Less than a month after Tyson’s conviction, the Supreme Court granted students the right to sue colleges and universities for monetary damages under Title IX, which prohibits sex discrimination in education. That gave immediate leverage to young women across the country—at the University of Southern California; Stanford University; University of California at Berkeley; University of Wisconsin; University of Michigan; Tufts; Cornell; Yale; Columbia—who had begun speaking out about campus sexual assault. Most famously, girls at Brown University, frustrated by the administration’s indifference, scrawled a list of alleged rapists on the walls of the women’s bathroom in the school library. (Boys later retaliated with their own list: “Women Who Need to Be Raped.”) Even after the walls were painted black as a deterrent, girls used white paint pens to keep the list going; at one point it swelled to thirty names.
Also during this period, the media began reporting on what was perceived as a sharp and shocking trend of “acquaintance rape” on campus. In December 1990 alone, the Washington Post revealed “The Statistic That No One Can Bear to Believe”; People ran a cover story on “a crime that too many colleges have ignored”; and Fox TV produced a documentary, Campus Rape: When No Means No. As evidence, many pointed to a 1987 study funded by the National Institute of Mental Health and conducted by Mary P. Koss, then a professor of psychology at Kent State University. Koss surveyed six thousand students at thirty-two universities and found that 27.5 percent—more than one in four—of the girls had, since the age of fourteen, experienced a sexual encounter fitting the legal definition of rape. Eighty-four percent of those attacks were committed by someone the girl knew; 57 percent took place on dates. That led Koss to coin the term date rape. When she factored in other forms of unwanted sexual activity (“fondling, kissing, or petting but not intercourse”), the victimization rate shot up to nearly 54 percent. Only a quarter of the boys surveyed admitted involvement in some form of sexual aggression; one in ten said they had verbally pressured a girl into intercourse; 3.3 percent had attempted physical force; and 4.4 percent had raped someone. None of those in the latter two categories considered their acts criminal, largely because they had faced no consequences. “They would say, ‘Yes, I held a woman down to have sex with her against her consent,’” Koss told NPR, “‘but that was definitely not rape.’” Sexual violence was so pervasive, Koss concluded, that it was part of what the culture defined as “normal” interaction between women and men.
Then came the backlash. In her 1993 polemic, The Morning After, Katie Roiphe, a telegenic graduate student in English literature at Princeton, dismissed the campus “rape crisis” as overblown. “If twenty-five percent of my women friends were really being raped, wouldn’t I know it?” she reasoned. Perhaps not, considering her main beef: the inclusion in Koss’s rape tally of those who answered yes to the question “Have you had sexual intercourse when you didn’t want to because a man gave you alcohol or drugs?” To Roiphe, “real” rape involved brute force. Silence alone did not indicate nonconsent; neither did incapacitation. It was a classic conservative argument, and one that endures to this day, but Roiphe gave it a contrarian, “feminist” spin: scolding campus activists for undermining the very agency with which the movement provided them. “A man may give [a woman] drugs,” she wrote, “but she herself decides to take them. If we assume that women are not all helpless and naïve, then they should be held responsible for their choice to drink or take drugs.” “Rape crisis” feminists, in other words, needed to pull up their Big Girl pants and deal with a few embarrassing nights. Roiphe rejected what she considered their attempt to expand rape’s definition as being “a way of interpreting,” “a way of seeing” rather than a “physical fact.” As if reinterpretation—of citizenship, of suffrage, of who may hold property, even of who are, themselves, property—is not at the core of women’s rights: it was just two months before Roiphe’s book was published, for instance, that all fifty states finally recognized marital rape as a crime.
