The Bad Science Behind Campus Response to Sexual Assault | Hacker News Reader

The Bad Science Behind Campus Response to Sexual Assault

theatlantic.com

164 pointscurtis52 comments

Part 1 of this series https://www.theatlantic.com/education/archive/2017/09/the-un...

starts off with a story that sounds like a modern retelling of To Kill A Mockingbird: A white woman has consensual sex with a black man. Later she becomes worried about what other people will think and accuses the black man of rape. He then undergoes a sham trial and is found guilty and punished. The big difference is that in To Kill A Mockingbird, they at least pretended to have due process giving the accused a lawyer and allowing him to confront his accuser. The modern version doesn't even have a pretence of due process.

> The modern version doesn't even have a pretence of due process.

Seems largely due to this needing to be handled in a criminal matter where there are laws, and not vague/varying campus rules and bureaucratic processes

I thought your description must surely be hyperbole. So I read the article and found that you described it exactly as it was. I'm speechless.

I see what you mean now, but on initially reading your comment I was under the impression that the man involved was convicted of a criminal offense. Just to clarify for anyone else reading, this didn't happen.

No he just had his life ruined instead.

We have spent centuries learning why due process is critical and somehow we throw it all out because someone in government sends a "Dear Collegue" letter.

He's only expelled from the school and publicly "known" as a rapist, no big deal. But you're right, it's not criminal liability, which is why back when this was still a new thing advocates wanted it to be more than "just" expulsion - https://www.washingtonpost.com/local/dc-politics/scarlet-let...

Which brings us back to - why are colleges making determinations about rape? Like Professor Johnson says from that article:

“If the student is guilty, that’s not anywhere near sufficient punishment,” Johnson said. “But if the student is innocent, this is a life-altering thing. If they’re going to put it on a student’s permanent record, they need to do a lot more than they do now to be sure they get it right.”

The actual criminal justice system is already horrifyingly cruel on sex offenders, even after they've served their time, and after they've registered on the "informative, not punitive" sex offender registries. Scott Greenfield covers the trampling of civil liberties under the guise of "protecting the children" here - https://blog.simplejustice.us/?s=sex+offender. The punishments range from where to live, to whether you're allowed to use the Internet, and those are the legal ones - how well do you think a sex offender reintegrates into society when no one wants to employ them or associate with them?

I don't see any reasons to doubt that, if left unchecked, the college system won't devolve into such a cruel and horrifying state. It's only natural - rapists are almost universally hated, so it's no big deal if we trample on their civil liberties a bit(or a lot).

I didn't say it wasn't a big deal. You're reading way too much into my post. I was just pointing out that the term "sham trial" was used in a potentially misleading way to refer to something that was not a trial within the criminal justice system.

He said this student didn't even get a sham trial. Why would you even comment on your own reading miscomprehension?

He said that there was no pretence at due process. That could just as easily mean a trial without due process (i.e. another sham trial).

Maybe this is only a nitpick, but To Kill A Morkingbird had nothing to do with consensual sex. IIRC the accuser in that story really had been raped, but the rapist was not the accused.

You've been downvoted because you're wrong. But it seems like an excellent opportunity to rewatch/re-read the book (or watch/read it for the first time).

Not exactly: Mayella Ewell and Tom Robinson did not, in fact, have sex. Tom rebuffed Mayella's advances, and Bob Ewell concocted a rape as retribution for Mayella's attraction to a black man. However, the book strongly implies that, at some earlier point, Bob Ewell himself had actually raped Mayella -- perhaps habitually. It's not lingered upon, but the implication, while brief, is difficult to oppose.

That is frightening. Very frightening. I mean, she did what she did. But later, disclaimed responsibility. Arguably because she was stoned. And the guy, who was also stoned, was arguably supposed to excuse himself from the situation, because she was too stoned to consent.

But of course, he was also too stoned to consent, so arguably she raped him just as much as he raped her.

That will never happen, of course. Women do get prosecuted for sex with underage men. But never, as far as I know, for having sex with someone incapable of consenting.

This is crazy shit. I mean, under these circumstances, what sane man at university would ever have sex with a woman? It's like playing Russian Roulette. Or speeding excessively on the interstate. Sure, most of the time, there's never an issue. But when there is, it's a dramaticly bad issue. Often life destroying.

Edit: It's been decades since I had any personal experience with university age people. There are children and grandchildren of friends, for sure, but I don't talk substantively with them. All I know is what I read in mass media. So it occurs to me that it's just that some rare events get hyped. And that dating for most university students remains uneventful. Anyone have some insight or references?

You might also be interested in the Ruth Marcus op-ed in WaPo -- acknowledging that things are very broken right now in protecting the accused and actively hoping that Betsy DeVos will help swing the pendulum back.

https://www.washingtonpost.com/opinions/betsy-devos-could-ch...

I mean, if Ruth Marcus is rooting for Devos to fix this, I'm guessing things have gotten really bad;

"But the Obama administration’s move also prompted an overcorrection at some institutions that failed to do enough to protect the rights of students accused of wrongdoing."

Puts this Atlantic exposee in perspective.

