Rape laws and policies are shaped by surveys where every rape allegation is uncritically accepted and none are tested against competing claims of innocence. The impact of these surveys on public policy is significant, even draconian. Perhaps the best example is that the infamous April 4, 2011 "Dear Colleague" letter cited one such survey as a justification to diminish the due process protections afforded persons accused of sexual misconduct on college campuses (almost always young men). That letter stated: "A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college."
How reliable are sexual assault surveys? In fact, they likely are unreliable, perhaps significantly unreliable, and we respectfully suggest that there needs to be a national conversation about the uncritical acceptance of these surveys to diminish the due process rights of persons accused of sexual assault in American colleges. Unfortunately, the sexual assault milieu is so terribly politicized that attempts even to broach the subject typically are met with vitriol and name calling, not serious, much less respectful, dialogue.
Let's look at the facts. A recent scientific study shows that some women lie on surveys to minimize their consensual sexual encounters, likely because of societal double-standards that find it acceptable for men, but not women, to engage in sexual activity. These lies are designed to bring women in sync with their expected gender role. When women believe they can lie and get away with it, they understate the number of their sexual partners. In contrast, when women are hooked up to a polygraph and believe their lies will not go undetected, they generally report more sexual partners than when they felt no such compulsion to be honest. (Men lie too -- but exactly the opposite: they exaggerate the number of sexual partners when they think their lies won't be detected.)
Should it surprise anyone, then, that some women report in surveys that they've been subjected to unwanted sex even when the sex was consensual in order to be in sync with societal expectations about gender roles?
Feminist writers acknowledge that some women lie about rape to "defend their femininity." Amanda Marcotte once wrote that "the idea that it's shameful to just have sex because you want to" is "the reason that you have false rape accusations in the first place." Marcotte noted that "women who aren't ashamed of having sexual adventures like group sex-even ones that go bad-don't use rape accusations to cover up their choices. It's the women who are afraid they'll be called sluts if it gets out that make up these rape stories."
Likewise, Amanda Hess once explained that given women's adherence to their expected gender role when it comes to sex, it is "inevitable," among other things, that a woman who "had desired the sex all along . . . must defend her femininity by saying that she had been coerced into sex."
These attitudes are entirely consistent with what we know about the reasons for false rape claims. A perceived need to cover up an illicit sexual encounter is a primary motivation for false rape claims. One of the common motives cited by experts for false rape claims is "remorse after an impulsive sexual fling . . . ." Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, S. Taylor, K.C. Johnson at 375 (2007). Given that, then it must be concluded that the so-called "hook-up culture" is fertile ground for false rape claims. It is a proven fact that there is significant regret asymmetry between men and women: women are more remorseful following casual sex than men. A study shows how common remorse is for women following one-night stands: "Overall women’s feelings were more negative than men’s [about one-night stand casual sex]. Eighty per cent of men had overall positive feelings about the experience compared to 54 per cent of women. . . . . The predominant negative feeling reported by women was regret at having been 'used'. Women were also more likely to feel that they had let themselves down and were worried about the potential damage to their reputation if other people found out. Women found the experience less sexually satisfying and, contrary to popular belief, they did not seem to view taking part in casual sex as a prelude to long-term relationships." Another recent study has confirmed the regret asymmetry between men and women. Amy Bonomi, a professor of human sexuality at OSU specializing in domestic violence and assault, explained: "Women tend to feel bad after having a random hook up." Typically men are not upset by these occurrences. Bonomi attributed this situation to society's "gender double standard" that men are expected to be more sexually forward than women. And yet another new study shows that women attending universities who have casual flings are more likely to suffer from depression than people in ‘romantic’ relationships.
That some women who regret sex lie about rape is a fact. Why should it be surprising when they lie on surveys to re-characterize consensual behavior as non-consensual? That rape surveys are unreliable can be inferred from the irrefutable fact that when rape claims are actually reported to police or campus authorities and subjected to competing claims of innocence, and when the evidence is actually examined, the majority of claims can't be classified one way or the other as rape or non-rape, founded or unfounded, true or false. This is true even using the preponderance of the evidence standard, as shown in the handling of sexual assault claims on college campuses across the United States. (The research of Dr. David Lisak, well respected in the feminist community, actually supports this conclusion -- when they are examined, most rape claims cannot be definitively classified as rape.) Since most sexual assault claims that are subjected to scrutiny can't be definitively classified as sexual assault, why, on earth, do we assume that every unscrutinized assertion of sexual assault posited in a survey should be regarded as an actual sexual assault?
