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What’s Wrong About How Many Colleges Handle Reports of Sexual Misconduct?

On Wall Street, at the Oscars or Grammy awards, even on Capitol Hill or at the White House, sexual harassment and sexual assault seem nearly omnipresent subjects. As a criminal defense lawyer, I’ve seen many cases – both in the settings of a criminal or juvenile court, and even more often in non-judicial settings such as school discipline or college Title IX hearings (which, can have serious repercussions for those accused, even as some of the procedural safeguards that would be a matter of course in a criminal court are often lacking, as I’ve described in a number of my earlier posts).

I’ve long admired the perceptive, skilled writing of Emily Yoffe, who for years wrote Slate’s “Dear Prudence” advice column, among many other things. Last year, she authored three lengthy analysis pieces for the Atlantic exploring several important controversies in how publicly-supported schools and colleges are interpreting and enforcing Title IX, which requires them to investigate and, where appropriate, take enforcement action against sexual misconduct affecting students or staff.

Much of what she’s covered have been the increasingly well-known problems in Title IX requirements imposed on schools under a 2011 directive issued by the Office of Civil Rights in Obama’s Department of Education, currently frozen while the new administration works on a replacement. But far less known is the subject discussed in an article Ms. Yoffe published last September 8: how federal enforcers and activists have tried to impose as orthodoxy a view on neurological and psychological responses to sexual assault that has virtually no scientific support.

Promoted in some federally-developed materials and embedded in Title IX training materials used on many campuses, this theory in essence claims the trauma of unwanted sexual conduct nearly always renders a victim “frozen,” powerless to resist, or even accurately remember what happened.

So, if there’s no sign of struggle, or reports are incoherent or inconsistent, far from giving rise to doubts about the claim, this view takes those flaws as confirmation, at least for campus officials making often-unskilled investigations. As a female Harvard Law professor observes, the theory is “100% aimed to convince” investigators to “believe complainants, precisely when they seem unreliable and incoherent.”

Yet the reflexively pro-accuser expectation that victims will be virtually catatonic has serious problems. There’s little solid evidence for it; what mind and memory researchers have learned from studying other high-stress traumatic events – such as terror attacks – is at odds with those claims. Few of the survivors of the Parkland, Florida mass shooting, for example, appear as clueless as the “frozen” theory would have us believe.

Ms. Yoffe also questions not just the accuracy, but also the wisdom, of promoting to young people the message that biological programming renders them helpless if confronted with unwanted sexual conduct, which will also certainly impair their mental abilities thereafter.

There’s another danger in schools automatically crediting whatever they hear in accusations, or deciding not to worry if accounts seem implausible. It’s important to deter and punish unwelcome sexual conduct, but if the only way to do that is to pre-judge every report without requiring some level of provable truth, such intrinsic unfairness may eventually cause fair-minded persons to withdraw from that effort.