As I write this, I don't know how much of the November 19 Rolling Stone article on rape at my alma mater, the University of Virginia, will ultimately turn out to be true. It's possible that "Jackie," the accuser in the story, actually was gang-raped in a fraternity house, but that some of the details she seemed to recall so vividly in the article were erroneous. It's also possible she made the story up, in part or entirely. About the only thing I know for sure is that Rolling Stone is guilty of journalistic malpractice, and I hope someone at UVA has the standing to sue the magazine and drive it out of business for the damage it has so recklessly done to the University's reputation.
Apart from that very desirable outcome, there are two things I hope, wanly, can come out of this mess.
First, I hope the University gets out of the business of adjudicating rape and sexual assault. They are violent felonies, not academic code violations, and the criminal justice system, however flawed, is the best place to sort them out.
To begin with, anyone employed by the University has an inevitable conflict of interest when it comes to investigating or judging a rape. It's in the interest of any university to sweep bad news under the rug, lest it upset donors and prospective students. (Or, as in the case of Florida State University, lest it weaken the football team.) Any process monitored or led by a university employee is tainted. On top of that, the investigation of a rape allegation requires expertise that only the police have. Deans are not investigators or forensic scientists.
Right now, though, the trend is going in the opposite direction. Under pressure from both the Obama administration and advocates for the survivors of rape, Virginia, like many universities, has created quasi-judicial, internal procedures that survivors can choose to handle cases of rape and sexual assault. These procedures may protect the accuser from being interrogated by investigators or cross-examined by a defense lawyer about her allegations. They may allow her to make her accusation without worry that her name is going to be made public or that she'll have to confront her attacker. They may prevent the accused from calling witnesses about the incident, or even from having an attorney. They may stipulate that the standard of proof for an allegation is not "beyond a reasonable doubt," as in a criminal trial, but whether a panel students and administrators think the charge is probably true.
The argument is that these internal, quasi-judicial processes are more likely than criminal trials to afford justice to the survivor and punish the transgressor, even if the punishment is "only" expulsion. The argument is that student rape survivors just cannot be expected to go to the police the way all other crime victims are expected to go to the police and avail themselves of the criminal justice system. Rape survivors have been too traumatized, the argument goes, and the criminal justice system will traumatize them further without any guarantee that the rapist will be punished.
I don't buy that argument. Survivors of rape on campus doubtless wish to avoid investigations, trials and cross-examination. Incidents of rape on campus typically involve drinking; a lot of them involve friends. Survivors don't want to be grilled about how much they had to drink or what exactly they said and did before they decided they were not giving consent. But lots of other people would rather not be grilled about their behavior before they became crime victims. If you, for instance, were defrauded by Bernie Madoff's investment scheme and lost your savings, you might just as soon not seek restitution in a public forum where you'll be held up to ridicule for being both gullible and greedy. But that's tough. If you want justice, you have to be prepared to go to court.
I understand that rape is not financial fraud. But there's a reason why adversarial, public trials, for all their flaws, have been a mainstay of enlightened justice systems for going on a thousand years. They are the best mechanism we seem to be able to come up with for the protection of both the accuser's interests and the rights of the accused. And the rights of the accused are very much at stake in any internal, quasi-judicial process. A conviction for rape by a campus tribunal may not lead directly to jail time, but it can certainly ruin a life.
As this episode--like the Tawana Brawley case and the Duke lacrosse case before it--shows, not every accusation is grounded entirely in fact. Innocent people can be accused and any appropriate system has to protect their right to defend themselves. The advocates for rape survivors don't generally want to give the accused the same due process rights he would have in a criminal court, and they attempt to dismiss this problem by saying that false accusations make up a small percentage of rape allegations. I've seen figures ranging from two percent to twelve percent. I don't know what the actual percentage is, but I know that the rape victim advocates shun the very idea of questioning an accuser's story. Jackie, the purported victim in the Rolling Stone piece, told her factually flawed story to many members of the UVA survivor advocacy community. None of them questioned her veracity. One of them, an alumna named Emily Renda, has told reporters it's not her job to verify a rape accusation; her job is to support the accuser. Ms. Renda introduced Jackie to the Rolling Stone reporter, who also apparently didn't consider it her job to verify the story. Now both the reporter and the victim advocates are complaining that the story's factual flaws must't be allowed to divert attention from the urgent need to attack "rape culture" by supporting accusers in tribunals where the rights of the accused are truncated.
But I don't think you can build a system around the idea that if a few innocent men get expelled, they're just collateral damage that has to be tolerated for the greater good. (For a comprehensive account of the collateral damage being caused at many universities, see this report in Slate.)
