But If Not Title IX, Then What?

Bret Stephens, the Times’ evil conservative columnist stolen from the more evil Wall Street Journal, engages in a thought experiment.

It’s in our moral and constitutional DNA that we take extraordinary pains to safeguard the rights of the accused, even when it means letting the guilty go free. But we also believe in justice, and the fact is that sexual assault is a brutal reality of modern campus life, abetted in too many instances by a culture of binge drinking. How best to change this without compounding one injustice with another, or intruding too far into private life, or violating fundamental rights is a matter of debate. That it has to change isn’t, or shouldn’t be.

Long on sentiment, short on detail, this Gertruding is the preface to Bret Stephens posting a letter he received from a “friend” about her rape on campus.

After the column’s publication, a young friend wrote me a personal note to share her experience of being raped in college. Her letter is so detailed, devastating, honest and thoughtful that I thought the best thing to do was give her the full stage of an Op-Ed column in The Times.

While one instance of rape does not an epidemic make, and at least in this instance, it was very much a rape of a young woman passed out, completely incapacitated, the fact remains that rape (as traditionally and legally understood) happens and is a horrific crime. His “young friend” writes:

If the sexual assault crisis on college campuses shouldn’t, and can’t, be addressed by the Department of Education or by changing Title IX, then who can change it and how? I suspect many of the solutions to this crisis are cultural and moral rather than legal, and perhaps there isn’t a clear policy solution. You’re a columnist, and you care about the culture, and it’s well within your purview to examine the moral questions of our time.

It seems to me that conservatives and mainstream liberals have abdicated concern about sexual assault to the far left. It’s an astounding moral blind spot, and frankly it breaks my heart.

Buried in these words is a gross misapprehension, which unfortunately is perpetuated by the radical shift in the handling of campus rape and sexual assault. Where once “rape” was understood to be a crime, a most serious crime, it has been turned into a meaningless word, not by the heartless conservatives or the rape apologists, but by the unduly passionate who were more concerned with turning every sexual encounter into a putative rape scenario, and providing a rape-lite path for women who wanted “justice,” but only on terms that suited their feelings.

That the scheme developed by the Department of Education’s Office of Civil Rights is ultra vires and unconstitutional has been argued here at length, and its anticipated partial dismantling under De Vos is welcomed by those for whom due process matters. Others, not so much.

But arguing against an unlawful and unconstitutional system is hardly the same as not being against the offense or the offenders. This is too obvious to require mention, yet the primary attack on anyone defending the Constitution. You get used to this, by the way. If it wasn’t for irrational arguments, most people would be reduced to screaming, “Oh yeah? Well, you’re a poopyhead!!!”

Notably, Stephens’ correspondent includes this explanation.

I hate having to use my own life as an example. But honestly, so many of the conservative men in my life won’t listen to me on this argument until I tell them my story. So here I am. I was raped. He got away with it, because I didn’t know enough to do everything right and because I was a “bad victim.” I had been drinking. I had no witnesses. There was nothing the law could do for me.

Did she try? Did she go to the police and tell them she was raped? It would appear not, and so she rationalizes her excuse: “I didn’t know enough to do everything right” and “there was nothing the law could do for me.” Does it take a genius to figure out that the thing to do when you’re the victim of a crime is to go to the police? Today, however, the feminist message everywhere is that you shouldn’t have to. If you’re beaten up on the street, you go to the police. If you’re raped, you go to a Title IX administrator.

The facile response is that the police are insensitive to rape victims, that it’s just “she said/he said” and they will tell you to get lost after treating you poorly. That there is nothing they can do, so why bother? This, in a nutshell, is the justification for the creation of the Title IX machinery, geared toward the quirks of rape “litigants” at the expense of due process.

The mechanism by which society has chosen to vindicate justice for victims of crime, the police, the prosecution, the legal system, has never worked as well for anyone as we like to pretend it does. Yet, it remains the system that puts people in prison for life plus cancer, even if they’re innocent, and treats the victims of crime poorly when the evidence doesn’t make for an easy conviction. Whether there was nothing the law could do for Stephens’ correspondent is speculative, since she didn’t try, but it is not speculative that it fails victims, not to mention defendants and the public, regularly.

But the solution to a system that sucks isn’t the creation of a secondary system that sucks as well. The solution is to fix the system society has chosen to create to provide “justice” to crime victims and due process to the accused. Condemning the false god of Title IX campus sex adjudications has absolutely nothing to do with approving of rape or rapists. If anything, a coldly serious consideration of this ill-conceived scheme makes clear that it’s done egregious harm to eradicating the crime of rape by having undermined its seriousness, and addressing the flaws is the most effective means to end it.

31 comments on “But If Not Title IX, Then What?

  1. B. McLeod

    So, the reason we need the Title IX star chambers is one more unsubstantiated claim of “rape” that was never even reported to police. Ludicrous. The answer on what to do without the star chambers is easy. Simply turn the cases back to the criminal law, as it applies to every other segment of our society. The way it should have stayed to begin with.

    1. SHG Post author

      The criminal justice system is a disaster, and will continue to be a disaster as long as we refuse to think (and think hard) about how to make it otherwise. But it remains the system, for everyone, for better or worse. It won’t get any better by swinging from on panic to another, by being hysterical after every anecdote and demanding a magic solution under the guise of “Justice.”

      1. PseudonymousKid

        The road to hell is paved with appeals to emotion.

        If the criminal justice system is such a disaster, we should be panicking. Don’t expect a hard right off the road and hard thinking to come anytime soon. This seesaw ride is too addictive.

