Feb 202014

FirePart Two: Deceitful Hysteria Continues Around Campus Sexual Assault

I am going to begin part two of this article with a personal disclosure. My politics are that of a liberal libertarian, where I believe in social safety nets, I oppose unfair income divides that are rooted in social injustice and corporate welfare, and I believe strongly in personal privacy, being of the opinion that government has no business in the bedrooms of its citizens or taking away choices involving the human body, most notably in the area of reproductive rights. I also believe in science over creationism, believe that climate change is real and strongly influenced by human activity, and believe most fiercely in the separation of church and state. By basis of comparison, my politics are very similar to those of Mahatma Gandhi, Noam Chomsky, Nelson Mandela, and the Dalai Lama. Yep, I’m a lefty.

I say this not to promote my personal point of view, but instead to be genuine and transparent about the lens through which I view the world. Further, I respect that other people view the world differently and I do not claim that other views are inferior, no matter how much I believe in my own perspective. However, the basis for this respect rests on a respectful articulation of one’s point of view, and utilizing objective and demonstrable facts, rather than altering facts to meet one’s point of view. At the very least, people making arguments who are simply relying on their opinion should be clear that they are speaking an opinion, as opposed to articulating that opinion as ultimate truth. As a former conservative (believe it or not), I can actually understand the views of reasonable people on the right, and in some cases can either empathize or even agree with people who hold a more conservative perspective.

The Connection between FIRE and the Right Wing Media

So how did an article on Title IX morph into politics? In my view, FIRE has opened this door by virtue of the company it keeps.

In just the past three months, six pieces citing FIRE have made their way into publication at the Wall Street Journal, taking FIRE’s position as gospel that American colleges and universities have run amuck in depriving students of their free speech rights. It’s worse on Fox, where no less than 90 stories dating back to 2001 can be found of their website. By comparison, searches for FIRE on CNN and MSNBC find no current archive of stories explicitly involving FIRE. Similarly, the three major networks (ABC, CBS, and NBC) maintain a total of twelve stories involving FIRE over the entirety of the organization’s fifteen year existence.

While FIRE has previously made the claim that they are not a right-wing or conservative operation because they have represented left-wing parties and that they maintain left-wing supporters, that claim comes across as disingenuous at best. There is, after all, a point on the political spectrum where left-wing and right-wing interests converge. That is how we can explain people on the left who support conservative libertarian Ron Paul’s views on the wars in Iraq and Afghanistan, yet vehemently disagree with Paul on nearly everything else. We can always find individual points where interests connect without invalidating an entire premise. In this case, where FIRE’s main advocates are both Rupert Murdoch owned media giants, a fair question can be raised about whether the adoption of FIRE’s bogus claims are out of Murdoch’s and News Corp’s genuine concern for the perceived speech rights of students, or simply a tool to utilize in attacking what conservatives hold to be a bastion of liberalism in higher education, as well as an extension of the conservative culture war being waged on women’s rights. Looking at the numbers, it seems like a fair question to raise.

Taranto Goes Over the Top

What invited this examination was an article in the WSJ by James Taranto on February 10, in which Mr. Taranto compared sexual assault to drunk driving, and made the claim that anytime both parties are drinking, they are equally responsible for sexually assaulting each other.

“If two drunk drivers are in a collision, one doesn’t determine fault on the basis of demographic details such as each driver’s sex,” Taranto wrote. “But when two drunken college students ‘collide,’ the male one is almost always presumed to be at fault. His diminished capacity owing to alcohol is not a mitigating factor, but her diminished capacity is an aggravating factor for him.”


On what planet is this considered acceptable logic? And where do I even begin to deconstruct this?

Let’s begin with the fact that Mr. Taranto seems to be confused on drinking, being under the influence, being impaired, and being incapacitated. The distinctions between these “I” words have already been articulated by the National Center for Higher Education Risk Management (NCHERM), so I will refrain from repeating them. It does not hold that, just because both parties are drinking, both are equally affected. In fact, most states have laws that state that people who are incapacitated as a result of alcohol or drug use cannot give consent to sexual activity, and the physical differences alone between men and women put women at a higher risk of incapacitation for the same amount of alcohol consumed.

