President Obama’s Office of Civil Rights has made reducing sexual assault, and specifically campus sexual assault, a priority. The government’s narrative surrounding campus sexual assault has resulted in concentrations of power in governmental agencies and university administrators who, in my view, are promoting civil rights at the expense of important civil liberties. The treatment of campus sexual assault, both by the government and by some journalists, shows an unfortunate inclination to prioritize one’s policy agenda over truthful discourse and democratic engagement on a subject. The narrative, media reporting, and even statistics presented on campus sexual assault are so politicized, it is currently impossible to know how to strike the right balance between the civil rights and civil liberties implicated in investigating and punishing campus sexual assault. Unfortunately, many fervently trying to solve the problem of campus sexual assault have obscured the contours of the problem.
As classically categorized, “civil liberties” involve our freedom against governmental intrusions or prohibitions. “Civil rights,” in contrast, concern positive obligations the government places on its citizens, or governmental intervention designed to promote the interests of its citizens. Due process civil liberties give individuals protections against the government depriving them of life, liberty, or property without a fair hearing. For example, some process is required before a student at a public university can be expelled for sexual assault. Free speech is also a civil liberty; when certain speech is deemed sexual harassment, the government is prohibiting individuals from expressing certain views. In contrast, Title IX promotes civil rights; the government intervenes to require universities to take certain steps to ensure that women have equal access to educational opportunities. The propriety of the governmental intervention under Title IX, and the extent to which civil liberties should be compromised in defining and regulating sexual harassment and sexual assault, depends on the extent of the problem the government wishes to remedy. Striking the appropriate balance between civil rights and civil liberties requires accurate, de-politicized information gathering.
The federal Office of Civil Rights, housed in the Department of Education, is in charge of implementing Title IX, which prohibits gender discrimination at any college receiving federal funding. President Obama’s OCR has taken dramatic steps to remedy what it believes is a growing problem on campus, sexual assault, which it treats as an issue of gender discrimination. OCR sent a letter to universities that instructed them that, in order to comply with Title IX, they must take specific measures when investigating and punishing those accused of sexual assault. For example, all accused of sexual assault must be investigated and punished based on a preponderance of the evidence, a lower standard than the clear and convincing evidence standard many colleges wish to use (which is still lower than the reasonable doubt standard that protects a defendant’s right to due process at criminal trials). OCR has assured universities that its guidelines are non-binding. However, OCR enforces the guidelines as binding, thus circumventing the procedural protections required when an administrative agency promulgates new regulations (such as notice-and-comment rulemaking which requires public input into proposed agency rules). OCR also does not acknowledge that its treatment of sexual harassment may infringe on public university students’ First Amendment rights to free expression.
Sexual assault is a serious problem, but it’s not clear to me how widespread the problem is or its magnitude. Social science indicates that very few allegations of rape are false, and women often underreport sexual assault. Perhaps as a compensatory response, campuses, following OCR’s “guidance,” have expanded the definition of what constitutes sexual misconduct to include minor touching and even verbal utterances. Because interested parties are in charge of gathering the information on incidences of sexual assault, the statistics are often also skewed in favor of lumping minor unwanted contact or advances together with major sexual assaults. Further, applying psychological pressure in advance of an event, regardless of consent obtained during a sexual encounter, is now considered sexual misconduct in many cases. Psychological pressure and minor unwanted touching are ignoble, often sexist, sometimes illegal ways of behaving, but their conflation with rape tends to exaggerate the problem of serious sexual violence and yield a monolithic attitude about what appropriate sex is. In an effort to compensate for the fact that victims often don’t report rape, for fear of a hostile system, and to change the culture surrounding sexual encounters, campus administrators (and some states) continually expand the pool of what constitutes a nonconsensual encounter. This has led to the prohibition of what some scholars have termed “ordinary sex.”
Sexual harassment, sexual discrimination, and sexual assault have also been conflated, due to the government’s interest in treating sexual violence as a gender-based issue. Although sexual assault happens far more often to women than men, and although the effect of sexual assault is to disempower women, sexual violence is not the same as gender discrimination. Men rape men, and women rape women. The conflation of sexual violence with gender discrimination, in addition to the expanding definition of what constitutes sexual misconduct, has led to an atmosphere on campus where many women are unnecessarily afraid and feel victimized in cases that seem consensual.
Further, journalists and documentarians who wish to raise awareness about campus sexual assault present biased, often misleading, sometimes patently false, accounts of particular incidents, augmenting fear about the “hunting ground” of campus life. The fact is, most men are not sexual predators, and many sexual assaults are perpetrated by the same repeat offenders, who are not initially caught, while the diminished protections afforded to those accused of campus sexual assault has the potential to disproportionately affect poor, minority students.
Finding the balance between civil rights and civil liberties is a tough exercise. I cannot yet say how that balance should be struck in the context of campus sexual assault. The only way to move toward the right balance, however, is to comply with the proper, democratic process for rulemaking, and to avoid the use of overly politicized statistics or biased reporting to advance the cause. The skewing of a narrative to overemphasize victimization benefits neither the accused nor victims. Changing a campus culture to promote women’s sexual autonomy need not entail widening the definition of sexual misconduct and suppressing protected speech. Unfortunately, less extreme, fairer rules and procedures cannot be implemented when the narrative is shaped largely by one side.