I think the university's role in this process should be referring all rape allegations it receives to the police and using its considerable influence to make sure that the police have a very competent, very professional unit to investigate them and prosecute them. It should suspend students who are arrested or indicted for crimes of violence, sexual or otherwise. It should expel them, permanently, if they're convicted. It should advocate for judges and courtroom rules that prevent defense attorneys from putting accusers on trial while allowing them enough leeway to defend their clients. The university should do anything it can to create a social climate in which the victims of sexual violence are supported, not shunned, when they make an allegation.
None of this would, I know, satisfy the rape survivor advocacy groups. And, admittedly, it would be an imperfect system. Survivors would have to testify about their attacks in court and re-live those terrible experiences. Sometimes rapists would be acquitted. But I would submit that simply by making a criminal charge, survivors would be getting a measure of justice. The accused would have to hire an expensive lawyer. That would mean going to his family and asking for the money, letting his family know what he had been accused of doing. And his name would be in the public record. For the rest of his life, anyone with internet access, whether a prospective employer or a prospective girlfriend, would know he'd been accused of rape. Those are not trivial consequences.
Rather than creating quasi-judicial tribunals, the University ought to be about the business of changing its culture to one which better cultivates and supports healthy, mutually respectful social and sexual relationships. From what President Sullivan has said, there is likely to be a concerted effort to make students safer. There will doubtless be lots of lectures and training sessions about intervening to protect kids who get drunk, about understanding that a woman's "no" must be respected whenever it comes out of her mouth. And those will be useful exercises. But I hope the University's effort doesn't stop there. I hope the University undertakes a massive effort to displace fraternities in undergraduate social life.
When I was an undergraduate at UVA many, many years ago, fraternities were central to the University's social life, just as they are today. I was a member of one of them for about two years. What I saw was not the "rape culture" that Rolling Stone accused UVA of fostering. But it was not a healthy culture, either. I would call it a seduction culture.
This was back in the days just before the University became fully coeducational, and a lot of the dates men had were with women from colleges like Mary Baldwin and Sweet Briar, who came to Charlottesville for the weekend. The ideal fraternity man was not, in those days, a rapist. He was a seducer. His suave charm, elegant clothes and silver tongue--along with the contents of the bottle that he always had close at hand--lured girls into his bed. The archetype was captured well in the 1974 film Animal House, in the character of Otter. Seduction was so ingrained in fraternity life that I can remember earnest discussions about whether the University's Honor System prohibited telling a woman something you didn't mean in an effort to get her into bed. The consensus was that it didn't.
I never saw, or heard about, a rape in my undergraduate years, but I saw and heard about a lot of encounters where women were targets of seduction. I saw tears and bruised feelings on Saturday and Sunday mornings. And, of course, I saw a lot of drunkeness, some drug use, and a lot of racism and snobbery. There were, on the other hand, positive aspects of fraternity culture. I made some good friends. I had some good times. I went to a lot of boozy, riotous parties that I now recall with a sort of rueful fondness. I got a boost into journalism and writing because the members of my fraternity were entrenched, at the time, as leaders of the student newspaper, The Cavalier Daily. But by the time I graduated, I had come to hope that fraternities would, in the new era of coeducation, wither away.
They haven't. They've flourished. Fraternities at UVA today doubtless have some of those same positive features I found; plus, I understand, they now polish their images with community service projects that do some good for someone. But from all the comments that have been posted recently by women who have graduated from UVA over the four decades since I did, I have to believe that in some crucial aspects, fraternities have gotten worse, rather than better. Rapes and sexual assaults occur within their walls. They occur way too often. I suspect that they will always be a problem in all-male organizations ruled by adolescent testosterone and a sense of elitism and privilege.
I say that I think the University should displace fraternities rather than ban them because I believe that displacement is the best we can hope for. Fraternities thrive because they fill a perpetual need among students. Eighteen-year-olds come to a big university and they're suddenly a little lost. The friends and family that knew and valued them for the first years of their life are gone. The eighteen-year-old is just an anonymous face in a big crowd. He is naturally going to want to belong to something, to a smaller group that can give him an identity. If that group has social prestige, all the better. If it throws raucous, boozy parties, better still.
No conceivable UVA administration is going to ban fraternities, if for no other reason than that their alumni are generous donors in positions of power. But it may just be that the scandal caused by the Rolling Stone article will provide the motivation to create something better--small residential and social units that take in students of both genders. These units would offer good living quarters, a good place to eat, and good parties. They'd be expensive to build and they'd probably need some sort of action by the legislature to be able to compete with one of the big attractions of fraternity life, the provision of alcohol to minors. But maybe, if they were done well, these units would become more attractive than fraternities to the vast majority of students and would, over time, replace them. I know the University has tried fitting residential colleges into some existing dorms. I don't know how successful they have been. Maybe the University hasn't done the job the way it needs to be done.
This is the time to come up with a vision and start raising money to make it reality. Then, maybe, something good will ultimately come out of the Rolling Stone disaster.