Thursday, October 31, 2013

Why the Semantics of Rape Matter

In December of 2011, the FBI amended its definition of rape from "the carnal knowledge of a female, forcibly and against her will," to "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." Phrases like "carnal knowledge" and the insistence that rape victims must be female might suggest the outdated definition’s antiquity—in fact, it had stood since 1927.

How rape is defined is an issue with consequences that go beyond the merely semantic. Consider, for example, this recent post on the gulf between the prevalence of sexual assaults as reported by researchers like Mary Koss (who found that 1 in 4 women are the victims of rape or attempted rape before leaving college) and as reported by the FBI, which, in 2012, reported 26.7 forcible rapes per 100,000 inhabitants. The discrepancy can be attributed, at least in part, to how each study defined terms like "rape" and "sexual assault."

The FBI’s new definition will apply to how it collects and reports statistics like the ones quoted above—those regarding the incidence of rape. According to Attorney General Eric Holder, "This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes." Indeed, an emphasis on penile-vaginal penetration and the use of force limits what acts are counted as rape. With that in mind, it is particularly alarming to realize that for 84 years the FBI was using a definition of rape that didn’t include date rape or rape involving a male victim, perpetuating the myth that rape is only committed by strangers who jump out of the bushes.

The real-world consequences of how rape is defined make the history of the word itself both significant and instructive. Our English word "rape" is derived from the Latin raptus or rapere.  Its first appearance in British law refers not to any sort of sexual assault, but instead to violent theft of property. That linguistic connection is no coincidence. In the 19th century restitution for a rape resulting in pregnancy was paid not to the victim but to her father, and the rape of a woman by her husband was not recognized as a crime until the latter half of the 20th century. The conceptualization of rape as an attack on a woman, instead of the appropriation of the commodity that is her chastity, is a shift that has taken too long to come.

Today, a long-overdue shift in the way we define and conceive of rape is occurring, evidenced by the FBI’s updated definition. The FBI’s old definition bears no small resemblance to the English common law definition of rape: "carnal knowledge of a woman, forcibly and against her will."  Matthew Lyon, writing for the Journal of Criminal Law and Criminology, parses this definition into three elements: "intercourse, force, and lack of consent." Now that women are widely viewed as people instead of property, the most important change in the way we define rape today is the shifting emphasis from the second element of that ancient definition, force, to the third, lack of consent.

That shift is obvious in the new FBI definition, which notably makes no reference to force.  It also has important legal consequences. At one time many states required rape victims to prove a certain degree of physical resistance beyond a reasonable doubt in order to secure a conviction—so as to prove that force was involved in the sexual assault.  Thanks to rape’s shifting definition, many states have loosened or, in some cases, completely removed the requirement for "rigid resistance" on the part of the victim—a positive outcome, given recent research suggesting that for many sexual assault victims, physical resistance of any kind becomes physically impossible once the assault is initiated. 

Similarly, thanks to the new found emphasis on consent (or rather the lack thereof) as opposed to force, certain states have begun to define the post-penetration continuation of intercourse after consent has been withdrawn as rape. Previously, it was widely held that once a woman gave consent and penetration had occurred, there was, at least legally, no turning back. Emphasizing consent over force, however, leads logically to a different conclusion. Consent can be withdrawn at any time and once it has continued intercourse becomes rape.

The blunders of insensitive politicians have brought notoriety and national attention to the issue. In 2008, Tennessee Senator Douglas Henry declared that rape today "is not what rape was." He elaborated, saying that, "Rape, when I was learning these things, was the violation of a chaste woman, against her will, by some party not her spouse." In an even more infamous incident, former Rep. Todd Akin claimed last year that, "If it's a legitimate rape, the female body has ways to try to shut that whole thing down." Such gaffes point to the suspicion with which many still view a definition of rape based on lack of consent as opposed to the use of force.  That such gaffes are being made by people who hold positions of significant power points to what is at stake in this ongoing debate.

In fact, as recently as 2011, the No Taxpayer Funding for Abortion Act, which, as its name might suggest, would have banned federal subsidization of abortions, made exception specifically for cases of "forcible rape." The distinction raised an outcry from women’s group, who pointed out that such language could exclude victims of date rape or statutory rape. "Forcible" was eventually removed from the bill, although it still failed to pass the Senate.

