and wit, that goes to the heart of the most insidious assault on justice and reason ever to afflict the nation’s campuses.

—Dorothy Rabinowitz, Wall Street Journal editorial board member and author, winner of the 2001 Pulitzer Prize for Commentary

For those who love justice and who cherish our daughters and our sons, this is an indispensable book. As the authors demonstrate with compelling evidence and rigorous analysis, civilization’s long evolution of fairness and due process is ending on the very campuses where we educate our future leaders. As Johnson and Taylor argue convincingly, the unspeakable crime of actual rape is better dealt with by law enforcement and the courts than by bigoted campus zealots who care more about symbolism than about truth and actual consequences or by careerists who care more about athletic programs than about the safety of students. Inquisitions and Star Chambers are the order of the day at our colleges and universities, and this stunning book is a desperately needed critique of that catastrophe and a guide to how to end the nightmare of deliberate and dysfunctional injustice.

—Alan Charles Kors, Henry Charles Lea Professor of History, University of Pennsylvania

© 2017, 2018 by KC Johnson and Stuart Taylor, Jr.

Epilogue © 2018 by KC Johnson and Stuart Taylor, Jr.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Encounter Books, 900 Broadway, Suite 601, New York, New York, 10003.

First American edition published in 2017 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonprofit, tax exempt corporation.

Encounter Books website address: www.encounterbooks.com

The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.48–1992 (R 1997) (Permanence of Paper).

First paperback edition published in 2018.

THE LIBRARY OF CONGRESS HAS CATALOGUED

THE HARDCOVER EDITION AS FOLLOWS:

Names: Johnson, Robert David, 1967– author. | Taylor, Stuart, 1948– author.

Title: The campus rape frenzy: the attack on due process at America’s universities / by KC Johnson and Stuart Taylor, Jr.

Description: New York: Encounter Books, 2017. | Includes bibliographical references and index.

Identifiers: LCCN 2016019693 (print) | LCCN 2016033441 (ebook) | ISBN 9781594039881 (Ebook)

Subjects: LCSH: Rape in universities and colleges—United States. Rape in universities and colleges—Political aspects—United States. | Presumption of innocence—United States. | Due process of law—United States. | BISAC: HISTORY / United States /21st Century. | LAW / Civil Rights. | LAW / Educational Law & Legislation.

Classification: LCC LB2345.3.R37 J65 2017 (print) | LCC LB2345.3.R37 (ebook) | DDC 371.7/82—dc23

LC record available at https://lccn.loc.gov/2016019693

Interior page design and composition: BooksByBruce.com

To my sisters Gwennie and Clare, my wife Sally,

and our daughters Sarah and Molly

—Stuart Taylor, Jr.

In memory of my mother, Susan McNamara Johnson

—KC Johnson

CONTENTS

Preface

Introduction

1The Foundations of the Frenzy

2Misleading through Statistics

3The Realities of Rape Culture

4Denying Due Process

5Media Malpractice

6The Witch-Hunt Mentality

7College Athletes: Myths and Realities

8The Witch Hunt Intensifies

9From Campus to Criminal Law

10A New Generation’s Contempt for Civil Liberties

Conclusion

Epilogue

Acknowledgments

Notes

Index

PREFACE

A decade ago, once our book Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case had been published, we hoped that politicians, journalists, and academics alike would come to grips with a central lesson of the Duke lacrosse case: that for institutional, ideological, and pedagogical reasons, college faculties and administrations had become dangerously hostile to due process whenever students were accused of sexual assault. But instead, a powerful movement has made it even less likely that colleges and universities—and their students—will judge sexual assault allegations fairly.

We do not seek to minimize the scourge of sexual assault. But amid massive attention to the plight of students who are victims of sexual assault, the fate of students who have been wrongfully accused of sexual assault has been virtually ignored. This book seeks to remedy the problem, by bringing readers inside a system on our nation’s campuses in which accused students effectively have to prove their innocence, often under procedures that deny them any meaningful opportunity to do so.

