Should sexual assaults that occur on college campuses be handled by the school or by the criminal-justice system? Rape is often treated as a matter for the internal tribunals that weigh issues like plagiarism and cheating, even though the investigation and adjudication of other serious crimesa dorm-room murder, saywould never be handled by a small group of faculty and students with no particular forensic or legal training. One reason is that the Department of Education has pressured colleges and universities to deal swiftly with rape allegations in order to comply with civil-rights law and to make campuses safe for women students. But the other is that people who have been raped are often reluctant to go to the police. These women (and sometimes men) know that their sojourn through the criminal-justice system is likely to be a further ordeal, and they may have little confidence that it will lead to any punishment for the perpetrator. The statistics support that skepticism: only a tiny fraction of reported rapes are successfully prosecuted.
The stories told in Jon Krakauers new book, Missoula: Rape and the Justice System in a College Town,remind us of what a brave and risky thing it still is for a woman to report a rape. Krakauer, who has written for this Web site,explores a spateof sexual assaults that occurred on and around the campus of the University of Montana between 2008 and 2012. For several of the women involved, the risk of reporting their rapes felt even more acute because the men theywere namingwere football players in a town that, like a lot of college towns, is football crazy. The team was the Grizzlies; Missoula is also known as Grizzlyville. Two of the cases eventually went to court. One involved a Grizzly linebacker named Beau Donaldson, who pleaded guilty to having raped a young woman whod been a childhood friend; she was deeply asleep when he climbed on top of her. The other involved Jordan Johnson, a Grizzly quarterback accused of rape by a woman Krakauer calls by the pseudonym Cecilia Washburn. Johnson maintained the sex was consensual.
By nature, criminal trials are public, probing, and adversarial. They attract judgment from the troll chorus on the Internet, from prospective jurors, from cops, from people around town, many of whom may hold antiquated ideas about what constitutes rapeimagining perhaps that most are committed by marauding strangers when in fact most rapists and their victims are acquainted. The woman who had accused Jordan Johnson had the misfortune of coming up against two particularly belligerent defense attorneys. One of them, Kirsten Pabst, was a former prosecutor. She does not come off well in the bookshe crops up earlier as the Missoulaprosecutor who declined to bring criminal charges in an egregious case where the University of Montana had determined an accused rapist to be guilty. In Johnsons trial, Pabst portrayed her clients accuser as a woman seeking revenge because a sexual encounter did not lead to a relationship. The facts do not seem to support this interpretation. Washburn had fired off a text to her roommate within five minutes of the incident that read, Omg, I think I might have just gotten raped. he kept pushing and pushing and I said no but he wouldnt listenI just wanna cryomg what do I do! The defense took issue with the word thinkShe didnt know! She did not know, one of the lawyers crowed in his speech. Beau Donaldson was sentenced to ten years in prison. Jordan Johnson was acquitted; jurors seemed to have been persuaded by the argument that he was a good boy who could reasonably have believed that the sex was consensual.
Krakauers reporting leads him to the conclusion that as flawed as university processes may be, they are better than what the criminal-justice system often has to offer rape survivors. The criminal justice system simply moves too slowly and is constrained by too many formidable procedural obstacles, as Judge [Richard A.] Posner puts itin his book The Problems of Jurisprudenceto reliably punish campus rapists and remove them from the academic community. Im not entirely convinced. For one thing, the justice system did work in the case of Beau Donaldson; he received a far more severe punishment than the university could have meted out. It also seems to be working in the case of the Vanderbilt University football players charged with raping a fellow-student, who was unconscious at the time, and recording the attack with their cell phones. Two of the men have been convicted on multiple counts and are awaiting sentencing; two are due to be tried. And though police and prosecutors have a long way to go when it comes to handling rape cases both sensitively and effectively, the system has shown itself capable of change. Thanks to the work of activists and reformers that reaches back to the nineteen-seventies, most jurisdictions bar the introduction of evidence about a rape victims sexual history; it is now widely understood that a person can be raped by someone with whom she or he had formerly had consensual sex, including a spouse; and the police areoftentrained to deal more empathically with sex crimes than they once were.
Universities, meanwhile, will never be equipped to investigate and punish serious crimesthats not their mission, nor should it be. In a 2014 letter advising the federal government about the issue of campus sexual assault, the advocacy organization RAINN (Rape, Abuse & Incest National Network) made this point:The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: they lack protections for the accused while often tormenting victims. . . . The fact that the criminal justice process is difficult and imperfect, while true, is not sufficient justification for bypassing it in favor of an internal system that will never be up to the challenge.
Schools can and should coperate with the police to improve campus security and assist investigations. They should do what they can to keep accuser and accused apart without violating their rights. They should of course provide medical care and counselling, including nurses trained in sexual-assault examination. And they should capitalize on what they actually do best, which is to educate, with the goal of preventing sexual assault. They should conduct research to see what kind of education for prevention works best. Right now, there are several promising approaches, including encouraging bystanders to intervene when somebody looks too out of it to defend her or himself, for instance. But bystander training hasnt yet been shown to reduce sexual assaults (though some studies show it effectively changes attitudes). Admittedly, such research would be very hard to do. For one thing, as awareness increases, so will reports of assaultthats a good thing, but it confuses the statistical picture.
Krakauers timely book is also a reminder of a crucial point that a subset of students evidently need to learn: a person who is too drunk to stand or walk properly, who is vomiting or passed out, cannot consent to sex. This is a legal matter: taking sexual advantage of someone who has been rendered mentally incapacitated (the language in some states) or physically helpless (the language in others) or too intoxicated to consent (in still others) is rape. Maybe we can start an honest discussion of why so many college students want to binge-drink themselves into blackouts on a regular basis, and why certain men regard sex with an inert, unconscious woman as appealing. I think most people know that exploiting another human being that way is wrong. Those who would choose to do it anyway may need to be reminded that it is also against the lawand that they will be prosecuted for it.