Cognoscenti Cognoscenti

'Believe The Victim'? Maybe -- But Protect The Rights Of The Accused, Too

A recent White House report found one in five female college students are sexually assaulted. Not exactly, says  Wendy Kaminer. She takes issue with the language of the report, saying the Obama Administration is apparently, "oblivious to the difference between allegations, estimates and facts." (Elaine Thompson/AP)closemore
A recent White House report found one in five female college students are sexually assaulted. Not exactly, says Wendy Kaminer. She takes issue with the language of the report, saying the Obama Administration is apparently, "oblivious to the difference between allegations, estimates and facts." (Elaine Thompson/AP)

“Nearly one in five women have been raped in her lifetime,” according to the White House Council on Women and Girls. Is that a fact? Or is it allegation or an estimate based on self-reporting surveys?

Interestingly, the White House asserts that the same number of women, one in five, “has been sexually assaulted while in college.” Is that a fact? Not exactly: It’s a statistic derived from “a web-based survey of undergraduates,” which means that one in five women has reported suffering a sexual assault. Maybe their reports are absolutely, unassailably accurate. Maybe not.

I wouldn’t be surprised to learn that one in five women has been sexually assaulted on campus or “in her lifetime,” and I shouldn’t be surprised that the administration, with its dismal record on civil liberty, is oblivious to the difference between allegations, estimates and facts. Still it’s a little shocking to read a White House report that effectively assumes all accusations or reports of rape are true, and all of the accused are guilty.

Government officials, as well as campus administrators, should care about the respective interests and rights of self-identified victims and alleged offenders in equal measure.

These assumptions are implicit in the language of the report: “Despite the prevalence of rape and sexual assault,” (“apparent prevalence,” I’d have written) “many offenders are neither arrested nor prosecuted.” Then how can we be sure they were offenders? All we can say with certainty is “many alleged offenders are neither arrested nor prosecuted.” In fact, since only 36 percent of sexual assaults are reported to the police (according to a National Crime Victimization Survey) and since reporting rates on campus are described as “very low,” we can’t even talk about “alleged offenders,” while so many remain unidentified.

I’ll be mocked for nitpicking, I know, but the failure to distinguish instinctively between an accusation and a proven or substantially proven fact is not merely semantic. It reflects an attitude toward sexual assault cases that devalues due process and underlies the kangaroo courts on college campuses. Indeed, the Obama administration actually requires colleges and universities to minimize the due process rights of alleged offenders by using a minimal standard of proof when adjudicating complaints of sexual harassment or assault.

On the left, the administration’s anti-libertarian stance is politically popular. “Believe the victims,” is a familiar demand, which practically obliterates the rights of the accused (or even the need for a hearing.) “Colleges don’t make it clear how to go about reporting an assault nor stress that anonymity is permitted at every step,” one campus activist has asserted, apparently indifferent to the difficulties of adjudicating an anonymous accusation. ”We don’t want to victimize the victim,” Kevin Kruger, president of a group of student affairs administrators explained, in a discussion on Radio Boston. If victims “want to be anonymous, if they want their names to be withheld,” they should have that option, he opined.

One listener recognized the Kafkaesque absurdity of this: “How exactly would it work to have one person accuse another of rape ANONYMOUSLY,” he wondered in a comment. “So a student, presumably male from the tone of the conversation, is brought before a university disciplinary board and told what? ‘Someone said you raped/attempted to rape them, but you're not allowed to know who?’ … Certainly the ability to get someone thrown out of school by anonymously accusing them of something would never get abused, right?”

“Believe the victims.” Coming from feminists protesting “rape culture,” it’s understandable (however misguided.) Coming from school administrators and the Obama administration, even in modified form, it’s inexcusable. Government officials, as well as campus administrators, should care about the respective interests and rights of self-identified victims and alleged offenders in equal measure. They should care about fairness for all. “The right to due process is not an obstacle to justice,” as the Foundation for Individual Rights (FIRE) observes. “(R)ather, it is the guarantee that justice will be served. Without due process, campus proceedings will arrive at arbitrary, unsupportable conclusions that lack the integrity all parties deserve.”

Considering its record, the administration seems unlikely to consider this essential perspective on justice in devising its promised recommendations on sexual violence on college campuses. The White House has reached out to anti-violence activists, who are understandably pleased with the latest initiative: Michelle Obama’s chief of staff and executive director of the White House Council on Women and Girls reportedly called a student activist when the council’s report was released to congratulate and thank her for her work. Civil libertarians concerned with the rights of the accused don’t need to be stroked (and shouldn’t wait by the phone), but they do need to be consulted and had better demand to be heard. Justice isn’t a zero sum game.


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Wendy Kaminer Cognoscenti contributor
Wendy Kaminer, a lawyer and social critic, writes about law, liberty, feminism, religion, and popular culture and is currently a correspondent at The Atlantic. Her latest book is "Worst Instincts: Cowardice, Conformity and the ACLU."

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