Have college campuses welcomed a new generation of lynch mobs? It is a disturbing question raised recently by Harvard Law School Professor Janet Halley in the pages of the Harvard Law Review.
New home of the academic lynch mob?
Last November, Halley publicly critiqued Harvard’s new policy for handling accusations of sexual assault. Under pressure from the federal Office of Civil Rights, Harvard and many other schools, Halley charged, felt
immense pressure to decide flimsy, weak, doubtful and difficult cases favorably to complainants, or face the wrath of a government agency that can cut off all federal funding to the entire institution.
In her commentary in the Harvard Law Review, Halley takes her argument a step further. How can we decide cases of alleged sexual assault, Halley asks, when policy is decided more by emotion than by reason? As she asks, new policies at many schools include
a commitment to the idea that women should not and do not bear any responsibility for the bad things that happen to them when they are voluntarily drunk, stoned, or both. This commitment cuts women off — in theory and in application — from assuming agency about their own lives. Since when was that a feminist idea?
More disturbing, Halley raises the obvious but horrifying parallel. In America’s brutal history, there is plenty of precedent for what can happen when those accused of sexual assault have no legal right to defend themselves. We call it lynching. As a new report from the Equal Justice Initiative makes painfully clear, America’s white population often brutalized and murdered African American men on the merest whiff of accusations.
Is it hyperbole to suggest that today’s campus-rape rules threaten to bring back such lynch-mob mentalities? The danger, Professor Halley suggests, is that colleges are under intense pressure to convict someone accused of sexual assault, even if there is not enough evidence to do so. She cites a widely publicized case from Hobart and William Smith Colleges. In that case, the college decided that it did not have enough evidence to charge anyone with sexual assault, in spite of ample evidence that a rape had occurred.
Halley does not suggest that the victim was lying or making it up. But she worries that colleges will feel pressure to convict someone in such cases, even when there is not enough evidence to do so. In this case, Halley argues that the rush to bring justice for the victim blinds us to the rights of the accused. As she puts it,
the Colleges had to assign blame to one or more of their students despite their complete lack of direct evidence about which of them actually deserved it.
Halley wonders if such policies will bring lynching back. She writes,
American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women that become reverse scandals when it is revealed that the accused men were not wrongdoers at all.
These are difficult charges to hear, much less evaluate. After all, the more obvious moral challenge facing colleges is not the violent history of lynching, but the shameful history of ignoring the pleas of victims of sexual assault. For decades, universities—including the evangelical schools I’m studying these days—covered up campus rape in an ill-conceived quest to preserve their reputations as safe havens for young people.
Nevertheless, these are vital questions we must ask. Do Professor Halley’s worries have merit? Are colleges these days—in an understandable rush to correct past abuses—heading too far in the other direction? Must the rights of the accused be protected with the same vigor as the rights of the accuser?
I Love You but You're Going to Hell 
Patrick
/ February 26, 2015Though I’m not one to shy away from calling out institutional failures (and the cases Halley points to DO demonstrate that), I actually really agree with her concerns. While I do want to see justice come to the victim in the cases she mentioned (particularly the Hobart and William Smith case she mentions), I want to see that justice exacted on the actually guilty party, not on a scapegoat.
I think her comparison to lynchings, however, is hyperbolic, and even racist. Lynchings were by no means a case of the oppressed becoming the oppressor, but an institution designed to instill fear in what the culture deemed second class citizens. There were no scapegoats, no one to pin a crime on to create a facade of justice. Lynchings existed only as outright persecution of a minority group, and certainly carried no risk of the oppressed turning into the oppressor.
What we have with these sexual assault cases is a cautionary tale. We’re trying to right wrongs (as we should) and feminists have certainly done their part to expose the institution’s failures to bring equality to the sexes, whether in a court of law or in the workplace or wherever. Their work, however, is far from over. As Halley points out, denying the rights of the accused is far from being a feminist ideal, and while I consider impartiality to be a farce, it would do us well to remember that both plaintiff and defendant have equal rights under the law, and that it is more important that we pronounce guilt on the RIGHT person rather than just ANY person. We must desire justice, not blood.
Dan Knauss
/ March 2, 2015How are conservative religious colleges responding to this? Do they have an easy out if their default response would be to eject or otherwise punish the male student simply for any sexual activity that becomes public, and all the more so if it causes scandal — in contemporary and new testament sense?
Adam Laats
/ March 2, 2015Dan, You raise a very interesting point. Not only do conservative religious colleges tend to kick out students for infractions, but they tend NOT to have the same drinking, partying, binging culture of secular schools. On one hand, as I asked a while back, we might expect such schools to have FEWER cases of this kind of drunk hook-up assault. Yet on the other hand, we have solid recent confirmation that at least one fundamentalist school has done a terrible job of handling sexual assault. Anecdotally, commenters have suggested that the main problem with the ways conservative schools handle sexual assault is precisely because they blame the victims for encouraging the attackers.
Dan Knauss
/ March 3, 2015I would say they tend not to have the party culture in the same degree, but there is actually a lot of diversity due to regional and denominational differences, school sizes and their locations. In general I think the small conservative religious schools will be more likely nowadays to have a more vocal (on social media) but still peripheral sub-culture whose biggest events are semi-underground (usually far from campus) and even tolerated as long as there’s no blatant law breaking or nuisance activity.
Drunk hookup assaults must happen, but they might be more likely to happen with non-students and off-campus. If law enforcement is involved early, the school may not have a lot of influence on how things shake out. If the victim reports the assault after the fact and through the school, there are a lot of reasons why victim-blaming might happen. I suspect all schools have many image and money-focused incentives to hush things up, and that is what typically drives the victim-blaming everywhere. Female religious conservatives might also be more likely to accept that blame or be the first to propose it’s all their fault. When you’re taught to think that extended sexual thoughts are wrong, and that sexual activity as limited as kissing is wrong if you’re not married or at least engaged, people are already blaming themselves well before there’s any question of a crime having taken place.
A more unique situation might arise only at conservative religious colleges with a culture that encourages (many would say “presses”) students toward marriage before or by graduation (“ring before spring”). It must be hard for an outside observer to assess and respond to a possible assault involving a married or engaged couple, or a victim who thought she was in a relationship leading in that direction but later discovered otherwise.