By Wendy Kaminer, author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship.
Published in The Atlantic Nov. 21, 2012
"Sexual Assaults Roil Amherst," a New York Times headline declares. The campus is in crisis over student accusations of assaults met with administrative indifference to a culture in which sexual misconduct and sexist speech thrive. It's a depressingly ordinary controversy, but this time it was sparked by extraordinary charges of rape and malfeasance, published in a college newspaper: Former student Angie Epifano described being raped by an acquaintance on campus and eventually institutionalized by administrators after they refused to pursue her complaint and she complained of suicidal thoughts.
It's a remarkable story but only a little more remarkable than the apparent assumption that it's entirely true. "Alleged Sexual Assaults Roil Amherst," the Times should have reported.
I don't assume that Epifano's story (among others) is false. I do assume (at least for the sake of argument) that it was offered in good faith, that she believes that she was raped and badly mistreated (perhaps wrongly imprisoned) by college administrators. Her report is generally plausible, but responses by her alleged rapist and the administrators, counselors, and doctors she mentions might be equally plausible. (As far as I can tell, none are publicly available.)
In any case, plausibility isn't proof, obviously, and reading Epifano's "wrenching account," you can't possibly evaluate the accuracy of her perceptions or recollections. Neither, it seems, can the New York Times, which reports that she is in Europe ("friends say") and could not be reached for comment.
But accepting her statement of the facts, you can evaluate her beliefs about how alleged rape victims and rape accusations should be treated. Epifano says that she was raped by a fellow student in May 2011 and reported the attack about a year later, this past spring, to a college sexual assault counselor. She says her counselor questioned her rather skeptically, asking if "it might just have been a bad hook-up." Her request to change dorms was denied, she was advised to "forgive and forget," and assured that her fears of being raped again were unfounded and that she was safe remaining on campus.
The counselor reportedly discouraged Epifano from pressing charges, because her alleged attacker was about to graduate and a disciplinary hearing might not vindicate her claim. Accompanied only by a faculty adviser, she would have to face him (and his faculty adviser) and prove that he had raped her. "It wouldn't get you very far to do this," she reports being told.
Put aside questions about the accuracy of Epifano's recollections and the soundness or gross insensitivity of the counselor's advice. Never mind the absence of discussion about reporting the alleged attack to law enforcement; rape is, after all, a felony, which courts are better equipped to address than colleges. Focus instead on Epifano's reaction to the prospect of a disciplinary hearing:
Hours locked in a room with him and being called a liar about being raped? No, thank you. I could barely handle seeing him from the opposite end of campus; I knew I couldn't handle that level of negativity.
I sympathize with Epifano's feelings but still wonder: If she wasn't willing or able to testify against her alleged attacker in an informal hearing, if she wasn't capable of handling questions about her accusations, what did she expect administrators to do? Simply take her word that a rape had occurred a year earlier and punish her "rapist" (perhaps by expelling him) without giving him a chance to confront his accuser and present his side of the story?
In fact, if Amherst was in compliance with federal Department of Education guidelines, the burden of proof on Epifano would have been slight, and she could have been shielded from questioning by her alleged attacker. A 2011 directive from the Department's Office for Civil Rights errs on the side of protecting the accuser's feelings in these cases, instead of the rights of the accused. OCR requires colleges and universities to use a preponderance of evidence standard in evaluating allegations of sexual assault. That is the lowest possible standard of proof, requiring a hearing officer to be only "50.01% certain" that the accused is guilty as charged.
OCR guidelines also strongly discourages schools from allowing a student accused of sexual violence to confront his accuser, because "allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating." (OCR does not consider the trauma that may be inflicted on a student wrongly accused and denied the right of confrontation.)
Maybe Amherst was out of compliance; maybe Epifano's counselor was ignorant of the relatively new OCR rules; maybe Epifano misunderstood the counselor's advice. Amherst is reportedly investigating her case and its treatment of sexual assault claims, and the counselor who advised her has resigned.
Epifano dropped out of school, after the administration denied her request to study abroad in South Africa. "It's for the best; Africa is quite traumatizing, what with all those horrible third world conditions," Epifano recalls being told by her dean. Maybe she recalls correctly; maybe not. But given the extreme emotional instability that she describes -- deep, possibly suicidal depression and intense fearfulness -- it's hard to know exactly how college administrators could have helped her. Consider how Epifano responded to the denial of her request to study in Cape Town:
Living was difficult. Each day I woke up and wondered around in a daze. At night I stared blank faced at a wall and curled up in my chair in a fetal position. I couldn't talk with people. If I talk with them they might become infected with my dirtiness. I stopped eating. I stopped sleeping. I secretly hoped that one day on a run my heart would just stop and no one would have to see me again. I wasn't worth anything anyway.
If Epifano's account of her state of mind is accurate and not an exercise in self-dramatization, then I have some sympathy for administrators who reportedly wanted to "monitor" her. I'd venture to describe her as deeply troubled and wonder if her troubles were exclusively attributable to the reported rape.
Is rape necessarily this traumatic? Are all rapes equal in the damage they inflict? Yes, according to some popular feminist wisdom. No, according to the diverse experiences of rape victims I've known -- including women who've been raped while hitchhiking and by strangers who broke in to their apartments, as well as women raped by dates or acquaintances. Years ago I slept with a guy who made a veiled threat to kill me if I didn't. The sex was perfunctory and not at all memorable; what I remember most clearly is the threat.
I'm not criticizing or judging Epifano for being acutely frightened and depressed. I'm not presuming to tell women how they should or shouldn't react to being raped. Quite the opposite. I'm simply suggesting that different women react differently, according to their different circumstances, strengths and vulnerabilities. I'm not denying the horrors of rape and the outrage, shame, or fear it can engender, but I am questioning the assumption that it naturally and inevitably breaks women down. I'm wondering if that assumption isn't sometimes self-fulfilling.