The recent Title IX Listening Sessions of July 13 2017 sponsored by U. S. Department of Education Secretary Betsy DeVos have prompted this week’s forum at Public Seminar. As part of the process, Secretary DeVos also hosted men’s rights activists who champion the cause of individuals claiming to be falsely accused of sexual misconduct. The prior day, Candice Jackson of the Department’s Office of Civil Rights had made controversial comments which implied that sexual assault charges made by women on college campuses were the outcome of mutual intoxication and post-breakup bitterness. The following day she apologized for being “flippant” and came out as a sexual assault survivor herself. The three critical articles published this week arose out of a conversation between three scholars whose work collectively engages gender justice, the psychology of sexual consent, and Title IX.

On Monday, Ali Shames-Dawson argued that policymakers need to address social research on consent that reveals its complexities. In this second post, Katie Gentile examines the events that occurred at the Department of Justice and how they were presented in a New York Times article, to bring to light how the deployment of rape myths and gender tropes flips the script to make the accused rapist a victim, and the accuser a perpetrator. 

As reported by the New York Times (“Campus rape policies get a new look as the accused get DeVos’s ear,” July 12, 2017), Candice E. Jackson, acting assistant secretary for civil rights at the U.S. Department of Education, claimed that 90% of sexual assault accusations on college campuses “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’” This statement was followed up, after much protest by victim rights organizations, by her coming out as a survivor herself, thus, lending some twisted validity to her statement, even as she claimed she misspoke. As a survivor, even she knows women all lie and most sexual assaults are really just about the woman’s regret.

This article was terribly troubling, not only due to the content of Jackson’s statement, but because the article relies on ancient gender tropes: The accused are unfairly ruined and the survivors are hysterically angry women ready to target any poor innocent man. And, as the article makes clear, being accused of sexual assault ruins your life. Being sexually assaulted? Not such a big deal. After all, Candice Jackson is a survivor and she rose to the top of a federal agency. The real victims here are the accused. There was no mention of the fact that there are consequences for knowingly making false accusations, nor that there is a difference between false accusation and a case that is ruled in favor of the accused. That is, if the accusing students in these cases were not charged with false accusation, then we cannot conclude that the sexual assaults did not happen, but just that there was not enough evidence to convict the accused. So whether they were falsely or just inconclusively accused is up for grabs.

The article also missed an irony. The typical Republican approach to crime is to cast a wide net, to be ‘tough on crime,’ even if that means a few innocent men (usually of color) are wrongly imprisoned. That is a small price to pay for being tough on crime, according to their “logic.” It seems this approach works only if the accused are not white college males. We need only turn to Judge Aaron Persky who sentenced a Stanford student who was caught in the act of raping an unconscious women. As he handed down a ridiculously meager, 6-month sentence (to be decreased to 3 months for “good behavior”), he justified it by pointing out that prison would have a “severe impact” on the rapist. The impact of the rape on the woman? Not an issue.

In the end, the New York Times article reflected the current cultural discourse where victims are present as disembodied, unavoidable statistics – at least one in 4 women are sexually assaulted is a fait accompli, after all, rape is a fact of life for women, while falsely accused are the bodies of the story – the sad, depressed, passive (thus, not capable of rape), bodies represented by gut-wrenching stories of near suicide and wrecked lives. So we have a story sterilized of violence: innocent men and victimized women but no mention of potential perpetrators. How is it we constantly trot out the statistics that render the potential futures of women as victims, but have no complementary statistic identifying the potential for men to be rapists? If 1 in 4 women is assaulted, what percentage of men are doing the assaulting? This glaring absence lends further fuel to rape myths and to rape. We see the potential for the assault but somehow blind ourselves in that vision, to who is doing the assaulting. Thus the entirety of the story and our prevention efforts and our standards of evidence focus on the women. The narrative set up absents the perpetrator, rendering the crime a bit sketchy. Did it really happen? Can we really trust her when she didn’t manage to avoid her rape?

As long as rapists remain mythical creatures of our cultural imagination, we will find it impossible to understand how our wonderful son, our sweet neighbor, or our thoughtful partner could rape someone. That is the point. Rape myths survive in part because they keep the rapist as a monster, a stranger lurking in the bushes, usually deranged and often, in our racist culture, decidedly not white. The victim, an innocent, sober, virginal, usually white women, is quickly overpowered. She had no choice. It really wasn’t her fault. This is the only version of rape our cultural imagination can fathom. As long as the reality that 75% of rapes are committed by the quiet neighbor, the sweet son, or the thoughtful acquaintance, and not the stranger, is kept under wraps, rape and sexual assault will never be handled humanely, or justly, or reduced in frequency. Of course this makes rape and sex more complicated, as Ali Shames-Dawson describes in her forthcoming article.

Certainly I’ve written, as has Ali Shaes-Dawson, about the problems with the Obama Administration’s response to sexual assaults on college campuses, their controversial Dear Colleague Letter (DCL), and the wrack-a-mole game they seemed to play, shifting from “no means no,” to “yes means yes.” This focus on consent, first negative then affirmative, was troubling to me as it reaffirmed the neoliberal individual, ignoring the cultural context of gender, coercion and rape. And while I bristled at the myopic focus on consent, not surprisingly, the Trump (“Grab them by the pussy”) Administration is shifting focus from the ideally relational action of consent, to the accusation itself. The accusation, not the precursor consent, nor the sexual assault, is the moment of violence. This shift, of course, emanates from an administration led by a man who has made a career of dodging accusations, recasting the accusers as the criminals.

