The Best American Magazine Writing 2015

by The American Society of Magazine Editors

  Reported sexual assaults have been rising on campus in recent years, at a time when other campus crime is declining. (The nation as a whole has experienced a dramatic drop in all violent crime over the past few decades, including sexual assault, which is down more than 60 percent since 1995.) The rise of reporting on campus sexual assault is generally described by security experts as a function of a greater willingness on the part of women to make complaints, not an increase in incidence. Despite reports of “soaring” sexual assault rates on campus, the raw numbers remain low. At the University of Chicago, the jump from 2011 to 2013 was 83 percent: an increase from six reports to eleven, which represents 0.4 percent of the university’s undergraduate women. Carnegie Mellon went up 220 percent, from five cases to sixteen, or 0.6 percent of the university’s undergraduate women. President Obama has asserted that only about 12 percent of sexual assault victims make a report to authorities. If he is correct, and we extrapolate from the Clery numbers, that would suggest there were 32,500 assaults in 2012, reported and not, or a 0.27 percent incidence.

  A widely held belief about a college man accused of sexual assault is that he is likely a serial predator. This is a result of the work of David Lisak, one of the most influential experts on sexual assault in the country. “College presidents don’t like to hear this, but these are sex offenders,” Lisak said at an event at Harvard in 2013. “Every report should be viewed and treated as an opportunity to identify a serial rapist.”

  Lisak retired not long ago after more than two decades of teaching psychology at the University of Massachusetts Boston. He remains a consultant to universities, the military, and other institutions on sexual assault. His 2002 paper, “Repeat Rape and Multiple Offending Among Undetected Rapists,” is a foundational study in the movement to curb campus sexual assault. It’s cited endlessly, by everyone from President Obama to college faculty members to student activists. It’s even cited by critics of the new campus sexual assault policies.

  Lisak told me that he meets understandable resistance when delivering his message to college administrators. “It’s hard to think of any of your students as a sex offender,” he said. “But the data are pretty clear. They’re not a large group. It’s a fairly small percentage, but their behavior is really consistent with everything we know about sex offenders.”

  In a 2011 article in Sexual Assault Report, Lisak disparaged “the widely-held view that sexual assaults committed on university campuses are typically the result of a basically ‘decent’ young man who, were it not for too much alcohol and too little communication, would never do such a thing.” (He concedes that “some campus sexual assaults do fit this more benign view.”) Instead, he asserts that the vast majority of sexual assaults on campus, more than 90 percent of them, are perpetrated by serial offenders. His work, he says, shows that these offenders are relentless, averaging six rape victims each. “They’ve perfected ways of identifying who on campus, for example, are most vulnerable.” In the 2011 article, he wrote that these “predators” were “serial and multifaceted offenders” who “plan and premeditate their attacks” and that various prevention education programs are unlikely to be effective because “it is extremely difficult to change the behavior of a serial predator even when you incarcerate him and subject him to an intensive, multi-year treatment program.”

  For the 2002 study, Lisak found 120 men, or 6.4 percent of respondents, “met criteria for rape or attempted rape,” with 80 percent of that group admitting that they took advantage of an unwilling partner’s intoxication. Of the 120, about one-third said they’d committed a single rape, and 76 men, or 63 percent, admitted to multiple offenses. Lisak calculated an average of 5.8 rapes each for these repeat offenders.

  Based on these findings, Lisak says it’s likely that any young man who is accused of sexual misconduct on campus is a serial predator. He told me he arrived at this conclusion by calculating the number of rapes the self-admitted serial attackers said they perpetrated. Those rapes represented 90 percent of the total acknowledged rapes in his study.

  The 2002 study is now frequently used to portray college students, some still teenagers, as among society’s most ruthless and sadistic predators. And yet the limitations of the study are such that it cannot fairly be said to describe the behavior of the majority of young men who find themselves accused. To start, though the study was of college men, it was not of college-age men (who are traditionally ages 18 to 24). Lisak’s participants ranged in age from 18 to 71. The average age of his respondents was 26.5, and more than 20 percent were older than 30. How does a study of men in college include so many older men? Lisak recruited people from where he taught, the University of Massachusetts Boston, an urban commuter school with no campus housing. Many students are older working people returning to or just starting college. Currently, 30 percent of its students attend part time and the school’s four-year graduation rate is 15 percent. By comparison, at the state’s flagship university in Amherst, 7 percent of students are enrolled part time and its four-year graduation rate is 60 percent.

  I spoke with James J. Cochran, professor of applied statistics at the University of Alabama. He said that because the population of male students at UMass Boston may differ in important ways from the population of male college students across all universities, we must be careful in generalizing results from the UMass Boston sample to the population of male college students across all universities. People tend to think that a single study is definitive, Cochran told me. But generally what a single study tells you, he said, is that we have “evidence of something interesting, let’s study it more.” (The “Campus Sexual Assault Study” also attempted to identify male perpetrators. Lead author Christopher Krebs said a “shockingly low” number of college-age men in his study acknowledged committing sexual assault. The researchers surveyed 1,375 male students and 34, or 2.5 percent, “reported perpetrating any type of sexual assault,” the majority involving incapacitation.)