Roiphe’s book grew out of an editorial in the New York Times, which also excerpted it on the cover of its Sunday Magazine. Other media outlets (Newsweek, The Atlantic, ABC, NBC, PBS) soon began churning out stories and programming on what was suddenly demoted to “the date rape controversy.” Few mentioned that even when Koss’s data were recalculated without the alcohol question, one in six women had still been legally raped. (To be fair, the statistic was often misstated by activists as the number of girls who would be raped while on campus, rather than since age fourteen, which is certainly horrifying enough.) When Roiphe lost her novelty, reporters turned to Camille Paglia, who proclaimed, “date rape is bullshit,” and Christina Hoff Sommers, currently a resident scholar at the right-wing American Enterprise Institute, whose book Who Stole Feminism accused Koss of “[opening] the door wide to regarding as a rape victim anyone who regretted her liaison of the previous night.” (Of course, by excluding alcohol-facilitated rape, Sommers herself would slam shut the door on “regarding as a rape victim” anyone who was penetrated while passed out drunk.)
By October 1993, campus antirape activism was so maligned that it became fodder for a notorious Saturday Night Live sketch, a mock game show called “Is It Date Rape?” Ostensibly set at Antioch College, it lampooned that school’s pioneering requirement that partners obtain a clear, verbal “yes” before engaging in sexual activity. Chris Farley, as a frat boy, squared off against Shannen Doherty, as a dowdy “Victimization Studies” major—yes, that’s funny—over categories such as “Halter Top,” “She Was Drunk,” “I Was Drunk,” “Kegger,” “Off-Campus Kegger,” and “Ragin’ Kegger.” Other cast members, wearing “Date Rape Players” T-shirts, acted out permissible interactions involving such stilted requests as “May I elevate the level of sexual intimacy by feeling your buttocks?” and “I sure had a nice time at that ragin’ kegger. May I kiss you on the mouth?” The implication was that the whole date rape thing had gone too far; a bunch of dour, unattractive feminists were trying to shut down the Animal House and ruin heterosexual sex. Days later, the New York Times, citing the sketch, weighed in with a staff editorial, scolding Antioch for inappropriately “legislating kisses.” Although the director of the school’s sexual offense prevention program responded in a letter to the editor that “We are not trying to reduce the romance, passion, or spontaneity of sex; we are trying to reduce the spontaneity of rape,” the damage was done. “Affirmative consent” (along with Antioch College) became little more than a punch line; date rape was quickly downgraded from “epidemic” to “controversy” to “hype,” and further outcry by advocates was essentially quashed. By November of that year, 17.8 million people, mostly teens, tuned in to Beverly Hills 90210 to see an episode in which Steve, the series’ resident goofball, “accidentally” raped a girl who never vocalized the word no. She ended up apologizing to him in front of a crowd at a Take Back the Night rally. The lesson learned? The “misunderstanding” was actually her own fault because, she said, “I didn’t say yes, but I didn’t say no, either.”
Love and War
Maddie loved Kyle. She did. She’d met him at a party just before her fifteenth birthday; he was a grade ahead of her at a different high school. The two hooked up—nothing serious, just a little kissing. He told her straight out that he liked another girl, though he was willing to be her “friend with benefits.” When she saw him at another party a few weeks later, after they’d both been drinking, they hooked up again. Again, they kissed a bit, but this time he informed her he couldn’t continue unless she gave him a blow job; otherwise he would develop “blue balls.” (Parents, take note: a number of girls I spoke with fell for that chestnut.) Maddie agreed: she had never gone down on a boy, but she already felt she was falling in love with Kyle, and she wanted to make him happy.
Nothing changed between them afterward. Instead, they fell into a pattern: when they saw each other at parties, they would make out, he might “finger” her (though not to orgasm), and she would give him a blow j
ob. They never went out on a date. They never met each other’s parents. She’d never even been to his house until they decided to have intercourse. Maddie was sixteen by then and wanted her first time to be with Kyle. They even bought condoms together beforehand, “like a real boyfriend and girlfriend.” She remembers the event itself as sweet, but uncomfortable and a little boring: “It hurt really badly for about two minutes, and then I mostly looked at my nails,” she told me. She was proud, though, to have had sex sober, during the day, in a bedroom, with someone she loved. Until, that is, a few weeks later, when she heard that Kyle was also having sex with someone else.