Unfortunately, Taranto’s logic may be mind-numbing, but it is not uncommon. I have personally seen cases involving male students who started drinking after they knew a female was incapacitated so that they could make the claim that neither party could give consent, and by definition there was (in their view) no fault. But I have also seen worse. I have seen a student explicitly state that his responsibility for gaining a woman’s consent was simply to go as far as he could until she resisted, and have seen other students who simply had no idea what the term consent even meant. I have also sat in a room and listened as a parent assailed a university for throwing his son out of school for “getting a piece of ass,” even though his own son acknowledged that the woman was incapable of consenting. Over the years I have regularly received cases where male students have committed violent sexual offenses while they (the males) were intoxicated. And yet Mr. Taranto would have us excuse these individuals because the women had also been drinking? Is this really the world that Mr. Taranto thinks should exist?

The backlash to Taranto’s column was swift, and a petition to fire Taranto was created and has the support of the National Organization for Women (NOW). Some of the comments offered on the site are both telling and accurate. Some of the responses include:

“Every time we blame a victim for being raped, we make the world a safer place for rapists.” (Shirley R.)
“Any intelligent person knows that the girl/victim is not to blame. The only person to blame for a rape is the rapist! If Taranto was drunk and was raped, would he still consider it a victimless crime and blame himself???” (Whitney P.)
“Date rape is indefensible. Violence against others should not be tolerated. I thought one had to earn the privilege of being able to write for the Wall St. Journal, as it influences so many. Clearly I was mistaken.” (Stephen B.)
“The shaming of victims empowers rapists, prevents effective enforcement of rape laws, and continues to limit women’s lives and maintain their status as second class citizens. For Taranto to slam victims this way by giving them fault equal to the predators who devastate their lives is not responsible journalism or even a respectable opinion. It is a travesty and an abuse of power. Shut him up.” (Kelly M.)

I will not take a position on whether or not the WSJ should employ Mr. Taranto, because I think it is simply a distraction from what he wrote. That debate, in my view, would take away from the real issue of why campuses have been required to get their acts together over the past three years in responding to sexual assault reports.

The Truth about Campus Sexual Assault

As I have previously written, the 2011 Dear Colleague Letter (DCL) issued by the Office for Civil Rights (OCR) was a long time in coming, and was sorely needed. Congress put higher education on notice with the passage of the Higher Education Reauthorization Act of 1997 that it was concerned about the problem of campus sexual assaults, and was going to examine the issue. In 2001, OCR followed with pointed commentary on how campuses should address sexual violence as a form of sexual harassment. Unfortunately this fell on deaf ears within our profession. Most campuses (in my view) were handling these cases well, even if not in full compliance with every expectation of OCR. But those campuses that were managing these cases poorly (if at all) continued their practices as well. This was highlighted in the 2009-2010 Center for Public Integrity year-long investigation of campus sexual assault processes, which exposed numerous examples of student victims failing to receive adequate attention to their complaints and whose lives were disrupted while the alleged offenders continued their educations unimpeded. Then in April of 2011 OCR finally issued its DCL, providing explicit instruction for campuses on how to respond to allegations, as well as providing instruction for the development and distribution of appropriate policies, and requiring campuses to seek to prevent such occurrences.

I believe I can use the word “truth” to discuss sexual assault cases as someone who has personally handled well over a hundred cases of sexual assault in a career spanning twenty-four years at three different institutions. I have personally worked with these students and heard their stories, and I have personally helped create campus processes that emphasize equal fairness to all parties involved in these cases. I have seen campus conduct systems do a tremendous job in responding to the concerns of all involved, even where people do not agree on the outcomes.

