The provisions of the Safe Campus Act that mandate basic due process protections for the accused may be dreaded by those bent on making sure no guy goes unpunished, but that’s hardly their big beef with the proposed law. What they can’t stomach at all is the mandatory reporting of an alleged crime to law enforcement.
Critics have called the bill “absurd,” arguing that mandatory reporting to law enforcement will deter victims from coming forward. Writing in The Washington Post, attorney and journalist Jill Filipovic lamented, “Even when women do report to police, the investigation rate is low and the conviction rate even lower—only two accused rapists out of every 100 spend a day in jail.”
On its surface, that certainly seems as if police either don’t take the crime of rape seriously, or dismiss allegations out of hand. Neither reaction by police is acceptable, if that’s the case. But it’s not.
Of primary concern is Sec. 163 of the bill, which mandates that survivors must initiate a police proceeding before any action can be taken by the University in regards to incidents of sexual assault. We fear that this provision will exacerbate the already severe problem of the underreporting of sexual assaults.
As this plea goes on to explain, there is a litany of excuses for why reporting a crime to law enforcement is anathema to the dogma of campus rape and sexual assault. Under scrutiny, however, the real issues become clear.
Two issues are raised by this claim, both of which go to the core problem of what is wrong with the current campus rape adjudicatory regime. The first is that law enforcement, unlike colleges, deal with law, and law defines rape and sexual assault based on elements of an offense.
What this means for “survivors” is that the various permutations of the offense that are popular on campus fail on their face to constitute a crime. Rape isn’t what someone feels the next day or month, or reliance on a beer to obviate “enthusiastic consent” the night before, but the parameters distinguishing criminal conduct from post-hoc regret.
In other words, what passes for rape in the minds of Title IX administrators, gender studies professors and campus advocates doesn’t constitute rape under the law. This makes them crazy. The belief system that embraces concepts ranging from forcible rape to “gray rape” plays no role in the legal systems requirement that “rape,” the word used to describe the amorphous end result of undesired feelings, isn’t “rape,” the crime.
A lot of complaints that give rise to conniptions and protests on campus are immediately rejected by law enforcement, not because cops are rape apologists or misogynists, but because it’s not rape except in the fuzzy minds of advocates for whom definitions and elements are meaningless, and vague feelings prevail.
The second aspect that causes apoplexy is that law enforcement relies on a concept foreign to campus adjudications: evidence. Granted, testimony can be evidence, although not when it’s taken at face value without being subject to the crucible of cross-examination.
But more to the point, when the allegations are conclusory, conflicted or, well, nonsensical except to those who pray at the altar of neo-feminist dogma, it’s unsurprising that police struggle to find it as persuasive as college students do.
For example, when the allegations of rape consist of two students, both drinking but neither incapacitated, the law doesn’t accept the premise that the female student lacks the capacity to consent. Or when students are engaged in sex, and the female decides at some point that she no longer feels like continuing but neglects to express this, the law doesn’t accept the premise that her secret feelings terminate her consent and the act magically morphs into rape.
These, and other variations on the undefined concept of campus rape versus legal rape, not only explain why the numbers fail to match claims of rape, but why the police fail to investigate or seek to prosecute accusations. The law doesn’t fluctuate with the feelings of “victims,” but requires a stable definition of cognizable elements of an offense.
This leads to the next complaint, that police aren’t adequately sensitive to the reactions of post-rape trauma. There are a series of explanations for why women fail to mention rape for days or months, why they freeze rather than object to conduct, why they are confused by their mixed emotions until afterward, why they seemingly consent at the moment but, in their hearts, do not.
In other words, the narrative crafted supports the proposition that a rape occurred, regardless of what the putative victim did. If she says something, it’s rape. If she doesn’t, it’s rape. If she objected, it’s rape. If she didn’t, it’s rape. Even if she consented, it’s still rape. No matter what, it’s rape, if this narrative is sensitively understood. Accusers wouldn’t lie, so if they allege rape, then rape it is.
Law enforcement tends not to be as sensitive as advocates demand. Cops have an expectation that subjective claims of rape be shown by some objective element of proof. This is inconsistent with the new campus standard of affirmative consent, a standard that is absolutely clear in the eyes of women who understand its definition to be whatever they decide it is, before, during or after sex. And a standard that obviates the notice requirement needed to pass constitutional muster for a crime.
It’s no surprise that campus rape advocacy groups vehemently oppose the Safe Campus Act. They should. The requirements undermine their core mission, to vindicate the feelings of “survivors” rather than punish offensive conduct. Given the alternatives of an offense that has been bootstrapped from creating a potentially hostile educational environment, a purely feelz-based scenario, to one that relies on facts, defined elements and objective evidence, the act will substantially undermine efforts to create a campus climate that elevates feminist dogma at the expense of male students.
On the other hand, if colleges were sincere in their claimed concern that no person be subject to a gender-based hostile environment, they would evince a substantially greater concern for males as well. The Safe Campus Act does what colleges, and the Department of Education’s Office of Civil Rights, have failed to do: return the concept of a punishable offense to definable, objective and neutral scrutiny rather than proved by excuses and amorphous beliefs.