But this shift is more insidious.

In 2010, students on the campus of Yale University leveraged Title IX after the administration failed to act on profoundly misogynous and violent chants by a fraternity. This use of Title IX to address sexual assault was somewhat effective in that the Obama Administration followed suit with their DCL and colleges were on notice that federal funding would depend on the atmosphere of their campuses and whether colleges took accusations as warning signs that something was amiss and needed to be changed. The New York Times article focused exactly where DeVos and her team wanted: the sad, ruined accused and the embattled victims. In this light, the DCL and Title IX appear like un-nuanced sledge hammers, or in psychoanalytic terms, castrating. The full extent of the DCL and its focus also on the campus climate of misogyny and homophobia was ignored. Thus this revisiting of the DCL is not based on too many open cases, or the “falsely” accused men, it’s due to the fact that women were somewhat effective in being heard.

Failure to investigate accusations of sexual assault (which was commonplace before the DCL), turning a blind eye to misogyny on campus (again, commonplace), failure to tell accusers of their rights to contact the police (you guessed it, commonplace as was the more forceful attempts to actively stop students from going to the police), actively padding Cleary Stats, were suddenly actions that could compromise federal funding. Don’t get me wrong, these actions did not stop. But there were consequences for doing so. Thus sexual assault discourse expanded to include women’s and transgender students’ equal rights to equal access to a college campus. And most importantly, campuses were responsible to not only reduce sexual assault, but to actively promote gender equity. Here the accusation of sexual assault was supposed to be the canary signaling problems around rape culture of campuses. The accusation was a signal in and of itself. This is why DeVos is focusing on the supposed malignancy of the accusation.

This shift in discourse could only result in a backlash. After all, our culture is based on the ideals of male sexual sovereignty, in particular for white, college aged men. Rape myths merely support these ideals where the only “legitimate” and believable rape is one between strangers, one that is overtly violent resulting in multiple serious injuries, with a female victim who is virginal, sober, and of course, white. Thus race, class, and gender are woven through rape myths as white men’s access to all women is deemed legitimate. Watching the fallout now, I can safely say the biggest problem with the Obama Administration’s approach is that it treaded on the all encompassing privileges of white, college-aged, privileged men to do what they want, when they want, with whom they want.

Another reason accusations are considered so dangerous by the DeVos team is the shift from investigations requiring “clear and convincing evidence” to “preponderance of the evidence.” This shift legislated by the DCL is said by the current administration to weight the scales toward accusers. The fact is, due to the nature and contexts of most sexual assaults, this shift is necessary to begin to weight the scales evenly.

The New York Times also failed to adequately analyze the ramifications of the groups DeVos assembled to testify before her decision. The listening day included 3 groups. One group included students and members of 3 men’s rights groups accompanied by their parents. One of the men’s rights groups is known for publishing the names and photos of rape victims and as Ali Shames-Dawson notes, actively blaming women for assaults. In their publicity, these groups each paint a culture where women can willy nilly accuse men of rape without facing any consequences. These groups appear to be motivated by a primal fear where if women have any equality, it must come at a cost to them. It is a kill or be killed gender scenario, or, rape or be falsely accused of rape, scenario.

Then there was the group representing the colleges. This group was almost all administrators, one lawyer who represents accused students and professors, one representative from the AAUW (American Association of University Women), and only one Title IX coordinator. This is extremely important. Most college administrators do not want to be on the hook for Title IX issues and most of them do not deal with Title IX cases directly. Thus the college group was comprised almost entirely of people who do not have direct experience with Title IX cases (except, of course, for the lawyer who defends accused students and faculty members). Administrators also have reason for being ambivalent about the DCL. Few were given increased budgets to provide the mandated prevention trainings for students and employees. Most had to shift Title IX tasks to existing employees, increasing their workloads. Because the DCL acted as a bandaid to the complex racist, classist, heteronormative, patriarchal systems of the culture, some administrators saw themselves squashed between potential lawsuits by “falsely accused” men and/or victimized women survivors, and investigations by the Department of Education with the potential of losing federal funding. In other words, the DCL does not make financial sense for colleges. So many administrators, the DCL resulted in more headaches and for some, this burden outweighed the benefit of a more inclusive campus.

Lost in this melee is that Title IX also includes transgender student rights. Only one transgender group was represented. In the group of victim advocates. This group was comprised of groups that have a solid track record advocating for student victims. However, unlike the men’s group, no parents were included here to paint the picture of how rape impacts a daughter.

Sadly, if we take the New York Times article at face value, it appears rape myths are alive and well at all levels of government; to be accused of sexual assault is worse than being sexually assaulted; and women who cry ‘rape’ are merely regretful drinkers.

Katie Gentile is Professor of Gender Studies in Interdisciplinary Studies at John Jay College of Criminal Justice.