INTRODUCTION

In the early morning of February 5, 2012, a student named Alice Stanton* met Michael Cheng,* her roommate’s boyfriend, in a dormitory common area of Massachusetts’ Amherst College.¹ After the two started making out, another student remarked that they should get a room. Cheng, who was extremely intoxicated, went with Stanton (who later said she had been tipsy) back to her room, where Stanton performed oral sex on him. Her roommate, Cheng’s girlfriend, was out of town for the weekend.²

As soon as Cheng left her room, a panicked Stanton texted a male friend (her dorm’s resident counselor): Ohmygod I jus did something so fuckig stupid. In subsequent texts to this friend, she implied that she had initiated the sexual contact with Cheng and was worried about the fallout. Fellow students who had seen Cheng and her leave the dorm common area, she complained, were not gonna believe that we left to NOT fuck. She floated a cover story about their reason for leaving but worried that Cheng was too drunk to make a good lie out of shit.

Stanton soon turned her attention to other matters. Earlier that evening, before her encounter with Cheng, she had been flirtatiously texting another male student. Praising his military trained bod, she had advised him that she had her room to herself for the weekend if you wanted to come over and entertain me. Now she texted him again. He asked her why her texts had stopped for 45 minutes (the time during which she had been with Cheng). She replied that she had been engaged in sophomore floor bonding, since I thought you were a lost cause.

At 2:30 a.m., the male student texted Stanton to say that he was coming over. Stanton relayed this information to her friend, who responded encouragingly: Double your pleasure, double your fun. Shortly after her new guest arrived, Stanton texted the same friend again, complaining, OK. Why is he just talking to me? . . . Like, hot girl in a slutty dress. Make. Your. Move. YEAH. She followed up with the results: Ohmygod action did not happen til 5 in the fucking morning.

The next morning, Stanton realized her mistake: I am a shitty friend, she conceded. After her texting pal promised not to tell anyone about the episode with Cheng, Stanton resolved that no one can know, because if anybody knew, her roommate would literally never speak to me again. She tried to rationalize her behavior: We didn’t technicallyyyy have sex. So that’s not quiteeee as bad? Her friend wasn’t convinced. Hahahaha. Technically? When Stanton countered that she wanted the madness to stop, her friend—far more presciently than he ever could have known—responded, The madness hasn’t even begun.

Stanton’s behavior soon was no secret at Amherst, a residential college with fewer than 2,000 students. As a result, Cheng and his girlfriend broke up. And Stanton lost her group of friends, as one of the former friends later recalled.

There are countless such casual hookups on college campuses every year. If this one had occurred a few years before, few people would have heard about it. But Alice Stanton’s view of her adventures that night would become swept up in a chain of events that the Obama administration had set in motion—a chain that would, almost two years after Stanton’s encounter with Cheng, upend his life.

In an unprecedented initiative, in 2011 the federal government ordered almost all universities to institute revolutionary changes in their disciplinary policies in order to counter what the Obama administration described as an epidemic of rape and other sexual assaults on college campuses. (We henceforth use sexual assault as inclusive of rape.) These changes dramatically weakened accused students’ rights to fair proceedings.

As the initial effects of these commands swept across the country, Amherst, like many other colleges, was in the grip of a moral panic about students’ sexual behavior. What would previously have been a regrettable sexual encounter transformed into actionable sexual misconduct. In this frenzy, Michael Cheng would become a victim.

In October 2012, eight months after Stanton and Cheng had oral sex, a former Amherst undergraduate named Angie Epifano penned a column in the campus newspaper, The Amherst Student. She alleged that college employees had treated her callously after she told them that a fellow student had raped her.³ She had neither complained to police nor asked Amherst to discipline the alleged rapist. Nor did she make public any evidence supporting her accusation. But she painted a damning portrait of how three Amherst officials reacted to her assertions that she had been raped.

