College sexual assault is notoriously difficult to adjudicate. Two students have sex. More often than not, both have been drinking. When one—or, perhaps, bafflingly, both—partners report the incident to the campus Title IX office as an assault, fact finders have to rely almost entirely on the conflicting testimony of the two people involved to determine who was able to give consent, and who wasn’t.
The current system is designed to place blame on one person—in practice, usually a man. In her latest piece for The Atlantic, writer Caitlin Flanagan argued that the system has “infantilized college women, demonized male sexuality, and [been] responsible for harsh punishment meted out to an unknown number of college students, almost all of them male.” Just because a complainant is a woman, Flanagan suggested, fact finders shouldn’t automatically assume she is the victim. The piece left me with a question, which I put to Masthead members on our forums: What if Title IX offices used androgynous names in incident reports, and adjudicated cases without knowing the gender of the individuals involved? While it would likely be logistically difficult to enact this kind of policy, grappling with the issue reveals why it’s so difficult for campuses to handle cases of sexual assault.
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Sexual Assault, Without Gender
By Caroline Kitchener
Because of entrenched gender stereotypes, multiple experts told me, people are hard-wired to make a series of, sometimes conflicting, gendered assumptions about sexual assault. A man is sexually aggressive. A woman is more likely to be the victim—unless, of course, she was wearing a short skirt or had too much to drink. Then she was asking for it. How much do those assumptions affect cases of campus sexual assault?
“In the traditional case, where there’s a man that’s been accused and an alleged female victim, there are going to be biases in the way we see both the perpetrator and the victim,” said Amy Hackney, professor of psychology at Georgia Southern University, who studies juror biases in sexual assault cases. “There are deep-seated attitudes that we have learned from our parents, from our culture, from other trusted authority figures, that have to do with the way men and women should respond to one another.”
It is, technically, illegal for fact finders to assume that the woman is the victim and the man is the perpetrator. “Schools have to treat claims by male complainants the same as female complainants,” or risk a reverse discrimination claim, said Erin Buzuvis, a law professor and Title IX specialist at Western New England University. But in practice, she told me, subconscious biases inevitably come into play. Campuses could try to eliminate those stereotypes by using androgynous names (“Taylor Doe” instead of “John” or “Jane”) and changing gender-identifying details in reports issued to fact finders.
“It would remove the role of gender stereotypes, which can be harmful to men and women,” Buzuvis said. “It might make it easier for adjudicators to get to the truth. It also might be more assuring to the parties involved—that the decision wasn’t influenced by the patterns of behavior, but actually was based on the information specific to the matter at hand.”
Consider a common scenario for a fact finder. A case involves two parties who testify they were drinking heavily at a frat house—no one knows exactly how much—and there’s no hard evidence other than that testimony. Because women generally have to consume less alcohol than men to become incapacitated, the fact finder “might assume that she was drunk to the point of incapacitation, and he was not,” Buzuvis said, making the woman appear to be the victim. Knowing the genders of the two parties makes it easy to draw an inference that may well be wrong.
Some stereotypes involved in sexual assault cases are “based in reality,” Buzuvis told me. Typically, men actually are in a position to both physically overpower women and consume more alcohol before blacking out. Men are also statistically far more likely to be perpetrators: 90 percent of rape victims are women. But that doesn’t mean fact finders should rely on these generalizations. “If there is a physical overpowering that is part of the case, that should come up in testimony,” Buzuvis said. “It shouldn’t be assumed based on the characteristics of either party.”
A gender-blind policy would be extremely difficult to implement, said Anthony Walesby, who runs the Title IX department at Illinois State University, and has been investigating college sexual assault cases for 25 years. These cases, he said, are full of gender-specific details: What were the specifics of the sexual encounter? Who belonged to the fraternity house where the encounter took place? Who are the roommates who are testifying?
“Key facts from most cases would have to be missing in order to keep the reader unaware of the sex of each party,” Brian Harris, a lawyer with experience as both a prosecutor and a defense counsel in sexual assault cases, wrote on our Masthead forum. “I’ve read literally thousands of pages of police reports documenting these matters and it never takes long, names omitted or not, to start to figure out what genitalia each person most likely has.” Even if schools could effectively disguise the gender of the complainant and respondent, fact finders may still fall back on their biases and guess at the parties’ genders, Hackney told me. “It’s what humans do,” she said. “We try to create stories to get a sense of what is going on.”
When Walesby trains new Title IX investigators, he stresses the importance of objectivity. “We start with one side,” he tells his team, “but there are many, many sides to a sexual assault case, and we have to wait until the very end to start to analyze the evidence.” Rebecca Veidlinger, a Title IX investigator who worked for Walesby at the University of Michigan, said that his Title IX department was, compared to others she’s worked in, uniquely effective. She received far more training and support from Walesby than from any other supervisor. Title IX offices that lack those kinds of resources might have a harder time warding against gender biases.
It’s hard get to the truth in cases of college sexual assault, which often lack evidence other than testimony. That makes it a little too easy to lean, lazily, on inherent gender stereotypes. If a gender-blind policy is indeed, as Walesby said, unfeasible, colleges should instead invest in objectivity training, and work to rid their fact finders of the basic human instinct to assume. That will lead to a system less likely to, as Flanagan wrote, infantilize women and demonize male sexuality—and more likely to, in the end, find out what actually happened.
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