What the Rolling Stone story tells us about campus sexual assault
By Matt Kaiser and Justin Dillon
Based on our experience handling dozens of campus sexual assault cases at 19 universities across the country, it looks like Rolling Stone took a page out of the playbook from most colleges when they handle allegations of sexual assault on campus. The article and the investigation that led to it was long on emotional response and short on truth-searching.
One part of the story that seems to be true is that something very traumatic happened to Jackie. Her suitemate said that after the night of the alleged rape, she withdrew into her room and didn’t talk to others. The woman who started at U.Va. as a bright and enthusiastic person transformed into a shell of herself.
That transformation is striking — and it looks like the school should have done more to help Jackie.
But, in light of the significant problems with her story, what she says happened that night just couldn’t have happened. Even her own roommate said that she feels Jackie misled her.
What this suggests to us is that the takeaway of the Rolling Stone controversy is that just because a person went through a traumatic experience — and there is no reason to doubt that Jackie had something happen to her — that person’s report of what happened shouldn’t be accepted uncritically.
The mantra of the recent action around campus sexual assault has been that women just don’t falsely report rape — that a person making a sexual assault claim should be believed. Jackie’s story shows the limits of that assumption.
And the Rolling Stone story isn’t the only example — at two separate schools in New Hampshire, two separate women are being prosecuted by the police for making false reports of campus sexual assaults.
We don’t know why a woman would make a false accusation. But what the discrepancies in Jackie’s story make clear is that it does happen; any system of resolving these cases that assumes otherwise is bound to be flawed.
In its apology, Rolling Stone said that it found the story of Jackie — the woman who reported the gang rape at a fraternity party — credible because she neither said nor did anything that made the reporter, or Rolling Stone’s editors and fact-checkers, question Jackie’s credibility. In the story, her friends and rape activists on campus strongly supported Jackie’s account. She had spoken of the assault in campus forums.
Outrage and emotion trumped good journalism. The magazine didn’t push to talk to the people who could have shed light on what happened because they “were trying to be sensitive to the unfair shame and humiliation many women feel after a sexual assault.” Out of a concern for victims, the magazine decided not to do its job.
This is precisely what happens at college campuses across the country as they investigate these cases. Students are accused, told only the thinnest of details about the accusations, and given no meaningful ability to investigate or present their side of the story.
Campus hearings on these cases don’t help much, either. In our experience handling these at colleges around the country, the young woman is almost uniformly distraught. The young man, believing himself to be falsely accused, usually comes across like one might expect a falsely accused college student to come across — as cold, angry, and incredulous. So the panelists at the hearing often side with — and do not closely question — the sympathetic person, while leaving their hard questions for the less sympathetic one. A search for truth, this is not.
Virtually every campus in America also prohibits an accused, or his attorneys, from trying to interview witnesses about what happened. The schools’ view is that if a witness is approached by someone trying to defend himself, it could be uncomfortable for the person bringing the complaint.
But schools have forgotten what Rolling Stone has just been reminded — the search for truth is often uncomfortable.
And the problems don’t stop there. Often, in campus hearings, an accused person can’t ask questions of the accusing student. In some cases, a male student is told a date but not the name of the accuser or any of the details of the accusation.
The discrepancies in Jackie’s story came out only because the case went public. Everyone read what Jackie said and critically evaluated it. We were able to see how the mere fact of trauma does not mean that everything the person who experienced the trauma says is true. But in campus cases across the country, men are accused, found guilty and expelled, without anyone knowing, seeing, or challenging what happens.
Sexual assault, on campus or elsewhere, is serious. It deserves serious discussion and attention. And women who experience trauma should receive support. But Jackie’s story shows that an experience of trauma isn’t the end of an inquiry; it’s the start.
Just as Rolling Stone shouldn’t have thrown away the practices of good journalism out of concern for victims of sexual assault, colleges shouldn’t throw out basic fairness in investigative practices when handling these cases.
If Jackie had named her attackers, they would almost certainly have been expelled and likely prosecuted. For, apparently, nothing. Yet that is exactly what’s happening at campuses across the country every day; Rolling Stone just isn’t there to cover it.
Matt Kaiser and Justin Dillon are partners at Kaiser, LeGrand & Dillon PLLC, a law firm in Washington, D.C, that has defended college students in campus disciplinary proceedings.