And what about the meme that the official numbers of reported sexual assault are so low because most women are fearful about reporting their ordeals? In other words, would the number of sexual assaults jump up and approach the one-in-five number arrived at in surveys if only we included anonymous reporting in our sexual assault statistics? No, because we already include anonymous reports of sexual assault in the official stats on college sexual assaults (the Clery Act requires that colleges include anonymous reports in compiling stats regarding sexual assault). Despite this, year after year, the prevalence of sexual assault is not even in the same universe as the one-in-five stat. Chad Hermann's famous article One-in-One-Thousand-Eight-Hundred-Seventy-Seven aptly demonstrated this. (Mr. Hermann went even a step further. He took the Clery Act numbers -- which, again, already include anonymous reports -- and then applied the underreporting percentage frequently cited by sexual assault victims' advocates in an effort to jack up the prevalence of sexual assault. Even using THEIR OWN UNDERREPORTING PERCENTAGE, Mr. Hermann surprisingly demonstrated it's not one-in-four or one-in-five, it's one-in-several hundred).
The National Institute of Justice made this startling assertion: "Surveys of men and women on college campuses show a striking disparity in the proportion of women who report being assaulted and the proportion of men who report (even anonymously) being perpetrators. For example, in the Campus Sexual Assault survey, 19 percent of the women reported experiencing a completed or attempted sexual assault since entering college, while 2.5 percent of the men reported being perpetrators." Why this disparity? The National Institute of Justice posed this as one possibility: "Men and women may have different perceptions of the same incident."
So why is it assumed that sexual assault surveys are the moral equivalent of truth serum where women are incapable of telling anything but the one, objective truth? The fact is, people exaggerate, lie, and claim their behavior is better than it really is in all sorts of public pronouncements. They exaggerate the hours they work; how often they go to church; their height and their weight; and their altruism during emergencies. White voters lie in surveys about their willingness to vote for a black political candidate. Heck, people even lie about the reason they buy a new computer. Nearly one in four women admitted to exaggerating or lying in social media about key aspects of their lives between one and three times per month.
So why is it verboten to suggest that some women defend their femininity by claiming the consensual sex they engaged in was non-consensual? Or that men will defend their masculinity by understating the incidence of non-consensual sex they are subjected to?
The issue we raise isn't some abstraction, and we do write this to engage in some sort of "Oppression Olympics." The fact is, sexual assault surveys are used to justify the policy of diminishing the due process rights of students accused of sexual assault. There are legitimate reasons for doubting the reliability of these surveys, and these concerns should not be dismissed as rape apology, misogyny, or slut shaming. Nor should we be demonized for merely raising the issue. Prof. Cynthia Bowman of Cornell decried the "Dear Colleague" letter's adoption of the "preponderance of the evidence" standard for persons accused of sexual assault: “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma.” She added: "To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She said that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Prof. Kevin Clermont said that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.” (Alas, their voices were not been heeded at Cornell: Prof. Clermont wrote to me: ". . . battle and maybe war lost.")
Likewise, in the American Association of University Professors' (AAUP) first report on the topic of campus sexual assault, spearheaded by the AAUP's Committee on Women in the Academic Profession, Subcommittee on Sexual Assault on Campus, the AAUP makes clear that it does not support the Department of Education's mandate that schools use a "preponderance of the evidence" standard -- the lowest in our jurisprudence -- for college disciplinary proceedings involving sexual assault. The higher "clear and convincing evidence" standard isn't just preferable, it is "necessary" in order to insure that students are afforded the due process they are entitled, according to the report.
We don't pretend to have all the answers -- we've been wrong plenty of times and we might be wrong here. We think we have the right to raise the question. This is an issue that ought to be seriously, and respectfully, discussed.