She claimed that the college’s sexual assault counselor, Gretchen Krull, had told her, You have to forgive and forget. And that—after she threatened to kill herself, and had been involuntarily committed to an on-campus psychiatric facility for observation—an Amherst doctor had said, I really don’t think that a school like Amherst would allow you to be raped. And that a dean had told her, after her request to study in South Africa had been denied (apparently due to her mental state), that she would be better off avoiding those horrible third-world conditions: diseases. . . . huts . . . lions!⁴

Were these things actually said? That seems unlikely, but there was no indication that The Amherst Student gave Krull, the doctor, or the dean the chance to respond to Epifano’s narrative.

The Amherst administration and faculty accepted Epifano’s October 2012 account on faith. The college canceled a full day’s classes for a teach-in about Epifano’s complaints. President Biddy Martin proclaimed that the administration’s responses to reports have left survivors feeling that they were badly served and must change immediately.⁵ Krull left her job the next day; officials would not say whether she had resigned or been fired. Campus activists expressed regret at Krull’s departure, noting her past sympathy for rape victims. No one, it seems, explored whether Epifano’s out-of-character portrayal of Krull should figure in determining Epifano’s overall credibility.

In response to the controversy, Martin created a panel to recommend changes in Amherst’s disciplinary procedures for sexual assault, to focus on empowering victims.⁶ Chaired by Margaret Hunt, a professor of women’s and gender studies, the eight-member committee included the school’s Title IX coordinator, other administrators, and one lawyer—an Amherst trustee with no apparent criminal law experience. One of the two student members, Liya Rechtman, described herself as a sexual assault victim. All procedural changes adopted on the committee’s recommendation increased the likelihood of guilty findings.⁷

By then, Alice Stanton had a new circle of friends. They included Liya Rechtman and Dana Bolger, another self-described sexual assault victim who would later help found the campus accusers’ rights group Know Your IX. Stanton joined the duo in contributing regularly to a website frequented by Amherst’s victims’ rights advocates. On October 25, 2012, Stanton penned an essay reinterpreting her encounter with Cheng (whom she did not name in the essay). She now claimed that she was raped, though in the essay she focused on the pain of seeing friends turn on her after disbelieving her story.

Months passed. Then, in April 2013, at Rechtman’s urging, Stanton spoke with Amherst’s deputy Title IX coordinator, Susie Mitton Shannon. Shifting her story from her October article, she told Mitton Shannon that Cheng had sexually assaulted—but not raped—her. Mitton Shannon notified both campus security and the Amherst Police but allowed Stanton to defer any adjudication process for as long as she wanted. She did not inform Cheng of Stanton’s allegation.

Throughout the summer and early fall of 2013, Mitton Shannon repeatedly sent Stanton complaint forms, to remind her of the possibility of filing charges. On October 28, Stanton did so, though she did not involve the local police. In a written statement to the college, Stanton claimed that during the encounter with Cheng, she withdrew her consent because she was repulsed by Cheng’s sexual innuendo referencing her roommate. Shortly after the encounter, however, Stanton had presented the issue much differently, texting her friend: dirty talk comparing me to my roommate should NOT DO THINGS FOR ME. In addition, Stanton claimed to have been so terrified of Cheng after he left her room that she tossed his phone (which he had left behind) out into the hall and locked the door. Shortly after the encounter, however, Stanton texted a friend that she had told Cheng to go away when he came back for his phone—because by then the student with the military trained bod was in her room. I feel so baddddddd, she added.

Whether Amherst officials would see these and other credibility-destroying texts would emerge as the key issue in the case.

The college hired an employment attorney, Allyson Kurker, to investigate. It was her first job for Amherst, and she interviewed all but one of the witnesses in a single day. She then prepared a report stating that the accuser did not email, text, or otherwise reduce what had happened with Mr. [Cheng] to writing. Amherst administrators reviewed, and suggested multiple edits to, the report. But the inaccurate statement about text messages remained in. Kurker, who received $10,080 for her brief investigation, did not respond to an interview request by us.