  Lisak conducted the study between 1991 to 1998, at several-year intervals, setting up tables on campus, where he offered men three or four dollars to complete a study on “childhood experiences and adult functioning.” In all, Lisak and his coauthor recruited 1,882 participants (the school had a total of about 5,800 male students during this period). Lisak and his coauthor wrote: “Because of the non-random nature of the sampling procedures, the reported data cannot be interpreted as estimates of the prevalence of sexual and other acts of violence.” I asked Lisak about this caveat in an interview and he said, “That’s a standard disclaimer for any study.” But he also acknowledged that the only way to find out if his population differed from the usual typical student population would be to replicate his study at a more traditional campus.

  Lisak deserves credit for identifying a type of stealthy predator who evades law enforcement. Such men exist, are dangerous, and should be prosecuted for their crimes. But describing such people does not mean that they constitute the entire universe of college men who find themselves accused of sexual misconduct. That, however, is how his work and his public comments are frequently used. Here’s Yale Law professor Jed Rubenfeld, writing last month on campus sexual assault in the New York Times: “Research suggests that more than 90 percent of campus rapes are committed by a relatively small percentage of college men—possibly as few as 4 percent—who rape repeatedly, averaging six victims each.”

  Lisak told me he continues to dispute the view, held by some college administrators, that the majority of campus sexual assault disputes are the result of drunken miscommunication. I asked Lisak what percentage of reported sexual misconduct is of this less predatory type. “There’s no way I can answer,” he said. “Not that it never occurs; it does. I think a lot of college administrators think that is the norm. That’s what I really dispute.”

  I asked Lisak whether it was fair to presume any given accused student is a serial predator. He said such a supposition would be “sloppy thinking.” He went on: “You have to investigate t
he assault and who the individual is. Everything hinges on the investigation.” He also said that a major problem with adjudicating campus sexual assault is how ill equipped universities are to conduct such investigations.

  The potential for misuse of Lisak’s study can be seen in the 2013 case of the Occidental College student “John Doe,” who brought a suit against the school after he was expelled for a sexual encounter with “Jane Doe,” in September of his freshman year. The Los Angeles Times summed up the events: “The college’s investigative report, performed by an outside firm, said both parties agreed on the following facts: Both had been drinking, she went to his room, took off her shirt while dancing, made out with him and returned to his room later for sex, asking if he had a condom. When friends stopped by the room to ask if she was OK, she told them yes.” Prior to their encounter, the two exchanged texts about their planned assignation, and Jane texted another friend to announce she was going to have sex. Later, when Jane came to see the incident as rape, she reported it to the Los Angeles Police Department. A female LAPD officer investigated and a female deputy district attorney declined to pursue the case. She wrote, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment.” Her report further found that Jane was capable of resisting and that John had reasonably concluded that her communications and actions conveyed consent.

  But Jane ended up being convinced that John fit the pattern of the kind of serial predator Lisak describes. John had the misfortune of being accused of sexual misconduct following the filing, by attorney Gloria Allred, of a Title IX violation complaint against the school, charging lax punishment for serial offenders. And Jane ended up being counseled by the assistant professor of sociology Danielle Dirks, a prime mover behind the Title IX filing and a nationally prominent activist on campus sexual assault.

  Jane lost her virginity that night, and when she sobered up and realized what happened, in distress she went to a faculty adviser who referred her to Dirks. An eighty-two-page investigative report prepared for the school by the firm Public Interest Investigations shows it was Dirks, in her first phone conversation with Jane, who introduced Jane to the idea that she had been raped. Jane told the professor, “Oh, I am not calling it rape yet.” Over many hours of conversation, Dirks helped move Jane from what the professor described as Jane’s “strong state of denial” about what happened.

  The report notes that Jane “stated that she has learned that 90 percent of rapes are done by repeat offenders.” (John was a freshman, on campus for a few weeks, with no complaints against him.) Jane told Dirks that John had expressed regret that she lost her virginity that way—he hadn’t known she was a virgin—and when she was absent from a class they took together, he texted to make sure she was all right. The professor had a skeptical view of his behavior. All this was “disingenuous,” said Dirks, according to the report: It was typical of rapists who, she said, try to control, dominate, manage, and manipulate. Strikingly, it was Dirks herself who initiated proceedings to get John removed from campus, explaining, “I know how jarring it is for me to see him on campus, so how is it for Jane?” (An Occidental spokesman said he could not comment on a pending lawsuit. Dirks said in an e-mail that the report “contains factual errors regarding my involvement in the case.” However, beyond disputing a statement attributed to her by Jane and not quoted here, she declined to elaborate on what the errors are.)