A common refrain of activists opposed to that particular qualification was that "rape is rape." However, even as rape’s meaning has shifted to focus on a lack of consent, a whole host of qualifiers has sprung up, often to make the distinction between rape that involves force and rape that doesn’t.  Date, statutory, legitimate, forcible, gray, the list goes on and on. The question is whether those qualifiers clarify, or merely diminish? To which one might answer that the definition of "rape" is not merely semantic for the victims.

Tuesday, October 29, 2013

Rewriting the College Hook-Up Script

Popular media makes it seem like college today is more like the seamier corners of a Las Vegas club than the ivy-clad, brick-edifice institution of yore.  Students today, it seems, are more likely to hit the bottle than the books and more likely to get a booty call than a phone call.

But college life isn't one big party as our media often portrays it. Indeed, the sensational portraits of college depravity, however well intended, might be doing more harm than good by reinforcing students' misconceptions about college life.

Let's take a look at some popular misconceptions about "hook up" culture, how they might be hurting our students, and how we can confront these misconceptions to enable students to rewrite the hook-up script.

Are Millennials are more sexually active than past generations?

Hook up culture is often portrayed as the crisis of the current generation of college students. The internet is full of accounts of the collapse of morality on college campuses. But scholars who study hook up culture trace its roots back forty years or more.

In her book on campus sexual culture, "Hooking Up," Kathleen Bogle suggests that the shift to hook up culture was already underway by the mid-1970s. She believes hook up culture arose out of the turmoil of the wider cultural and demographic changes of the 60s. In that regard, it's something that both current students and their parents experienced.

Other researchers put the origins in the early 1920s, when "with the rise of automobile use and novel entertainment venues...traditional models of courting under parental supervision began to fade" (Garcia et al.). Now we're talking four generations of hook-up culture!

Indeed, a study presented this year at the American Sociological Association's annual meeting found little change in college students' behaviors or attitudes regarding sex in the last 25 years.

The study compared the answers of two batches of college students, 1988-1996 and 2002-2010, on the General Social Survey. Attitudes and behaviors between the two groups were quite similar. For example, 65% of the first group reported having sex at least once a week compared to 59.3% of the second group. Attitudes regarding sex between minors, cheating on a spouse, and premarital sex also remained largely unchanged.

The researchers concluded, "[o]ur results provide no evidence that there has been a sea change in the sexual behavior of college students or that there has been a significant liberalization of attitudes towards sex."

Is everyone is hooking up?

This summer, the New York Times published a controversial trend piece by Kate Taylor. Taylor reported that campus hookup culture was increasingly driven by young women, who were intent on "building their résumés, not finding boyfriends." In other words, it's not just men who are driving hook up culture: everyone's doing it.

But while hook ups may dominate discussions about campus culture, not everyone is actually hooking up.

Indeed, according to the most recent American College Health Association Survey, over a third of college students have never had sex. And while 46% have had sex in the past month, the vast majority of sexually active students have only had one sexual partner in the past 12 months. In fact, 47% of college students reported being in a relationship.

That doesn't sound like students intent on casual sex and one-night stands.

Why do we talk about hook up culture so much then?

Lisa Wade, a sociologist at Occidental college, suggests that it might have to do with who is hooking
up: white, wealthy, heterosexual students. The status that these students' race, class, and sexual orientation confer allows them and their habits to dominate national discussions of campus culture.

"Students feel that a hookup culture dominates their colleges not because it is actually widely embraced," Wade writes, "but because the people with the most power to shape campus culture like it that way."

Indeed, contrary to Taylor's piece in the Times, Kathleen Bogle found that hook up culture was driven by men. In their interviews with Bogle, women were far less satisfied with hook up culture than their male peers.

In general, women preferred relationships, whereas men preferred casual encounters.

Bogle offered two reasons for this difference. First, the women she interviewed were interested in getting married earlier than the men. Thus many women were actively looking for a long term relationship that might result in marriage. The men simply weren't.

Bogle also pointed to a persistent double standard in campus sexual culture. While men were praised for being promiscuous, women were stigmatized. If they behaved like men and pursued multiple partners, women risked earning derogatory labels like "slut." Indeed, many men confessed that they wouldn't date a woman who had had many sexual partners. Thus in order to protect their reputations, women sought out stable relationships.

So not everyone is hooking up and not everyone wants to. Instead the hook-up elites are imposing a hegemony over campus sexual culture.

What we talk about when we talk about hooking up

The problem with these misconceptions is that they make hook up culture seem inevitable. Indeed, when we press too hard on the prevalence of hook up culture, we might be sending students mixed messages.

On the one hand, we imply that students are randy and oversexed.  We insist that hook ups and no-strings-attached sex are endemic to college campuses.

On the other hand, we blandly tell students that they overestimate how much sex their peers are having.

Which message do you think students will remember?

If the vivid image of a college free-for-all is what sticks in students' mind, then we may be doing
them a disservice.

Students do tend to overestimate their peers' sexual activity, making the behavior of a few outliers (the hook up elites) appear to be the social norm. Students then turn to these social norms to guide their own behavior, reinforcing hook up culture. 

It is possible that by talking so much about hook up culture (even when condemning it) that we inadvertently reinforce the idea that the outliers are the social norm, that everyone really is hooking up.

Instead of just condemning hook up culture, we need to offer some alternatives. Or better yet, we need to elicit some alternatives from students themselves.

Rewriting the hook up script

According to Bogle, hook up culture is a social script: a set of cultural and social expectations surrounding dating that students internalize and follow. Bogle contrasts the hook up script with earlier social scripts, such as "courting" or "going steady," which were the products of different social and demographic conditions.

Rather than just trying to correct students' perceptions of their peers' behavior or point to the flaws of hooking up, perhaps we might engage with students to write new social scripts, in order to get them involved in rewriting hook up culture.

What might that script look like? It's hard to say. But it can start with conversations about dating, asking what men and women want to get out of their college experience and whether that includes meaningful intimate relationships.

In fact, research suggests that some women pursue hook ups because the risks of a causal encounter are actually less than those of a long-term relationship: "Bad hook ups are isolated events, while bad relationships wreak havoc with whole lives."

The conversation about hook up culture can begin with freshman orientation, and it can continue in classrooms from gender studies to philosophy.

Getting students to see the fact and fiction of campus culture is a laudable goal. Getting them to understand that they aren't simply passive subjects of culture, but active agents who can change it has the potential to make a real impact on campus life.

Students can be so intent on changing the world that they fail to see the change that needs to happen right around them.

There's a well-known parable about two young fish swimming in the sea. An older fish swims up and asks, "How's the water?" After the older fish swims away, one young fish turns to the other and asks, "What's water?"

The point is, students are so immersed in the culture that surrounds them, they don't even know it's there. But it is. And it affects them. Unlike the two fish, however, students have the chance to find new waters.

Start a conversation with students and keep it going. Help them replace the hook-up culture myth with the script that fits their reality.

Awareness is the first step towards changing the "water" around us...some students may not even know they're drowning in it.


Works Cited

Bogle, K.A. (2008) Hooking Up: Sex, Dating, and Relationships on Campus. New York: New York UP.

Garcia, J.R., et al. (2012) "Sexual Hookup Culture: A Review." Review of General Psychology, 16, 161-176.

Wednesday, October 23, 2013

The Neurobiology of Sexual Assault

In our ongoing coverage of federal investigations of the University of Montana’s response to sexual assault, we reported on a case in which a UM official overturned a previous ruling against a student accused of sexual assault because he believed that certain statements made by the victim were “hesitant and equivocal.”  The deciding factor?  Her use of the phrases “I think” and “I don’t think” when describing the assault.  The official in question determined that those phrases undermined the victim’s credibility, and as a result overturned the previous ruling against her alleged assailant.

The UM case may seem extreme, but researchers suggest that the perceived credibility of the victim of a sexual assault is often the deciding factor in whether or not the assault is prosecuted or even investigated.  Dr. Rebecca Campbell, professor of Psychology and Program Evaluation at Michigan State University and an expert in victimology, especially as it applies to victims of sexual assault, found that 86% of sexual assaults reported to police are never referred to prosecutors.  Moreover, through extensive interviews with both law enforcement and victims, Dr. Campbell determined that the perception of a victim’s credibility (or lack thereof) is often an important contributing factor to the failure to refer these cases to prosecutors.  She quotes law enforcement officials who told her “The stuff (sexual assault victims) say makes no sense,” “I see them hedge, making it up as they go along,” and “They can’t get their story straight.”

Such attitudes not only contribute to case attrition, they discourage victims from reporting sexual assaults in the first place because they don't want to subject themselves to the "secondary trauma" of not being believed. 

Failure to report sexual assault is itself a serious problem, starkly illustrated in this recent post exploring the origins of the oft-quoted statistic that 1 in 4 women are sexually assaulted before graduating from college.  That alarming number is even more disturbing when considered in light of researchers' estimates that less than five percent of attempted and completed sexual assaults of college students are reported.  Which is why new research by Dr. Campbell on the neurobiology of victim’s response to the trauma of sexual assault has the potential to dramatically improve the handling of sexual assault cases.

Dr. Campbell’s research suggests that the hesitancy or even inconsistency with which survivors report sexual assault may have nothing to do with their veracity and everything to do with the brain’s natural response to physical trauma.  Such trauma results in the brain releasing a flood of hormones during the assault.  While those hormones may facilitate fight or flight, they are less beneficial to the process of creating memories.  The two structures in the brain responsible for memory creation, the hippocampus and the amygdala, are both highly sensitive to fluctuations in hormone levels. 

The flood of hormones triggered by a sexual assault can lead to the victim's memory of the trauma being fragmented and difficult to recall.  This, in turn, leads to the confusion and hesitancy that law enforcement officials are trained to interpret as clues of dishonesty.  The problem is only compounded by inebriation, a particularly troubling complication given the fact that 70% of sexual assault victims have been drinking at the time of their assault.

Dr. Campbell’s research has other important implications for professionals dealing with reports of sexual assault.  Those who deal with victims of sexual assault, as well as victims themselves, are often confused by the flat or emotionless affect survivors sometimes display immediately after an assault.  Such a reaction strikes many as being inappropriate for a person who has just undergone a traumatic experience.  It may lead victims to feel guilty, and others to doubt whether they're telling the truth.

Dr. Campbell, however, explains that such a reaction is not a symptom of dishonesty or a sign that a victim is somehow culpable in their own assault, but instead the consequence of natural painkillers released by the human body in response to physical trauma.  During an assault the body releases opiates to block the physical and emotional pain of the attack.  Those opiates are the natural equivalent of the morphine that might be administered to a surgery patient.  As pointed out by Dr. Campbell, “morphine’s not sensitive to subtleties.”  The body’s naturally-occurring painkillers behave the same way, masking emotional pain and leading to the monotone response that strikes some law enforcement officers as suspicious for a victim of recent sexual assault.

Finally, Dr. Campbell’s research posits a phenomenon known as “tonic immobility” as an explanation for certain sexual assault victims' failure to fight back or to run away.  Tonic immobility (also known, at least in this context, as rape-induced paralysis) is an autonomic response wherein the body freezes in situations that provoke extreme fear.  It is an involuntary response, and its most marked characteristic is total muscular paralysis.  Fighting back or running away is literally impossible for a victim of rape-induced paralysis, whose body has decided for her that the safest course of action is to play dead.  Thus, the failure to fight back, run away, or in some other way physically resist sexual assault does not mean that a victim “wanted it” – the assumption of many institutions and officials who treat such failure of resistance as evidence of consent.

And, even when a sexual assault victim is physically capable of moving (research suggests that the proportion of rape victims who suffer from tonic immobility may approach fifty percent) it doesn’t necessarily mean that she is psychologically capable of doing so.  Besides impairing memory formation, the hormones released during a sexual assault prevent optimum operation of the circuits in the prefrontal cortex that make rational thought possible.  For the victim of rape or some other form of sexual assault, the thought process needed to resist may not be present during the assault itself.

Dr. Campbell’s research is important not only because it might alleviate the guilt of survivors struggling to understand their reaction to an assault, but also because it suggests certain crucial improvements that might be made to the way law enforcement and other officials handle sexual assault cases.  Failure to resist assault, inability to recall events clearly or sequentially, and surprisingly flat reactions to such trauma aren't necessarily suspicious, and certainly should not be grounds for throwing out a case. 

Perhaps most significant though are the implications for interviewing victims.  Dr. Campbell’s research not only suggests why victim’s accounts often seem confused and incoherent – it also suggests a solution to the problem.  She says, “It’s just going to take some time and patience for (a survivor’s recollection) to come together.”  She recounts the story of a veteran detective who insisted on getting a sexual assault victim coffee before interviewing her, having found, after years in his position, that “If you give them a few minutes to breathe, it starts to make more sense” – and made little difference to his ability to discern a false report from an honest one.  While this may go against more traditional interview-taking procedures, Dr. Campbell’s research suggests that the institutionalization of a practice similar to that veteran detective’s coffee-break might not only offer survivors a welcome reprieve in which to gather and consolidate fragmented recollections, but also lead to more accurate investigations.

The presentation in which Dr. Campbell outlines these findings, and their implications for law enforcement, began as training for the Sexual Assault Kit Action Research Team in Detroit – around twenty police officers, nurses, prosecutors, and crime lab workers.  Since then, she has educated hundreds of audiences on her findings and what they mean for workers who deal with the victims of sexual assault.  She has delivered a presentation sponsored by the Department of Justice and the National Institute of Justice, and has collaborated with the writers of “Law & Order: Special Victims Unit” to write an episode involving a sexual assault and rape-induced paralysis.

During her presentation for the National Institute of Justice, Dr. Campbell shared a comment posted by a survivor of sexual assault on a blog post connected to that Law & Order episode which movingly illustrated the value of her work.  “I cannot believe I am reading this article. After years of blaming myself, questioning myself, feeling tormented, I now understand why I froze every time I was assaulted. It now has a name. I don't have to wonder why or what's wrong with me or why didn't I do anything. I can't tell you how much relief this article brings me. You must know how much your website and your work helps those of us who have suffered in silent torment and agony. You give us a voice. You give us compassion. You give us strength and hope. There are no words to express the gratitude I feel.”

Friday, October 18, 2013

How do we know 1 in 4 women will be sexually assaulted in college?

You've probably seen the statistic before: 1 in 4 women will be the victim of attempted or completed rape by the time they graduate from college.

It's a startling number -- one that illustrates the urgency of efforts to stop sexual violence on college and university campuses.

But where does this alarming statistic come from? And is it accurate?

Changing How Sexual Violence Is Measured: The Sexual Experiences Survey

The first major study to report the one in four statistic was based on the Sexual Experiences Survey (SES), a questionnaire developed by Mary Koss and her colleagues in the 1980s to correct what they perceived to be shortcomings in the way law enforcement agencies measured sexual violence.

At that time, estimates of rape relied on the FBI's Uniform Crime Report (UCR) and the Bureau of Justice Statistics' (BJS) National Crime Survey (now called the National Crime Victimization Survey).

The UCR, as critics pointed out, only measured rapes reported to law enforcement agencies, even though research dating back to the 1950s indicated that many if not most rapes went unreported (see Kirkpatrick, cited below).

The BJS attempted to make up for this reporting gap by administering the National Crime Survey, which asked representative households about reported and unreported crimes. But critics objected to the way that survey was administered and how its narrow definition of rape, which focused on penile-vaginal penetration, excluded other acts that legally qualified as rape. Furthermore, researchers discovered that the very wording of survey questions about sexual assault influenced how (and if) women responded.

As Koss explained in her journal article, "The Hidden Rape Victim," researchers couldn't simply ask women if they had been the victim of "rape" or "sexual assault" because not all victims recognized or acknowledged that they had been raped. Indeed, the confusion surrounding the definition of rape and stigma attached to its victims made some women reluctant to report or even realize that they had been raped.

Koss called these women "unacknowledged rape victims," explaining, "[a]n unacknowledged rape victim is a woman who has experienced a sexual assault that would legally qualify as rape but who does not conceptualize herself as a rape victim" (Koss 1987, 195).

To overcome this problem, Koss and her colleagues designed survey questions which graphically described rape and other forms of sexual assault without using the word "rape." Koss's descriptions were based on legal definitions and included a broader range of victimization than just penile-vaginal penetration.  (It's worth pointing out, however, that Koss's study did not include verbal coercion in the definition of rape, as is sometimes assumed.)

Using the SES questionnaire, Koss found that 27.5% of college women reported experiencing attempted or completed rape since the age of 14 (Koss 1987) . In other words, roughly 1 in 4 women in college had experienced rape -- though not necessarily while in college.

Criticism of "Sexual Politics"

The survey stirred up considerable controversy when Koss published the results in Ms. Magazine. Critics were quick to point out that most of the women identified as rape victims in the survey nonetheless answered "no" to the question "Have you ever been raped," the final item in the survey. Of course, the criticism ignored the fact that Koss designed the survey specifically to correct for the expectation that not all women who had been raped would identify themselves as rape victims.

Critics also argued that the way Koss phrased her questions led to over-reporting. Neil Gilbert, a professor of social welfare at Berkeley and prominent critic of the results, described the survey as "awkward and vaguely worded."

Gilbert was especially critical of Koss's questions about incapacitated assault. For example, one of Koss's questions asked, "Have you had sexual intercourse when you didn't want to because a man gave you alcohol or drugs?"  "What does having sex 'because' a man gives you drugs or alcohol signify," wrote Gilbert. "[A]s the question stands it would require a mind reader to detect whether an affirmative response corresponds to a legal definition of rape" (Gilbert 357).

Koss and her colleagues have since revised (and continue to revise) the Sexual Experiences Survey in response to these criticisms, rewording some of the questions to more accurately reflect legal definitions and to be sure that an affirmative response means a crime occurred.  However, the approach remains the same: creating a survey with graphically-worded questions that avoid the labels of rape and sexual assault.

Subsequent Surveys: Validating the Original Findings

Koss's original findings continue to be widely cited and are one source of the 1 in 4 statistic.

However, similar surveys have found comparable levels of sexual violence nationally or on college campuses: 1 in 6 U.S. women said they experienced a completed or attempted rape (National Violence Against Women 2000), 1 in 4 to 1 in 5 women experienced completed or attempted rape while at college (The Sexual Victimization of College Women 2000), and 1 in 5 U.S. women have been raped at some time in their lives (CDC 2010).

Most recently the Campus Sexual Assault Study (2007), funded by the National Institute of Justice, reported that 19% or 1 in 5 undergraduate women reported experiencing completed or attempted sexual assault since entering college. When the researchers focused on seniors they found that the number rose to 1 in 4 or 26.3% of college women. 

(The Campus Sexual Assault's definition of sexual assault included both sexual battery [forced touching] and rape.)

However, when researchers conducted the same study at four historically black colleges and universities in fall 2008, they found a lower prevalence of sexual assault. 14.2% or 1 in 7 women reported experiencing attempted or completed sexual assault since entering college. When restricted to seniors, that number rose to 16.1%, or 1 in 6 women. These results suggest that the numbers may vary depending on the type and size of institution surveyed.

Nonetheless, today the 2007 Campus Sexual Assault Study is widely cited as the source of both the 1 in 4 and the 1 in 5 statistic.

Important Context

Controversy still hounds the Sexual Experiences Survey. Skeptics continue to point to the FBI's and
BJS's reports that show a lower incidence of rape.

In fact, in 2012 the FBI's UCR reported 26.7 forcible rapes per 100,000 inhabitants -- nowhere close to 1 in 4. In 2010, the BJS's National Crime Victimization Survey (which has been revised in response to the SES) reported 2.1 completed and attempted rapes and sexual assaults per 1,000 females 12 or older. While much higher than the FBI's numbers, it is nowhere close to 1 in 4.