Reflecting Amherst’s new sexual assault policy, Cheng’s hearing on December 12, 2013, occurred not before a panel of his peers—his fellow students—but before three administrators drawn from the student life and diversity bureaucracies of nearby Smith College, the University of Massachusetts, and Mount Holyoke College. To prepare them for this role, each of the three had received secret training from his or her institution’s Title IX office, along with additional guidance from Amherst.

This group represented an ideological fringe of the campus. Panel member Eric Hamako, for instance, who held a doctorate in social justice education, had produced academic work applying a multi-issue social justice analysis to such examples from popular culture as Harry Potter and zombies in his efforts at anti-oppression education.⁸ Stanton’s advisor for the hearing, professor Rhonda Cobham-Sander, had served as Amherst’s first special assistant to the president for diversity. She had also attracted attention on campus by delivering a passionate paean to victims’ rights after the 2012 Epifano sexual assault controversy. Cheng’s advisor, Torin Moore, was an Amherst administrator who shared Hamako’s background in social justice education. The college treated the two advisors differently: Cobham-Sander received a summary of Stanton’s initial interview with the college, from the previous spring. Moore, and thus Cheng, did not.

During the hearing, Stanton struggled to tell a coherent story. When a panel member asked what she had done after the alleged assault, she claimed that she had texted a friend to come spend the night with her, because she had felt very alone and confused. This text, a reference to the student with the military trained bod whom Stanton had invited to her room before she ever encountered Cheng that evening, was clearly relevant to the panel’s inquiry. Stanton’s acknowledgment that she had sent it contradicted her assurance to Kurker (the investigator) that she had sent no relevant electronic communications. But none of the panelists asked to see the text or seemed to notice the contradiction. Nor did they respond later to questions from us about their lack of curiosity about this critical evidence.

At Cheng’s request, the panel chair asked Stanton whether she had voluntarily gone to her room to hook up with him. The response was: Yes. Well—although I would like to say that I did feel some . . . like, well, pressure to do so. When a panel member asked Stanton to elaborate on this previously unmentioned pressure, Stanton said, So as we were making out in the common room, so some of the students there, so I think, so I think, so I think, [another student] included, were just like, well, chanting like, well, things about me.

Of what relevance was the claim to Stanton’s allegations, since the pressure came neither from Cheng nor at his behest?

Despite Stanton’s changing, bizarre story, the panel ruled in her favor. Although they noted that Cheng had probably been blacked out during the oral sex, the panel said that [b]eing intoxicated or impaired by drugs or alcohol is never an excuse.

This finding only raised more questions about Amherst’s fairness, since under the facts before it, the panel could have investigated Stanton. Her admitted behavior of leading Cheng to her room and initiating sex (before allegedly withdrawing consent) contradicted the college’s sexual assault policy, which indicated that an individual who is incapacitated—as the disciplinary panel found Cheng to be—is not able to make rational, reasonable judgments and therefore is incapable of giving consent.⁹ Defending the board’s decision not to fulfill its independent obligations to investigate a potential Title IX violation, Amherst blamed Cheng for not having filed a sexual assault complaint himself.

Without the opportunity to see Stanton’s text messages, and despite her inconsistent testimony, the panel members treated Stanton as credible. Since Cheng, having been blacked out, could not know whether Stanton had later said no, the panel assumed she had. They recommended expelling Cheng for sexual assault. The next day, one of the panelists had second thoughts and asked Amherst’s Title IX office whether a less severe response was possible. No record exists of a response from Amherst.¹⁰

Cheng appealed. Three days after his hearing, under the headline Amherst College Sexual Assault Policies Treat Alleged Rapists Better Than Laptop Thieves, The Huffington Post quoted Stanton—without identifying her connection to the case—as saying that at the college, The typical laptop thief is suspended for five semesters. . . . Rapists are not suspended for that long, if at all. . . . No rapist . . . has been expelled from Amherst in 20 years. That’s unacceptable and something Amherst has to change immediately.¹¹ Amherst administrators would have had good reason for seeing the article as an indication that the college would face another Epifano-like public relations disaster if it upheld Cheng’s appeal. The appeal was rejected.