Maddie was livid. Her plot for revenge seemed ripped from a script of Gossip Girl: that weekend, she would go “looking all hot” to a party where she knew he’d be. And then? She would hook up with one of his friends. “I’m going to win!” she remembered thinking. Somehow, though, in a series of convoluted mishaps that don’t make sense to anyone over seventeen, she ended up at the wrong place—a houseful of seniors from a neighboring town, mostly boys, none of whom she knew well, all of whom had been drinking. One was a football player named Josh, who had been the sort-of boyfriend of a girl Maddie knew (“like a Kyle-and-me kind of thing”), toward whom he’d been “super abusive.” When she informed Josh that the girl had told her “a lot about him,” he scoffed. “Don’t listen to anything she says. She’s crazy!” Maddie remained polite but distant, making it clear (at least she thought) that she was uninterested. Somehow, though, word got around the party that the two were going to hook up.
“How did he get that message?” Maddie said when another boy asked her about the rumor. “I’m not going to hook up with him. He’s an asshole.”
The boy smirked. “Well, we’ll see after a couple of drinks.”
“What does that mean?” Maddie replied. “You can’t just say that stuff to girls!”
The boy laughed, holding up his hands. “I’m kidding!” he said.
Rape by the Numbers
Throughout the 1990s and early 2000s, research on campus assault quietly continued to accrue, as did skepticism about the results. Using the narrowest definition of rape—as involving physical force—most studies found an annual incidence of between 3 and 5 percent. That is not one in four or even the more recently asserted one in five. Still, given that according to the Census Bureau, there were 4.6 million female full-time undergraduates at four-year institutions in 2013, it would mean that between 138,000 and 230,000 were raped each year—not so comforting. What’s more, that conservative definition is no longer employed by such notoriously radical feminist cabals as, say, the FBI, which as of 2013 defined rape as “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” (That revised definition, incidentally, does not assume the victim is female.)
In 2015 two significant reports came out that should (but probably won’t) put an end to all the squabbling. The Association of American Universities’ Campus Climate Survey, comprised of over 150,000 students, found that a third of female undergraduate respondents had been victims of nonconsensual sexual contact. Meanwhile, sociologists Jessie Ford and Paula England analyzed assault rates among seniors who had participated in the Online College Social Life Survey. Unlike the AAU report, Ford and England focused solely on acts of intercourse or attempted intercourse—they did not include the incidents of unwanted touching, oral sex, or psychological coercion that critics insist unfairly pad the numbers. Ten percent of the girls said they had been physically forced to have sex since starting college; 15 percent said that someone had tried to physically force them, but that they had escaped without having intercourse (the survey didn’t ask whether they had been forced into other acts instead); 11 percent reported someone had unwanted intercourse with them while they were “drunk, passed out, asleep, drugged, or otherwise incapacitated”; and 25 percent reported at least one of these things had happened to them. Including the types of assaults while intoxicated that Roiphe, Paglia, Sommers, and their supporters (if not the criminal justice system) reject, that brings us back to one in four.
Since 1990, colleges and universities have been legally obliged to report to the Department of Education all crimes occurring on or near campus. Those that don’t can lose federal financial aid funding, something few schools, no matter how well endowed, can afford. The impetus for that was the rape and murder of nineteen-year-old Jeanne Clery in her Lehigh University dorm room. Clery’s parents later learned that there had been multiple violent crimes at the school over the previous three years, but with no consistent tracking policy, students were left oblivious, overestimating their safety on campus. Clery’s attacker, who was not a student, had passed through three doors equipped with automatic locks, all of which had been propped open with boxes by dorm residents. Despite that, sanctions for fudging crime stats remained rare, and given that high rates of rape are not a big selling point for prospective students, it’s probably not surprising that by 2006, 77 percent of campuses reported their number of sexual assaults at an implausible zero.