          1. PseudonymousKid

            Too late on making me sad, but at least you aren’t lying and telling everyone that everything is gonna be alright. I’m just not principled enough to set myself on fire in protest and hunger strikes are just going too far.

  2. Matthew S Wideman

    These personal anecdotes about how the police and prosecutors don’t care always make me shake my head. The student has multiple avenues for persuing justice outside of a Title IX administrator who was hired because of a bogus letter. In my experience the cops and prosecutors will get involved if the witness is even remotely credible.


  3. Dan

    “Does it take a genius to figure out that the thing to do when you’re the victim of a crime is to go to the police?”

    This is what continues to mystify me, as it continues to be repeated or at least suggested. Who the hell doesn’t know this? And if there are people who don’t know this, maybe that’s what we should be teaching them, along with “be prepared for the possibility that they might not take everything you say at face value without question.”

    1. SHG Post author

      This is part of the campus rape message that undermines the claim: it’s forgivable, if not commendable, to not go to the police today if you’re a woman raped on campus. They’ve so badly muddled the obvious that it’s no longer obvious.

    2. DaveL

      Well, clearly waiting for survivors to go to the police isn’t working as a way of initiating proceedings against campus rapists. Maybe instead, we should just have the Title IX coordinator post notices in the quad, that if anybody knows, or has heard that a person is reported to be, or is suspected to be a rapist, then they are ordered to bring such information before the Title IX coordinator within, say, 12 days. If anyone should have such knowledge or heard such reports and failed to bring them forward, they would be punishable by expulsion.

      Extra internet points to whoever can name where this idea comes from.

  4. Turk

    She also had a third option — civil suit. Due process, rules of evidence and the potential for punitive damages.

  5. Grum

    That last paragraph should be made available as a public service any time this stuff rears its head, but could do with a ‘;’ after “the crime of rape”.

      1. Grum

        Of course not, it is a good post. I just particularly liked the statement of a general principle that seems to elude people far too often. As if you care ( a ‘;’ would still help tho).

        1. wilbur

          I agree it is a good post. The reasoning and delivery is … um, good. Very good.

          But have you considered the possibility that you are indeed a poopyhead?. An unexamined life and all that.

          It’s good to be back.

    1. David Meyer-Lindenberg

      a) that makes precious little sense; your fix would make the sentence say campus-rape tribunals did “egregious harm to eradicating the crime of rape” by “addressing the flaws in the most effective means to end it”

      b) this morning, I suggested Scott change “in the mist effective means” to “is the most effective means,” but he only implemented half the fix and went with “in the most effective means,” because YOLO, so I, as editor, am forced to conclude: ¯\_(ツ)_/¯

  6. Tom

    The Title IX “dear colleague” letter may very well be a solution for a non-existent problem. Take my alma mater, the University of Texas at Austin. The campus police uniform crime report does not report a single rape reported from 2013-2015 (I didn’t go back further and 2015 is the latest for which stats are available). The 2014 Austin Police Department reported 571 rapes in the city (using a new, broadened definition of rape).
    If the 5 percent of female students are sexually assaulted number is true, that means that 1,000-1,500 UT women are assaulted. Where are the reports? The UT president recently released a report based on a survey of 28,000 students that 15 percent of the women students reported being raped, with about 13 percent being on campus. That’s 4,200 student rape victims among those surveyed including 546 on campus.
    That’s a crazy number. Given a four-year college career that would mean that 1,000 UT students would be raped annually — about twice the total for the entire city reported by the Austin Police Department in 2014.
    And, university administrators or professors are ill equipped to investigate allegations of sexual assault, regardless of how many occur. Rape is a serious felony. In Texas depending on the circumstances, it is punishable by up to 20 years in prison or in some cases, life. There are specialized police units for sex crime investigations and many prosecutors offices have special units to prosecute them.
    University officials simply lack the training and experience to investigate allegations of sexual assault. Further, if the student is a minor, it is a criminal offense NOT to report it to the proper authorities such as the police.

    1. SHG Post author

      This post is not about whether a rape epidemic exists, a subject covered in some of the many other posts about Title IX campus sex adjudications here over the years. And if it was, and your comment was relevant, it ignores the fact that severe under-reporting is one of the persistent claims made in support of the need for Title IX adjudications.

  7. Scott Jacobs

    If the sexual assault crisis on college campuses shouldn’t, and can’t, be addressed by the Department of Education or by changing Title IX, then who can change it and how?

    I realize the “friend” (who I suspect exists as much as the 8-year olds who keep asking their parents about domestic fiscal policy or immigration issues) is a college student, and there for more than a little stupid, but has she considered…

    I dunno…

    The fucking police???

    Just a thought.

  8. Fubar

    Where once “rape” was understood to be a crime, a most serious crime, it has been turned into a meaningless word, not by the heartless conservatives or the rape apologists, but by the unduly passionate who were more concerned with turning every sexual encounter into a putative rape scenario, and providing a rape-lite path for women who wanted “justice,” but only on terms that suited their feelings.

    Title IX, as understood by the passionate DOE bureaucrat:

    There’s rape and there’s rape-rape galore,
    depending on how you keep score.
    Just calling a cop
    will not make it stop.
    So we need Title IX even more!

    We need lots of professors and deans
    who don’t even know what “rape” means,
    whose wisdom prevails
    to banish all males
    from coeducational scenes!

    Once the campus is spotless and pure,
    with no dread XY genes to endure,
    we’ll hear women rejoice
    in unanimous voice.
    They’ll find Heaven on Earth, we are sure!

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