After his expulsion, Cheng hired a lawyer. He obtained the texts decimating Stanton’s credibility, not in compulsory discovery but in the type of routine investigation that Allyson Kurker had failed to perform. His ex-girlfriend, having heard about the texts, asked Stanton’s friend for a copy of them. As she read them, she realized that Stanton’s allegations were not truthful. Stanton’s performance, her former roommate understood, had not only resulted in an unjust disciplinary process but made it more difficult for victims of sexual abuse to come forward without fear of being accused of fabricating their allegations. Cheng also received a sworn affidavit from the student with the military trained bod. On the evening of the episode, this student described Stanton as friendly, flirtatious, and spirited—just as her text messages showed—not anxious, stressed, depressed, or otherwise in distress.

When shown the new evidence in the spring of 2014, Amherst refused to reopen the case, saying it was too late to do so. The college’s lawyers added that the investigator, Kurker, had not been charged with seeking to obtain exculpatory evidence; she had been charged only with determining whether [Stanton] had communicated or recorded in writing that the Incident had been ‘non-consensual.’ Documents that corroborated Stanton’s claim of sexual assault, Kurker later testified, were the only e-mails that I would have found material. In other words, according to Amherst’s legal filings, the process in Michael Cheng’s case had worked as the college intended.

This is not a fictional tale like The Trial by Franz Kafka. It happened at one of the nation’s most prestigious colleges, thanks to policies approved by Amherst president Biddy Martin, under pressure from appointees of President Barack Obama. And with apparent support from Amherst’s board of trustees.

Cheng filed a lawsuit (the conclusion of which is detailed in the epilogue) against Amherst and several of its administrators. Amherst’s lawyer, Scott Roberts, said in a May 2016 hearing before U.S. District Judge Mark Mastroianni that he detected no inconsistency between the college having a thorough, fair, and impartial adjudication procedure and one that was biased in favor of alleged victims.¹²

The facts of Cheng’s case are unusually clear, because his lawsuit included copies of Stanton’s text messages, the transcript of his disciplinary hearing, and the college investigator’s full report. This type of material almost never sees the light of day, since all campus adjudications of sexual assault claims—unlike court proceedings—occur in secret. Sunlight is said to be the best of disinfectants, Justice Louis Brandeis wrote more than a century ago. But colleges go to great lengths, even beyond the dictates of federal privacy law, to keep their sexual assault proceedings in the dark.¹³

Amherst’s resolution of Alice Stanton’s charges typifies how most colleges handle sexual assault allegations these days. Start with an alcohol-soaked set of facts that no state’s criminal law would consider sexual assault. Add an incomplete investigation, unfair procedures, and a disciplinary panel uninterested in evidence of innocence. Stir in a de facto presumption of guilt based on misguided Obama administration dictates, ideological zeal, and fear of bad publicity. It’s a formula for judging innocent male students to be sex offenders. I’m afraid . . . we are over-correcting, Harvard Law School professor Janet Halley recently remarked. The procedures that are being adopted are taking us back to pre–Magna Carta, pre-due-process procedures.¹⁴

Ironically, even as colleges have engaged in such conduct, many sexual assault accusers and their champions have followed Angie Epifano’s example by telling implausible tales of college officials coddling alleged rapists and mistreating alleged victims. Such narratives of alleged rape on college campuses have come from activists at the University of North Carolina, the University of Virginia, Los Angeles’ Occidental College, and elsewhere. The main villains in such narratives are not the alleged rapists but rather college officials who have allegedly shown almost unspeakable cruelty to the victims they are supposed to protect. The media and many academics have parroted such tales as proof of a campus rape culture.

