Are anti-sexual assault advocates on college campuses ‘hysterical’?

Stuart S. Taylor thinks they might be, as Susan Svrluga reports over at WaPo. I really only have about five minutes to put this post up — so I’ll let readers respond more thoroughly in the comments but, immediately, this part of what Taylor said struck me as something in need of corrective comment:

[T]o resolve any doubt that the respondents were far from representative of the nation’s college students, consider the facts buried in Tables 3-2 and 6-1 of the AAU survey.

These tables indicate that about 2.2 percent of female respondents said they had reported to their schools that they had been penetrated without consent (including rape) since entering college. If extrapolated to the roughly 10 million female college student population nationwide, this would come to about 220,000 student reports to universities alleging forced sex over (to be conservative) five years, or about 44,000 reports per year.

But this would be almost nine times the total number of students (just over 5,000) who reported sexual assaults of any kind to their universities in 2013, the most recent data available, according to the reports that universities must submit to the federal government under the Clery Act.

You absolutely cannot rely on the numbers reported under the Clery Act if what you want to know is how many sexual assaults are reported to universities and colleges full stop. Firstly, there’s a question about the extent to which institutions comply with the Clery Act in the first place (hence the push for increased fines as a consequence of violation in the Campus Accountability and Safety Act, and increased scrutiny under the Campus SaVE Act). Secondly, and possibly more significantly in terms of numbers, there is a limit as to which reports of assault need to also be reported under the Clery Act. If an assault happened off-campus, if it was not reported to campus security personnel (e.g., campus police), it may not be reflected in a school’s Clery report — even if it was reported to the university in other ways (e.g., a Title IX office, student disciplinary office, etc.).

Legal Literacy Lesson: Procedural Posture

From the outside, lawsuits can be confusing for a lot of different reasons. One of those reasons is that any civil suit is likely to go through many stages before the matter is truly finished (if it is ever truly finished). It takes a long time for most cases to wend through these stages, and it is easy to see the results at any particular stage as more final or indicative of a win or loss on the merits than they may actually be. These stages are sometimes called the procedural posture of the case, and understanding the different stages is important to interpreting any news about activity in a lawsuit.

Take a topical example:  recently a federal judge partially granted and partially denied the University of Illinois’ motion to dismiss claims against it by Steven Salaita. Most readers will be watching this case with interest, and most are likely pleased with the decision. But what does it really mean? Reports on the decision have tended to present it as a big win, with headlines saying that Dr. Salaita was “Vindicated in Federal Court” and that the judge “[Held] That U. of Illinois Broke Contract.” To be sure, Judge Leinenweber’s opinion is quite favorable to Dr. Salaita’s position, and it does mostly represent a win, though some of his claims against the university were dismissed with prejudice, meaning that he will not be able to press them further. The opinion is also notable for some of its musings on the untenable arguments made by the University in defending itself, particularly in claiming that it never had a contract with Dr. Salaita.

But ultimately, this opinion does one thing: it allows the suit to move forward through many subsequent stages. During the motion to dismiss stage, Dr. Salaita (theoretically) needed only to make a plausible case for each of his claims against the University. The University was trying to say he failed even to do that. At this stage, the judge is supposed to take all of the facts alleged in the plaintiff’s complaint to be true. If the plaintiff fails to make a plausible case that they deserve their day in court even when the facts alleged are interpreted most favorably, then the case is dismissed because there is no reason for it to continue. The motion to dismiss stage can be deadly for any suit, so it is certainly a sort of victory to survive past this stage, but it is really more survival than vindication.

From here the next big stage of Dr. Salaita’s case will be discovery — a period where both sides try to gather facts in the run-up to trial. Both sides will get access to emails and other communications, they may discover other people who have information, and they will have a chance to depose witnesses, a crucial part of a case both because it will reveal information and lock in the testimony of those witnesses for trial. After discovery, the University will likely move for summary judgement, a stage somewhere between motion to dismiss and a full trial, in which the University will claim that, given all the facts that have come out in discovery, Dr. Salaita will be unable to make his case. If the University fails there, there will be a trial, then there may be an appeal by the losing side.

(Pardon a brief detour in the discussion. Looming over the entire process is settlement. Discovery is very costly, so the University may be especially motivated to settle now that their motion to dismiss has been denied. Suppose that the University wants to depose 10 people, and suppose each deposition takes 8 hours. Depending on who is taking the deposition, the hourly billable rate might be anywhere from $450 to upwards of $1000. Suppose it’s something in the middle, maybe $700. Just the deposition time itself — setting aside preparation time and assuming that it’s just this one lawyer doing all the work — will cost the University $56,000. That’s a new professor’s salary or a few graduate student stipends for a year and that’s just taking depositions. There will also be time spent defending depositions (what the University will do when their witnesses are being deposed, which amounts to sitting there and occasionally objecting for the record), collecting and reviewing documents, and preparing for trial. The high costs of litigation may often make settlements a good economic proposition for both parties, which is why reading anything about the merits into the existence or amount of a settlement alone, as some did after the University of Colorado settled with David Barnett, is disfavored.)

Let’s return to our discussion of the motion to dismiss. With some caveats, winning at the motion to dismiss stage does not mean Dr. Salaita will definitely win if his case goes to trial. For one thing, he has requested a jury trial, so even if the opinion is read as a reflection of the judge’s views on the merits of the case, a jury might feel differently. When a plaintiff loses a motion to dismiss, however, this constitutes the final decision in the case (where “final decision” is a sort of term of art, the denial may be appealed, of course). For example, when Peter Ludlow’s suit against Northwestern and other individuals was dismissed, this was a reflection of the judge’s view that he had failed to make a case that the law had been violated even viewing the facts alleged in the light most favorable to him.