As I've learned more about this topic I am increasingly baffled. At first I thought "preponderance of evidence" standard (< 50%) was just rhetoric, but then I read more and realized, that's exactly what's happening.

Then you learn about the attorneys as house plants - who came up with that? Then you learn about how it all started with the "Dear Colleague Letter"?

I actually think Ruth nailed it on this one. So I went to her twitter and found out more about her.

WTF? I mean, read this:

> Colleges have adopted definitions of sexual wrongdoing, [Elizabeth Bartholet, Nancy Gertner, Janet Halley and Jeannie Suk Gersenthey, at Harvard Law School] wrote, that include “conduct that is merely unwelcome . . . even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter.”

That is insane.

It isn't that uncommon for bad ideas to take root and influence decision making. And I'd say the core thesis of the article is that a bad idea has taken root ('inconsistencies and gaps in the accusation can be ignored because rape is terrible').

That doesn't seem interesting to me. But what is fascinating is considering the difficulties that have to be worked through to organise a rational argument in favour, essentially, of tightening the standards applied to potential rape victims.

I'll show my colours and say that after the James Damore business, it wouldn't be a shock if the university fired anyone who made the arguments in this article couched in anything but the most mild terms.

Anyone daft enough to write manifestos about something as sensitive as the standards of proof for rape is grinding an axe to cause a reaction.

Ched Evans is a UK football player convicted of rape and then found not guilty on appeal.

There was a lot written about the case, particularly because the appeal relied on questioning the accuser about her sexual history.

Some lawyers have written about the importance of protecting victims from abusive questioning, while also protecting alleged offenders from miscarriages of justice.

Those barristers and solicitors aren't grinding axes, they're trying to educate an ignorant public. (In this case they had to correct the mistaken impression that "not guilty" is the same as "innocent".)

(I upvoted your comment because I agree that people writing manifestos about rape tend to be grinding axes.)

Everytime I read about this issue I wish we had the Scottish 'Not Proven' [0]. Many of these cases are murky and it is impossible to determine guilty or not guilty.

0. https://en.wikipedia.org/wiki/Not_proven

For a crime which the mere accusation often leads to people being fired from work, kicked out of schools, vigilante justice, and social shunning, having a implication of guilt but no formal conviction seems like a setting a torch next to a powder keg, then moving away while saying "not my fault if it explodes".

There's a reason they call it the bastard verdict. A system with three verdicts creates an uncomfortable muddying of the presumption of innocence. A verdict that implies "we think you did it, but we can't prove it" might be comforting to a plaintiff, but it's potentially hugely damaging to a defendant.

It is a lot less damaging than being wrongly convicted.

The issue with almost all these cases is if the presumption of innocence was applied consistently nobody would ever be convicted. The juries are basically put in the position of trying to determine a binary outcome from an event that is often too murky to allow this.

The wiki article does discuss the positive impact of this verdict on sexual assault cases.

>> The juries are basically put in the position of trying to determine a binary outcome from an event that is often too murky to allow this.

If the event is "too murky" then I would argue it shouldn't even be covered by the criminal law (or any law). Let's convict only in cases where it is possible to prove guilt beyond reasonable doubt, and leave those ambiguous, murky ones as something to settle between two adults (for lack of better term let's call them "alleged victim" and "alleged abuser").

Juries don't get to choose the cases put before them. There is also the minor issue of what is reasonable doubt.

As we have learned from the number of innocent people freed from death row in recent years juries don't always get it right. Let's give them more than a black or white option to a grey world.

When the case reaches the jury it's already too late - accused student can be suspended and otherwise punished a long time before that. We've lowered the threshold of what triggers an investigation to such ridiculous level that we are getting a lot of false positives.

Why the universities even need special internal policies about sexual abuse? Why college students cannot be prosecuted according to the same criminal laws as the rest of the society? Why do we need this ideologically biased Title IX personnel, instead of relying on police and DA office to investigate? College students are at least 18 years old - let's treat them like adults, not like vulnerable, stray children.

But that's exactly what "not guilty" means. Would it really matter that much if we changed the words?

Well not quite. The wiki article is worth reading.

I read the wiki article. In practical terms it's the same thing. If you don't have enough evidence to prove the accused committed a crime, it really doesn't matter whether or not you think he did it.

A "not guilty" verdict in the US means the "beyond a reasonable doubt" standard wasn't met. It doesn't mean anything more or less.

A "not proven" verdict in Scotland means... there's not enough evidence to prove he did this, but he looks kinda shifty?

I might support a verdict of "innocent", meaning the defense proved the accused could not have committed the crime for which he was accused.

Exactly. It means we don't think the person is innocent, but we don't have enough evidence to convict. The problem with providing juries with only two outcomes where the evidence is not open and shut, is that you are forcing the jury to make a choice they really can't on the evidence available. It is especially hard when the victim is believable and the accused shifty. Many times juries convict when they shouldn't.

On the topic of "beyond a reasonable doubt" why is this not turned into an actual probability. Juries have no difficulty dealing with probabilities in civil cases, but apparently in criminal cases they can't be told what reasonable doubt means.

We do.