A sympathetic emotional response to a vulnerable person who tells of being raped is only human. On a personal level, alleged victims deserve to be believed—unless evidence suggests otherwise. That reality helps explain the warm applause that erupted at the 2016 Academy Awards when Lady Gaga performed her Oscar-nominated song Til It Happens to You and when Vice President Joe Biden introduced a group of female college students who said they had been sexually assaulted.¹⁵

But Biden’s appearance also furthered the Obama administration’s effort to blur the critical distinction between the need for personal empathy toward victims and the need for a college disciplinary process that pursues even-handed justice in search of the truth. Few people who heard a friend, family member, or colleague tell of sexual assault would express skepticism or bring up burden of proof, the importance of cross-examination, or the need for fair adjudicatory procedures. But those conditions are vital to wise public policy.

Since 2011, when the Obama administration ordered colleges and universities to transform their disciplinary procedures for alleged sexual assault on college campuses, between 20,000 and 25,000 such allegations have been made to schools, according to figures compiled through the federal government’s Clery Act database. Not all students who have been accused in such cases faced campus trials. Some accusers doubtless chose not to proceed with institutional charges. Others went to the police instead. And still others perhaps made allegations against non-students, people outside the purview of the college disciplinary process.

But at the least, many thousands of accused students have faced campus proceedings that were similar to—or even more one-sided than—what Michael Cheng experienced at Amherst. For accused college students—and only them—the federal government, joined by virtually all colleges and universities, has mounted a systematic attack on bedrock American principles including the presumption of innocence, access to exculpatory evidence, the right to cross-examine one’s accuser, and due process.

The mere existence of rape instills fear in potential victims, especially women, in all segments of society. Rape victims suffer deep psychological, emotional, and physical harms, which can last for a lifetime.¹⁶ The lengthy criminal sentences recommended by all states’ criminal codes indicate societal recognition of the magnitude of these harms. Under certain circumstances, rape even constitutes a war crime.¹⁷

By creating a growing contingent of wrongfully punished students—almost all of them male—the anti–due process polices decreed since 2011 by the federal government are already harming the intended beneficiaries: sexual assault victims.¹⁸ As more accused students, like Michael Cheng, become victims of deeply unfair processes, society will have reason to distrust all college decisions against accused students. In this respect, procedural fairness not only is critical to wrongly accused students but also serves the best interests of victims.

The idea that students accused of sexual assault are not entitled to due process has somehow taken hold, even though two of the last decade’s three highest-profile campus rape accusations were hoaxes. The Duke lacrosse case of 2006–2007 featured a politically desperate district attorney, Mike Nifong, using the power of the state to try to railroad three innocent students. His allies in rushing to judgment included unscrupulous underlings and police officers, news media employees, and more than 100 professors and administrators led by Duke president Richard Brodhead. They persisted in condemning the lacrosse players even after evidence of their innocence appeared on the public record. (We discuss this case in depth in chapter 3.)

Then came Rolling Stone’s since-retracted story of a sadistic gang rape at the University of Virginia’s Phi Kappa Psi fraternity.¹⁹ Rolling Stone and its freelance reporter, Sabrina Rubin Erdely (who had been roaming campuses in several states in search of a sensational rape story), unquestioningly accepted the fictitious tale that a succession of fraternity brothers raped a first-year student atop shattered glass. So did most of the media, as well as the University of Virginia’s president and faculty. Even more troubling, most UVA students rushed to judgment—unlike their Duke counterparts in 2006—and proved unwilling to reconsider, even as overwhelming evidence of the alleged victim’s lies emerged.²⁰ (We discuss these issues in depth in chapter 10.)