That, however, will no longer cut it. In 2011, Russlynn Ali, Obama’s new assistant secretary for civil rights, fired off a nineteen-page “Dear Colleague” letter reminding campus officials of their responsibility to uphold all aspects of Title IX, including those involving sexual harassment and violence. Along with a mandate to resolve cases quickly and ensure the physical and psychological safety of accusers (rearranging the class schedule of the accused or removing him from the alleged victim’s dorm), the letter laid down a new, reduced burden of proof: “a preponderance of evidence,” typically used in civil cases, rather than the more demanding “clear and convincing evidence” then being used on many campuses. More controversy ensued, with conservative activists denouncing the standard as too low given the seriousness of the crime and the potential stigmatization of the accused. The thing is, though, as legal blogger Michael Dorf has written, the lower burden of proof in civil court is not based on either a crime’s brutality or its potential to defame the perpetrator, but on the nature of the punishment: so someone such as O.J. Simpson could be found not guilty of murder by the standards of criminal court, where life in prison was at stake, but guilty in civil court where the penalty was solely to the pocketbook. Given, then, that colleges expel or suspend rather than jail rapists, “a preponderance of evidence” standard is, in fact, reasonable.
The Department of Education’s warning roiled the academic world. As with the right to sue for monetary damages in the 1990s, it also galvanized female students, who no longer needed traditional media to champion their cause: they had the Internet. In 2012, Angie Epifano, a former student at Amherst, published a signed editorial in the school newspaper about college administrators’ callous response to her rape allegations. The detailed description of a skeptical sexual assault counselor, her subsequent suicidal depression, a stint in a psych ward, and her ultimate withdrawal from school went viral, generating more than 750,000 page views. “Silence has the rusty taste of shame,” she declared. “I will not be quiet.” Soon a national movement began to form—activists, often assault survivors themselves, at Amherst, the University of North Carolina, Tufts, Yale, Berkeley—all connecting through social media. That caught the attention of the mainstream press. This round, the New York Times seemed all in: running, among other stories, front-page pieces on the student activists and on the White House initiatives; an account in the Sunday Review section by a University of Virginia rape survivor about the lax punishment meted out to her assailant; and numerous opinion pieces and online debates on institutional responsibility, alcohol abuse, the underreporting of assault, and the dubious culture of fraternities and sports teams. The paper also profiled Emma Sulkowicz, a senior at Columbia University who had vowed to lug a fifty-pound dormitory mattress on her back everywhere she went during the 2014/15 school year until the boy she accused of raping her—who had been f
ound “not responsible”—was expelled. (He filed a suit against the university, claiming the administration’s failure to protect him from Sulkowicz’s accusations, which he said destroyed his college experience and reputation.) Some hailed Sulkowicz as a hero; others called her unhinged. Regardless, it is clear that public witness bearing—rejecting traditional anonymity with its attendant assumption of shame—had become girls’ best weapon in the fight against rape.
By the spring of 2015 more than a hundred colleges were under investigation for possible mishandling of sexual assault cases. Among them were the most prestigious in the country: Amherst, Brandeis, Dartmouth, Emerson, Emory, Hampshire, Harvard (the college and the law school), Princeton, Sarah Lawrence, Stanford, Swarthmore, the University of California–Berkeley, the University of Chicago, the University of Michigan–Ann Arbor, the University of North Carolina at Chapel Hill, the University of Southern California, the University of Virginia, and Vanderbilt. Will those inquiries make a difference? It’s hard to say. The number of reported campus sexual assaults nearly doubled between 2009 and 2013, from 3,264 to 6,016. Although that wouldn’t seem like good news, it is: rather than an increase in the incidence of rapes, the rise appears to reflect a new willingness of victims to step forward, a new belief that they will be heard. The key may be to keep the bright light of public attention shining. According to a study by the American Psychological Association, the reported numbers of assaults increase an average of about 44 percent when campuses are under formal scrutiny. Afterward, though, they sink back to their original levels, indicating that some schools provide a more accurate picture of sexual assault only when forced to do so.
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