Our system has "proven guilty beyond a reasonable doubt" and "not proven guilty beyond a reasonable doubt". We don't have an "innocent" verdict, nor any concept of proving someone innocent.

What our system lacks is the Scottish "not guilty"; not the Scottish "not proven".

That is not how people on juries think. Forcing people to make a binary choice when it is not possible just results in miscarriages of justice.

If universities were serious about reducing campus assaults as well as false accusations it seems as if cutting down on binge drinking would be an awfully good place to start. It seems to be implicated in every reasoned discussion of the subject, this article included.

The same author (Emily Yoffe) wrote an article about this 4 years ago, but she was of course shot down with the usual 'victim blaming' misrepresentations.

Well, while I don't disagree, statistically, campus is safer than off campus.

OK, I've been robbed at gunpoint. Also arrested at gunpoint. And a guy with a knife threatened to rape me, but didn't.

The first two left me very traumatized. The third, not so much. True, I would very likely have been traumatized, if he'd actually raped me.

Still, sex isn't the major issue for me. It's being powerless. But of course, I'm a guy. So maybe I'm just incapable of truly empathizing.

Rape often causes feelings of dirtiness, worthlessness, etc that other forms of powerlessness usually don't.

I guess.

Many years ago, an ex girlfriend got back in touch, and wanted sex. Just once, it turned out. Then, I was diagnosed with Chlamydia and HSV. And later, I hear from mutual friends that she was bragging about infecting me.

Anyway, that I feel dirty about. Because I will have HSV for the rest of my life. Maybe that was rape, but in a devious way. And I get that forced risk of disease is part of the trauma about rape.

I don't know about whatever legal jurisdiction you're in, but in Canada that would be an open and shut aggravated sexual assault case. People have gone to jail for failing to disclose that they have an STD, on the basis that you're not really consenting if they leave out an important detail like that; to deliberately infect someone is far beyond that.

Yes, I'm sure that it's illegal now, everywhere sane. But this was a long time ago.

Ah, ok. I tend to assume that anything people talk about on HN is fairly recent, since most people on HN were born fairly recently...

Really? I fall into the assumption that most people are near my age... and I was not born too recently.

True enough, but there's a tail.

Emily Yoffe is not an objective arbiter on this topic. She has been writing against first the existence of, and then the response to, campus sexual assault for five years. That doesn't prove her wrong, but she does have an agenda.

I would point to several red flags regarding this article.

1st: If she sought comment from Rebecca Campbell, it's not mentioned anywhere in the piece. An article in a magazine like The Atlantic should include, at the very least (we reached out to Rebecca Campbell, but she declined to comment). (Edit: This is incorrect. She does mention a conversation with Rebecca Campbell near the bottom of the article.)

2nd: All of the people who firmly agree with her in the article are lawyers, some for those accused of sexual assault. The scientists she interviews are more circumspect. She interviews scientists who have doubts and uses lawyers to "prove" she's right.

3rd: She doesn't interview anyone who specializes in sexual assault research or work. There is no quote from anyone defending this theory or its applicability to their work. There are no interviews with people who have claimed this has happened to them, either (or who can say that's not what happened to them).

4th: There's no comment from any of the schools saying they use this research as a major part of their sexual assault prevention strategy. Once again, there's no "no comment" response either.

5th: There's not a single outside link in the piece (who is this band of self-styled experts schools are relying on? Who knows). If you look at Ta-Nehisi Coates's recent article, which is excerpted from a book, there are links, so it's not an editorial policy at The Atlantic.

This is shoddy journalism, and I encourage anyone reading it to take it with a grain of salt.

Campbell’s claim that a sexual-assault victim’s memory consists of completely accurate but disorganized fragments contradicts fundamental scientific knowledge of the nature of memory, McNally told me. “The brain is not a videotape machine,” he said. “All of our memories are re-constructed. All of our memories are incomplete in that sense.” Each time we recall an event, it is being reassembled, and sometimes changed by the very process of recall.

What's shoddy about this? It's an important observation that has been proven time and again. Dismissing the entire piece as shoddy and circumspect is just as much of an agenda.

Are we certain that the malleability of memory has nothing to do with the high rate of innocent people on death row? It's supposedly about 4%. I wonder how many of them can be traced back to witnesses relying on memory rather than hard evidence implicating them.

That's not directly related to the piece, but the topic seems worth talking about.

I didn't call the scientists' work shoddy, nor did I call the article circumspect.

Well, no. But the scientists' work is being highlighted by the journalism, which was. The scientists themselves were called circumspect.

>1st: If she sought comment from Rebecca Campbell, it's not mentioned anywhere in the piece. An article in a magazine like The Atlantic should include, at the very least (we reached out to Rebecca Campbell, but she declined to comment).

This is straight from the article:

>I spoke with Campbell about all this last fall, and in our conversation, she said...

If you're not gonna read the article, you've gotta at least ctrl+f before saying that.

I'm sorry, I missed that. I'll leave it in, but I'm wrong about it.

Why don't you leave it in and add a footnote to your original post to acknowledge you were wrong?

Done.

I've never seen an arbitration of such a vague and emotionally charged conflict which I would consider objective. Do you know of any? It would make interesting reading.

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