From what I’ve read of the Broadwater exoneration, including
Bray’s piece, my feeling toward Sebold was initially rather jaundiced – that
she had the wherewithal in later years, as a successful author who was able and
willing to reflect on her traumatic experience, to realize that her accusation
against Broadwater might be a mistake, and to do something about it. I admit
I’ve reserved judgment a bit more since reading Laura Miller’s piece in Slate –
it’s one thing to read and acknowledge in the abstract that Sebold’s rape was “brutal,”
quite another to read the cruel details and see the depth of her trauma. But I
still think Bray is closer to the truth than Miller.
Bray’s discussion of how internalized racism affected
Sebold’s judgment also made me think about the question of racial disparities
in campus sexual assault accusations and adjudications. This question arises
against a backdrop where universities have ignored or bungled complaints for
even the most egregious assaults – not just nebulous “he said, she said”
scenarios. And it’s used by the Right as a cudgel to claim that the real campus
epidemic is in false accusations, not sexual assaults.
Specifically, I remembered an Atlantic article from 2017 by
Emily Yoffe. I have some reservations about her – for instance, I don’t share
her hand-wringing about cancel culture or Al Franken’s ouster, and I’m not as
worried about #MeToo beyond specific racial dynamics. While her 2013 Slate
piece, “College Women: Stop Getting Drunk” was more nuanced and informative
than the clickbait title suggests, I thought there was a subtle but powerful
blind spot in its framing. (If you can contemplate changing binge drinking
culture on campus, you could simultaneously contemplate how to instill more
respect for women in male college students, while changing the culture of
negligence in university administrations.) So I don’t know for sure when she’s being
intellectually honest, or when she’s leaving some key details or context
outside her frame of analysis. