So KC Johnson is a historian and blogger who made something of a name for himself with his coverage of the rape allegations lodged against members of the Duke lacrosse team a few years back. Johnson returned to the subject of campus sexual assault yesterday with a response to Jaclyn Friedman’s weekend Washington Post op-ed on universities’ judicial policies.
It didn’t go well.
In a piece he wrote last fall, Johnson wildly distorted a post I’d written about an allegation of gang rape at Hofstra University. And now he’s at it again.
In the new essay he goes off the rails with his opening sentence, in which he refers to Friedman as “a self-described ’writer, performer and activist’ who is ‘a dynamic and powerful performer who performs and agitates with Big Moves, a national size-diverse performance troupe.’”
Now, Friedman is all that stuff — Johnson isn’t lying — but the description he uses comes from her website, not the op-ed. In the Post, Friedman was described as “the editor of ‘Yes Means Yes: Visions of Female Sexual Power and a World Without Rape.’”
Yep. She’s not just a “self-described ‘writer,’” she’s the editor of (and a contributor to) a widely-read book on rape. She’s also — as her website points out — a widely published writer with a long history of involvement in campus women’s issues. But you wouldn’t know any of this from Johnson’s piece. Because he thinks it’s more important that you be told that she dances with fat chicks.
From that inauspicious beginning Johnson launches into the body of his argument, and quickly bungles his first big opportunity for productive dialogue.
“Campus judicial proceedings,” he says, “almost always deny to students accused of sexual assault … basic procedural protections.” I’m not competent to evaluate his “almost always,” but in essence I agree with him. Due process is often sadly lacking in campus judiciary hearings.
But Johnson is wrong about why that is, and how it works. It’s not because, as he puts it, campuses are “paragon[s] of political correctness.” It’s because their judicial systems too rarely give serious protection to any student’s rights.
Both accusers and accused deserve fairness and due process in campus judiciary procedures, but often both are denied it. Friedman’s essay provides a useful overview of these deficiencies — lack of training for administrators supervising the jucicial process, reliance on informal hearings and mediation, procedures that place a higher value on calm than on justice. Friedman is more interested in discussing the rights of victims than those of the accused, but due process isn’t a zero-sum game, and she doesn’t present it as one.
Johnson characterizes Friedman’s description of colleges as environments “of silence, rape apology and victim-blame” as a “wild” allegation, but snips out her explanation of why they’re that way — a powerful institutional interest in being perceived as crime-free. And that explanation is backed up by sound evidence. A 2002 study found that less than forty percent of American colleges were in full compliance with Clery Act requirements that they report violent crimes that occur on campus. (It found similarly low numbers, by the way, for the existence of sexual assault training for student judicial board members and resident assistants, clear written policies on the conduct of investigations, and — and Johnson will be interested in this — due process for the accused.)
Campus policies on rape aren’t designed to serve the interests of accusers, and they’re not designed to serve the interests of the accused. They’re driven by inertia and the institutional interests of the universities themselves. That fact creates an opening for the creation of procedures that better serve the interests of students on both sides of the judicial process, but Johnson is uninterested in exploring that possibility.
(Johnson would, he suggests, address the deficiencies of universities’ handling of sexual misconduct cases by having judicial systems get out of the business of adjudicating such cases entirely — such complaints should, he indicates, be handled by the police or not at all. This would of course be a change in university policy at least as radical as Friedman’s proposals, but it’s one that he barely bothers to defend.)
There’s a lot more to criticize about Johnson’s essay, and I’m not going to try to tackle all of it, but here’s another important piece:
Friedman proposes that colleges adopt sexual misconduct policies under which “any party to a sexual interaction” would be required “to make sure their partner is actively enthusiastic about what’s happening — not just not objecting.”
In response, Johnson wonders rhetorically how such consent would be demonstrated — “through videotape? a signed, notarized agreement?” But his question demonstrates a failure to understand the distinction between a conduct standard and a standard of proof.
In many instances of sexual assault, the only evidence of whether consent was given is the testimony of the parties involved. If there are no witnesses or evidence of physical trauma, and the fact of sexual contact is not in dispute, the question of consent often comes down to what the parties say happened, and — if they disagree — whose version is accepted by the adjudicating body. And this is, crucially, true whatever standard of consent is employed.
If Friedman’s standard were adopted, in other words, the burden of proof wouldn’t change. All that would change is the burden of the parties in determining whether consent existed at the time of the sexual contact itself.
Instead of a non-consenting party having the obligation to express that lack of consent, the initiating party would have the obligation to determine — verbally or non-verbally — that such consent existed. This standard is intended to deprive accused rapists of what Friedman calls “the ‘miscommunication’ excuse.” If you have sex with someone against their will, she argues, your obliviousness to their wishes should not be a defense.
The question of how consent should be defined is a big one — and, yes, it’s tricky. There’s room for reasonable people to disagree about how to answer it. But Johnson’s objections contribute nothing to that debate.
Campus policies on sexual misconduct could not be more consequential — either for the victims of such crimes or those accused of them. Johnson’s slapdash treatment of the subject does nobody any good.