  Occidental hired an outside attorney to review the investigative report and make a recommendation about John. Here’s the conclusion of the attorney, as reported by the Los Angeles Times: “The attorney, Marilou F. Mirkovich, found that the young man did not know that his classmate was too drunk to consent because he, too, was inebriated. But, citing the college’s policy that does not allow alcohol or drug consumption to excuse sexual misconduct, Mirkovich found that he should have known and was responsible for the assault.” After only a few months as a college student, John was expelled. He told the Los Angeles Times the whole experience has been “soul-crushing.” John has since been unable to enroll in another college.

  5. The Federal Government Steps Up

  Much of what’s happening on campuses today regarding the handling of sexual assault is due to the rise of a small, once-obscure arm of the federal government. The Department of Education’s Office for Civil Rights dictates to colleges the procedures they must follow in regard to campus sexual complaints. It also examines schools for violations of Title IX, the law that forbids discrimination in education on the basis of sex. In recent years, OCR has used Title IX, best known for tackling imbalances in athletics, as a tool to address sexual violence. When OCR issues findings against a school, if the school declines to admit wrongdoing, the office has the power, as yet unexercised, to essentially shut the school down.

  In 2011, OCR released what’s come to be known as the “Dear Colleague” letter. It called for new procedures to be put in place for handling sexual assault allegations at colleges and universities receiving federal funds (virtually all of them). The federal office had to act, it said, because “the likelihood that [female students] will be assaulted by the time they graduate is significant.” It asserted the process should be equitable and impartial. But it laid out procedures that privilege the rights of victims over those of the accused. It recommended schools provide “comprehensive, holistic victim services including medical, counseling and academic support services, such as tutoring” for the accuser, without describing any services that should be available to help the accused navigate a pervasively adversarial process. If a school allowed the accused to appeal a verdict of responsibility for sexual misconduct, then an accuser also got to appeal if the accused was found not responsible. This provision meant someone accused of a campus sexual assault could find himself sitting through a second tribunal on the same charge.

  Among the most significant changes described by the Dear Colleague letter was the requirement that schools lower the standard by which they judge whether a student is responsible for sexual assault. (There is no uniform definition of sexual assault on campus. Because these are civil, not criminal proceedings, what constitutes sexual misconduct can vary widely from campus to campus.) Colleges were told to adopt a “preponderance of evidence” standard when evaluating whether a student was to be found responsible for an allegation. This is the lowest evidentiary standard, only requiring a smidge more than 50 percent certainty. Because the punishment for such infractions can be severe—from suspension to expulsion—many schools had previously used the “clear and convincing evidence” standard, a significantly higher burden of proof, though still below the “beyond a reasonable doubt” standard used in criminal proceedings. (The University of Michigan, in its legal motion to dismiss Drew Sterrett’s case, specifically noted the findings against Sterrett met the preponderance of evidence standard.)

  Legal protections granted students at public and private institutions are somewhat different. A public university, as a government entity, must provide certain due process rights. Students at private schools do not have this protection, but they do have contractual rights, and virtually all students are covered by Title IX. To head off concerns about significantly lowering evidentiary standards, the OCR asserted that because a campus tribunal’s worst punishment is expulsion, not imprisonment, “the same procedural protections and legal standards are not required” as in a criminal case.

  “Not Alone,” billed as “The First Report of the White House Task Force to Protect Students From Sexual Assault,” was released to great fanfare at the White House in April, and it outlined how OCR would help implement the report’s stated goals. “Not Alone” encouraged schools to consider adopting a “single-investigator” model—as Harvard has done—in which a sole administrator is tasked with being investigator, prosecutor, judge, and jury in sexual assault cases. Since that person would work at the school’s Title IX office, which is tasked with keeping the sch
ool off the list of those being scrutinized by the federal government, impartiality may not be that person’s first imperative.

  Being investigated by OCR for a Title IX violation places a college on a growing federal list of shame, now eighty-eight schools long. Even more disastrous is standing up to OCR. The agency has the power to pull a school’s federal funding, essentially putting a school out of business—ask Tufts University if they’re willing to use it. A female Tufts student had accused a former boyfriend of rape, and after he was cleared (and the female student sanctioned for misleading campus authorities in the course of their investigation), she brought a Title IX complaint against the school. OCR’s mandate was to look at Tufts’s procedural deficiencies, not the finding in the case, and it criticized Tufts at length. The university agreed to make all the OCR’s recommended changes: to improve its protections for accusers and speed up its resolution process, among other things. The school also agreed to give a monetary settlement to the female student. But Tufts balked at signing off on OCR’s finding that the school was a Title IX violator. It issued a statement saying the school “could not, in good faith, allow our community to believe that we are not in compliance with such an important law.” In response, OCR told Tufts it would pull the university’s federal funds, a threat, the Boston Globe wrote, that was “so catastrophic that it virtually required Tufts to reach some understanding with the government.” It took only a few days for Tufts to cave.