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The White House and campus rape

Published on -1/28/2014, 12:31 PM

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On Wednesday, the White House announced it was launching a new federal task force to address sexual assault on college campuses. "I've got your back," the president said to the millions of American women (the White House report put the number at one in five) who are forced to have sex without their consent (the definition of rape) during their lifetimes. The president said an "inspiring wave of student-led activism" led to his decision, and said the task force would come back with recommendations in 90 days.

The activism has included complaints filed by women against a number of universities, including USC, where I have taught rape law for the last two decades.

"With one report, one public statement and the power of his office, President Obama just changed the course of sexual violence on campus," Professor Caroline Heldman of Occidental College, which, with her help, has been the target of complaints, proclaimed.

Not so fast.

Of course I'm delighted the president is paying attention to a problem I've been focused on for 30 years, since I first announced to a criminal law classroom at Harvard (as a professor no older than my students) I was a rape victim, and I was going to teach rape -- which, at the time, was not considered "interesting" or "important" enough to merit such attention.

Today, everybody considers it interesting and important. It's what to do about it that has proven so difficult.

Colleges are under attack for discouraging young women from coming forward to report campus rapes. I suppose the same could be said of me, although my motives certainly are not to protect the reputation of the college or the good name of the alleged perpetrator. When students come to see me and tell me their stories, as they've done in quite large numbers for the last 30 years, I am careful to walk a line between being fully supportive and painfully honest. Do I encourage them to report? Not necessarily. I leave it to them. I tell them the truth. I tell them the obstacles they will face: not the kind of knee-jerk sexism I faced in the back seat of a Boston police car in the 1970s, but the cold realities of what it takes to prove rape when the man is a classmate, someone you knew, someone you were voluntarily "partying" with or dancing and drinking with before things went way too far. Especially drinking.

No witnesses? There never are witnesses. Injuries? I certainly hope not. Did you go right to the police? Almost never. DNA evidence? The president's report has a long section about the scandal of rape kits that never are tested -- it is a scandal -- but it's also entirely irrelevant to most campus rape cases, where the women know exactly who the man was, and no one denies there was intercourse. The question is: How do you prove non-consent?

For a long time, I thought one important answer to the difficulties of proving non-consent beyond a reasonable doubt -- the standard for the deprivation of liberty -- was for colleges and universities, which police everything from plagiarism to parties, to take on the issue of sexual assault. Sure, we're talking about suspensions and expulsions, not prison terms, but that should make it somewhat easier to prove, lower the standard of proof.

But many colleges and universities who listened to me, and the many other advocates seeking such solutions, ran into trouble. After all, imagine it was your son who was being charged -- even if "only" in a college disciplinary proceeding -- with rape. Imagine what that would do to his future. Who wants to hire a rapist? Or admit him into graduate school? So parents, understandably, lawyered up, demanded procedural protections, even sued the universities or, worse still (I'll never forget this panicked phone call from a female student), sued the complainant for defamation.

"We've got to keep teaching young men in particular to show women the respect they deserve and to recognize sexual violence and be outraged by it, and to do their part to stop it from happening in the first place," the president said.

For sure. Educate. Most young men want to have sex, not commit rape. "Don't say no, say rape," I've been telling students for years. No might mean yes to some, but "rape" is a powerful word that means your life could be ruined.

Unless you're too drunk to say it, or hear it.

Some girls are victimized by "ruffies" -- drugs put in the punch that knock them out. But even more are victimized by plain old-fashioned alcohol. Campuses are dangerous places for sexual assault because of the out-of-control drinking you find on every campus in America. If the president's task force wants to deal with the problem of campus rape, then they should start with the problem of campus drinking.

Susan Estrich is a columnist,

commentator and law and political

science professor at USC.

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