The numbers aren't entirely comparable. 1 in 4 is a measure of the prevalence of sexual assault: how many women have experienced sexual assault while at college. The BJS and FBI measure the incidence of sexual assault: how many occurrences there are each year.

And of course, as we've seen, these numbers are affected by what's included in the definition of sexual assault and how the questions are asked.

Nonetheless, the 1 in 4 statistic provides an important context for campus safety and advocacy efforts. Even critics of this statistic acknowledge that rape is vastly under reported. The Sexual Experiences Survey and other similar studies highlight an important problem facing efforts to fight sexual assault on college campuses.

It isn't just about statistics. It's about educating students so they can protect themselves and each other.

Works Cited

Gilbert, Neil. (1992) "Realities and Mythologies of Rape," Society, 4, 356-362.

Kirkpatrick, C. and Kanin, E. (1957) "Male Sex Aggression on a University Campus," American Sociological Review, 22, 52-58.

Koss, M.P. (1985) "The Hidden Rape Victim: Personality, Attitudnal, and Situational Characteristics," Pyschology of Women Quarterly, 9, 193-212.

Koss, M.P., Gidycz, C.A., Wisniewski, N. (1987) "The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students," Journal of Consulting and Clinical Psychology, 55, 162-170.

Tuesday, October 15, 2013

Standards of Proof

In a typical "he-said-she-said" case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused's and victim's credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower "preponderance of evidence" standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher "clear and convincing evidence" standard was applied and the decision was reversed.

The Department of Education has in fact established "preponderance of evidence" as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, "in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)."

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof1 requires a different level of confidence in the facts supporting a decision:
  • beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
  • clear and convincing requires at least 70-75% confidence that the facts support the decision
  • preponderance of evidence requires at least 50.1% confidence that the facts support the decision
In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.2

The "beyond a reasonable doubt" standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.3  The 18th Century English jurist William Blackstone explained it this way: "It is better that ten guilty persons escape, than that one innocent suffer."4  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a "high probability" or "reasonable certainty" that the weight of evidence favors the decision. It is applied in civil cases involving more than "mere loss of money," such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.5

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, "[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous."6

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM "blueprint," preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, "substantial evidence," is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"7 Strictly speaking, this standard only requires a "substantial" amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The "substantial evidence" standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student's failure to meet academic standards "calls for far less stringent procedural requirements," in terms of notice and hearing, than a student conduct violation.8

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,9 a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a "conviction for 'possession of narcotic drugs' in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person's good name and reputation." The court also pointed out that a one-term suspension from school "is a harsher punishment than he was likely to receive from either a state court ... or a federal court, for a first-time offense of simple possession of marijuana."

Under these circumstances, the court found that "any standard lower than a 'preponderance of evidence' would have the effect of requiring the accused to prove his innocence" because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a "constitutionally adequate" standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn't specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,10 another federal court refused to overturn the university's decision to suspend two public university students after they were found guilty of sexual assault even though the university's decision was based on substantial evidence. The court found the disciplinary proceeding, while "not ideal," was fundamentally fair. The court explained the tension between these two principles:
    A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.
The middle ground was described as "whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial." Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as "a case of differing perceptions and interpretations of the events in question." It turns out that the deciding factor was that some of the complainant's statements began with "I think" or "I don't think." The official interpreted this as a "hesitant and equivocal response" and concluded that the complainant's credibility did not meet the higher standard of proof.

The ED found that UM's handling of that case on appeal showed an "incomplete understanding" of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed "more training on how to evaluate evidence and the appropriate evidentiary standard to assess it."

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what's at stake:
    Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof "is more than an empty semantic exercise."11
It has also been suggested that school officials deciding sexual assault cases may "unwittingly require clear and convincing evidence" regardless of the appropriate standard because of the serious consequences to the accused.12 What we're left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims' behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we'll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.

1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: "First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened ... In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. .... A second proposition ... is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than "spiking the punch at an after-school meeting." However, the court did not rule on what standard of proof should be applied but only suggested that the "clear and convincing" standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, "Preponderance of the Evidence and Student-on-Student Sexual Assault." Boston College Law Review Vol. 53:1613, 1649 (2012).