The last decade’s third high-profile campus sexual assault case was no hoax: after a campus party in 2015, former Stanford swimmer Brock Turner sexually assaulted—in a public area—an unconscious woman. Yet, albeit in different ways than the Duke and UVA cases, the Turner case undermined the narrative of campus accusers’ rights activists. Despite their suggestions that local police and prosecutors didn’t care about campus rape, Turner was arrested, tried, and convicted of sexual assault. Despite their insinuations of a nation awash in rape culture, his lenient sentence—six months in jail, plus a requirement to register as a sex offender—was widely criticized, including by us.²¹ And despite efforts by Stanford activists to portray Turner’s crime as typical student behavior, the national outcry itself showed this case (which we discuss further in chapter 6) to be highly atypical.²²

In this book, we explore around four dozen of the many cases since 2011 in which innocent or almost certainly innocent students have been branded as sex criminals by their colleges. We have studied tens of thousands of pages of legal documents (many of which have not previously been publicly disseminated), along with information gleaned from university handbooks, statistical studies, and confidential training material created for colleges and universities nationwide.

We are not partisans. We are moderates who both voted for Barack Obama in 2008 and again, though with much less enthusiasm, in 2012. One of us (KC Johnson) donated to the Obama campaign in both 2008 and 2012.

The campus witch hunts of the past five years recall the day-care abuse allegations of the 1980s, when shockingly implausible allegations were widely accepted as true. Dozens of innocent men and women around the country were sent to prison based on transparently absurd claims that child day-care centers were dens of pedophilia, murder, and Satanic ritual.

Then, as now, overhyped reports triggered a highly emotional response among the media and, subsequently, lawmakers and the general public. Then, as now, the myth was cultivated that anyone claiming to be a victim must be believed and the accused must be guilty. Then, as now, political figures changed procedures in light of what was perceived as an insufficient number of guilty findings, to degrade the presumption of innocence and make findings of guilt more likely. During the day-care panic, quack psychotherapists were paid to recover through hypnosis forgotten memories that they were, in fact, planting, and then to confirm these tales on the witness stand. In the current campus sexual assault panic, meaningful cross-examination of accusers is exceedingly rare—thereby dramatically increasing the chances of guilty findings.²³

David Rudovsky, a University of Pennsylvania law professor and longtime civil rights lawyer, sees parallels with other moral panics, such as the internment of Japanese Americans during World War II, the communist scares of the 1940s and 1950s, and elements of the response to terrorism after September 11, 2001—where we lost our way because too many were convinced that the threat was too great to be countered with normal due-process protections.²⁴ After a hearing in a case challenging a university’s handling of a sexual assault complaint, U.S. District Judge F. Dennis Saylor had to reach even farther back in time for an appropriate historical analogy: It’s closer to Salem, 1692 than Boston, 2015.²⁵

This book will touch only briefly (if at all) on several related topics that are distinct from the campus rape frenzy. Most closely related are federal and academic efforts to punish free expression of views that they mischaracterize as sexual (or racial) harassment, as well as a developing body of sexual harassment law and theory of which federal policies on campus sexual assault are an extension. Then comes universities’ zeal to stifle intellectual diversity in their pursuit of racial, gender, and ethnic diversity.

At the high school level, in a much-discussed 2015 article revealing closed-mindedness about gender questions at a prestigious prep school, New York University professor Jonathan Haidt explored the inculcation of politically correct ideology by many elite prep schools.²⁶ The last several years have also witnessed a handful of widely publicized high school rape cases. One was the rape trial of a recent graduate of the elite St. Paul’s School, in Concord, New Hampshire. The former student was convicted of the statutory rape of a 15-year-old schoolmate, motivated by a degenerate tradition called the senior salute. Another case was the gang rape of a passed-out-drunk 16-year-old student at Steubenville High School, in Ohio, by two 16-year-old football players. Onlookers had recorded the crimes on their cell phones and celebrated them in social media and text messages.

