ARI SHAPIRO, HOST:
Today the University of Virginia held a special meeting to discuss the issue of campus rape and sexual assault. This is in reaction to a Rolling Stone article that documented a pattern of a rape on campus. The issue extends far beyond UVA though. American colleges have spent a lot of time recently wrestling with how to prevent and respond to sexual assault. Our next guest wrote a provocative and controversial opinion piece in The New York Times with the headline, mishandling rape. Jed Rubenfeld is a law professor at Yale University. Welcome to the program.
JED RUBENFELD: Thank you.
SHAPIRO: You say in your essay that, quote, "our strategy for dealing with rape on college campuses has failed abysmally." How, in brief, would you describe that strategy? And in what way has it failed?
RUBENFELD: There are two pieces of the strategy. First of all, for some very good reasons - low arrest rates, low conviction rates, fear of not being believed - victims of sexual assault and rape on college campuses just don't report to the police. The number is fewer than 5 percent report to the police. As a result, these rapists never do time in jail - almost never. As a result, there's no deterrence, and as a result, we have a phenomenal, staggering number of rapes on college campuses.
Now, since 2011 the response pushed by the federal government has been to have colleges and universities all across the country engage in rape trial adjudication processes. And this is just not working. The colleges are not competent to adjudicate and handle these charges. They make mistakes both ways. They dismiss rape charges when they should have found that rape had been committed. And they brand students sexual assailants when it looks like there was no assault. So we're having problems in both directions.
SHAPIRO: In this opinion piece, you take issue with the notion of affirmative consent, which is the standard used at Yale and other campuses. Explain what affirmative consent means to begin with.
RUBENFELD: Affirmative consent is a new way of defining sexual consent. It works like this. If people do not communicate unambiguously - and the communication could be verbal or it could be nonverbal - but if they don't communicate unambiguously, then they have not consented and sexual assault has occurred.
There's a problem with that definition. The problem is that people can do things voluntarily with no assault and yet not communicate unambiguously. If two people get undressed, get into bed, have sex voluntarily - I mean voluntarily - no problems, but they don't communicate unambiguously. So if that happens, that is rape under these definitions.
SHAPIRO: A group of Yale law students has taken issue with your criticism. They wrote a public letter saying, in part, Rubenfeld's assessment is divorced from the facts of students' lived experiences and from the law itself. How do you respond to their complaint?
RUBENFELD: Well, these are students at my law school. It's part of my community. I'm not going to say a negative word against my own students or their letter, but I will say this. If people who are trying to combat sexual violence on campus - and I'm including myself, obviously, in that description. If we can't stand up and say hey, look, what's being done right now is creating a situation where schools are finding sexual assault even though no sexual assault has occurred - and that's what happens under these affirmative consent definitions. If we can't say that, we are making a big mistake. And we don't want to trivialize sexual assault that way. We want to fight sexual assault when it really happens.
SHAPIRO: As UVA and other schools wrestle with how to change the - what some have described as a culture of rape - what's the advice that you would offer?
RUBENFELD: Well, we need to get more women and men victims of sexual assault to report their crimes to the police. That's going to take a change in the way police handle things. So we need retraining and changes at police stations, but then we need to use the college processes as a bridge to get the victims to report the crime to the police. Colleges and should assign a lawyer to sexual assault victims and make sure their rights are respected.
We need to make this process easier. To do that, we've got to make sure that sexual assault is defined on campus the way it's defined in the law - the way it's defined in the real world, not change the meaning of it on campus so that sexual assault on campus covers stuff that isn't an assault. And then we've got to integrate law-enforcement so that a few of these rapists can go to jail and be convicted because I'm telling you, if we can just send a few of them to jail, that is going to change what's happening on college campuses and in frats more than anything else.
SHAPIRO: That's Yale Law professor Jed Rubenfeld. Thanks so much for speaking with us.
RUBENFELD: You're welcome. Thanks for having me.
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