Any time you hear about a development in an investigation or lawsuit, figure out what the procedural posture of the suit is and do some investigation about what it means. Wikipedia provides helpful pages on these stages written in language that is typically easy for a layperson to understand. Doing this extra bit of research will provide you with necessary context as you evaluate the claims at issue in the dispute, the impact of the decision, and the future of the case.

Philosophical Change in the Shadow of the Law

Womandamus is a new contributor to FP. They have some expertise in law and philosophy, but this series will not offer legal advice or counsel.

It is a well-known idea that people “bargain in the shadow of the law.” In other words, we take all kinds of legal information and facts about the legal system into account when we go through our lives, whether we are deciding to take a plea deal, run a red light, or make a billion dollar deal. Yet we also bargain in the shadow of what we perceive the law to be, rather than what it is. This is unsurprising since (1) most ordinary people are in no position to know what the law is and (2) even most lawyers are not in such a position. Law school does not teach anyone the law because it cannot do so. Rather, it teaches people to “think like lawyers” because the law may turn out to be one thing or another, depending on a whole host of contingencies.

This uncertainty, paired with the extreme coercive power of the law, can make it hard—even scary—to conform our actions to the law or know what the legal effect of our actions might be. This uncertainty and fear has the potential to stand in the way of real change even where everyone generally agrees that some change would be desirable. Philosophy has some problems, as you all know, that are increasingly involving the legal system head on. At least some of these problems are widely-recognized, and many philosophers are aching for some change. However, the shadow of the law looms menacingly over their efforts, whether this is reasonable or not.

Fears about defamation suits, concerns about due process, confidentiality requirements, complaints about Title IX, and other legal actions may be more or less warranted, more or less reasonable, but they often have the effect of discouraging people from pursuing change in philosophy, particularly in a public way. Philosophers and graduate students may fear coming forward or naming their colleagues lest they be sued for defamation or in violation of a confidentiality agreement with their University. Even if a case ultimately ends in a quick dismissal, it is still costly and exhausting to be on the receiving end. Many non-lawyers (and, I would venture, especially philosophers, who tend to be privileged and are less likely to be the target of heavy policing) will never have an interaction with the legal system beyond paying parking tickets and doing jury duty, so the fear of being involved in a lawsuit in any capacity can be crippling.

As the profession continues to grapple with issues relating to climate, it will increasingly confront the law. In a series of future posts, I would like to offer some analysis of legal issues that the profession has already confronted in some form or another: retaliation, defamation, settlements, due process, Title IX in general, and other topics that might improve legal literacy among philosophers. These posts will focus on the U.S. context, but Canada and the U.K. may be similar. It is important to remember that the answer to any legal question will always depend, in part, on what jurisdiction you are in. While I can’t offer legal advice, I do hope to clear up some general misconceptions about the law in a way philosophers can understand. If you have topics you would like to see addressed, please leave a comment, and I’ll try to get to them.


Rape conviction rates up, but…

It was reported last week that conviction rates for rape in the UK are higher than they’ve ever been. 63% of prosecutions in 2012/13 resulted in a conviction, which is 5% more than five years previously. Similar success is reported regarding domestic violence. This is, of course, good news. However, it’s not quite a straightforward success.

First,  the ‘conviction’ rate includes all convictions resulting from the prosecution, many of which are not actually for rape (someone might, for example, be tried for rape and convicted of a lesser sexual offence). In 2010/11, the actual rate of conviction for rape was 33% out of an overall conviction rate of 58%. The same is likely to apply to the reported figure for 2012/13.

Second, as the initial linked article points out, another main complaint about the legal process concerns the proportion of reported rapes which result in a prosecution. According to this article, an annual average of 15 670 reports results in an average of 2 910 prosecutions. That’s about 19%. So even if 63% of those 2910 cases result in convictions, that’s a mere 11% of the original reported total. In other words, 89% of reported rapes don’t result in any sort of conviction. Bear in mind that the Crown Prosecution Service recently released a report (pdf) which establishes pretty comprehensively that false allegations of rape are extremely rare.

Third, yet another problem with the legal process is the fact that so many people are discouraged from reporting rape in the first place. For fairly obvious reasons, statistics on under-reporting are hard to come by or verify (one estimate attributed to the Ministry of Justice in the Independent article above is 60 000 to 95 000 — that’s quite a variation between the upper and lower limits). But it’s apparent that this is a problem, and it’s apparent that even if conviction rates continue to increase, there’s a lot more to be done to improve the legal and policing environment which results in under-reporting and under-prosecution.


Walmart Case: Women don’t have enough in common

A quick update on the Walmart case that ednainthesea discussed here. The US supreme court has decided that one and a half million women cannot bring a class-action suit against Walmart, in which they were to argue that the corporation’s record on the promotion and pay of women belies institutional sex discrimination. The justices agreed unanimously that the suit failed to meet a particular technical requirement. More interestingly, a 5-4 majority ruled that the women do not have enough in common to bring a class action suit; according to Justice Scalia, the necessary common element is “entirely absent”.

You can read the full opinion here (direct link to .pdf). Part II of the court’s opinion (pp. 8-20) explains the reasoning behind the no-common-element decision. The appended dissenting opinion, written by Justice Ginsburg, takes issue with this part of the opinion (post, pp. 1-11).

Whatever the niceties of the legal arguments, it seems clear that the decision has greatly diminished the chances that large class-action suits could be used to address systemic discrimination.