In the last five years, sexual assault on college campuses has received unprecedented attention from politicians, academics, and the media. The conventional narrative goes something like this:

An astonishing 20 to 25 percent of female undergraduates will be sexually assaulted before they graduate. This epidemic²⁷ has been sustained by a rape culture that permeates university administrations as well as fraternities and other groups of male students.²⁸ Women are at a greater risk of sexual assault as soon as they step onto a college campus, asserts New York senator Kirsten Gillibrand (the foremost congressional opponent of campus due process). Ignoring this emergency, colleges have been indifferent and even hostile to the millions of sexual assault victims in their student bodies.²⁹ The federal government thus ordered almost all universities to change their disciplinary rules in order to ferret out more sex criminals. Complaints about the presumption of innocence and due process should be disregarded because the crisis is so urgent and because 90 to 98 percent of accused males are guilty. The few falsely accused innocents will suffer no great injustice or harm, because campus tribunals have no prisons; if expelled, these students can move on to other colleges.

These claims are all untrue or unsubstantiated.

Far from a rape culture dominating campus discourse, those who seek due process for the accused are assailed as rape apologists, no matter how strong the evidence of innocence. For an example of this mind-set, one of the new campus regime’s stoutest defenders is Brett Sokolow, founder of the National Center for Higher Education Risk Management (NCHERM), a firm that helps colleges investigate sexual assaults. He accused the nation’s preeminent campus civil liberties organization, the Foundation for Individual Rights in Education (FIRE), of sticking up for penises everywhere.³⁰

This kind of environment presents due process as an obstacle to justice on college campuses. The political appointees leading the Education Department’s Office for Civil Rights (OCR) issued a statement in 2014 that colleges must ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant. At least in some circumstances, the administration maintained that its newfound interpretation of Title IX should trump constitutional protections, even for students at public universities.³¹

Harvard Law School professor Jeannie Suk Gersen explained the thinking behind such sentiments in a 2015 New Yorker essay. It is a near-religious teaching among many people today, Suk Gersen noted, that if you are against sexual assault, then you must always believe individuals who say they have been assaulted. . . . Examining evidence and concluding that a particular accuser is not indeed a survivor, or a particular accused is not an assailant, is a sin that reveals that one is a rape denier, or biased in favor of perpetrators. . . . Fair process for investigating sexual-misconduct cases, for which I, along with many of my colleagues, have fought, in effect violates the tenet that you must always believe the accuser.³²

It is better that ten guilty persons escape than that one innocent suffer.³³ That often-quoted wisdom comes from William Blackstone’s Commentaries on the Laws of England, first published more than 250 years ago. In today’s environment, the issue of sexual assault on college campuses appears to reflect the opposite premise: better that ten innocents suffer than that one guilty student escape punishment.

In a 2015 congressional hearing on policies toward campus sexual assault, Rep. Jared Polis (D-Colorado) mused, If there are ten people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all ten people. Breaking into sarcastic laughter, and showing his ignorance of the impact of being expelled as a rapist, he went on: We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.³⁴

In a moment that captured the witch-hunt atmosphere surrounding discussions of campus sexual assault, the audience, packed with accusers’ rights activists, burst into applause.

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THE FOUNDATIONS OF THE FRENZY

For years, the leadership of Michigan State University has been very concerned with sexual assault on campus. In 2013, the university initiated a No Excuse for Sexual Assault campaign, designed to do whatever we can to raise awareness to prevent sexual assault on Michigan State University’s campus! ¹ MSU required all incoming students to attend two training sessions on sexual assault, with additional training for student-athletes. It distributed posters intended to dispel myths. It handed out shirts, stickers, buttons, and brochures with the No Excuse slogan at university events. It developed a No Excuse Facebook page. It created a special help line for students to report sexual assault. And it translated all of these materials into Korean, Arabic, and Chinese.

This activity had not been inspired by an explosion of sex crimes on the 50,000-student MSU campus. From 2012 through 2015—the four most recent years for which data are available at the time of writing—the number of sexual assault accusations per year averaged 21, fewer than one for every 2,250 students.²

And far from dispelling myths about sexual assault, MSU’s training inculcated misinformation into many students. In a university survey of all duly trained first-year and transfer students, for example, 74.9 percent of the students incorrectly identified as false a statement that "someone can still give consent for sex if they are using alcohol or