However, I have also seen the worst of these cases as well. While employed at Georgetown University in the early 1990s, the University handled sexual misconduct cases in a fair and compassionate manner until the institution was confronted by a student and an attorney who were insistent on taking Georgetown to task for the suspension of the student. The student was provided a fair process; his story was that both had been drinking and there was consent, and her story was there was mutual drinking and he then violently forced himself on her. The hearing board found the student in violation (of Georgetown’s policies, not a violation of the law) and suspended the student, which was upheld on appeal. But when a glorified ambulance-chaser (who coincidentally is married to one of the talking heads on Fox News) pushed back at the University, the institution ultimately charged me with examining “higher standards” for these cases.

In doing that research, I spoke with some of the best minds in higher education, both from student development and legal points of reference. The unanimous result was a recommendation not to make changes to the process, but to continue with it as it was. That did not hold with the University, which was being advised by criminal lawyers who had no true sense of what a student conduct process should look like. The University then changed the burden of proof from a preponderance standard to beyond a reasonable doubt, and also changed the process to have attorneys presenting information on behalf of the parties involved, to have the conduct board chaired by an attorney, and to make federal rules of evidence optional in these proceedings. Other changes were made as well as I was on my way out the door to take over a student conduct program on another campus. Ultimately, this continued until 2004 when the Department of Education ruled that Georgetown violated the rights of sexual assault victims by forcing them to sign non-disclosure agreements in order to learn the outcomes of student conduct proceedings, and the University then began amending its sexual misconduct processes back to processes that conformed with OCR expectations.

The lesson here is that when we change our processes to make them more legalistic, we lose our educational value, which even the courts have consistently held is the primary purpose of our conduct processes. When we make it difficult for people who have been assaulted to be able to report the assault and be able to attain the resources needed to make themselves whole as well as to be assured of a measure of personal safety, we make the pursuit of a higher education an unnecessarily complicated, if not impossible task. This is why I strongly object to Taranto’s use of this topic as a means for promoting the right wing’s war on the rights of women.


Reasonable voices in our profession have suggested that Mr. Taranto should be invited to the Association for Student Conduct’s (ASCA) annual conference to learn more about the profession and see the work that student conduct practitioners do, as well as to learn the nuances that make our work difficult. As a conflict resolution professional, I sincerely hope that ASCA issues such an invitation and the Mr. Taranto accepts, and that there is mutual learning that takes place as a result of this dialogue.

However, I am not holding my breath waiting for this for happen.

If Mr. Taranto had journalistic integrity (please note an attack on professionalism, not a person), he would have done his homework on Title IX and student conduct processes prior to writing his tortured analogy between sexual assault and drunk driving, not after. Instead, Mr. Taranto bought FIRE’s reasoning without critical analysis.

To be clear, Mr. Taranto is an opinion columnist, and not a true journalist in the sense of being a relatively objective gatherer and reporter of genuine news of public interest. His history is full of opinionated assaults on liberal figures such as Secretary of State and former Senator John Kerry, Nobel-winning economist Paul Krugman, columnist Thomas Friedman, and the late Senator Ted Kennedy. Taranto sparked outrage in 2012 when in reference to the mass shooting in Aurora, Colorado he wrote, “I hope the girls whose boyfriends died to save them were worthy of the sacrifice.” Thus, based on Mr. Taranto’s own words, and not mine, I find it unlikely that he will be open to reason or differing points of view. I invite Mr. Taranto to prove me wrong.

My unfortunate and somewhat cynical opinion on this matter is that there are plenty of James Taranto’s in this world, and even if he were to “see the light”, someone else will step in to fill the void. And that is what will keep FIRE’s skewed view of the Universe echoing through right-wing media long after the “logic” of its arguments has been deconstructed and exposed.

If I have one hope after Mr. Taranto’s rant, it is that none of his family members are ever subjected to a sexual assault. I wish this not for Mr. Taranto, but for his family members. No one should ever be subject to an attacker’s assault and be blamed for being victimized.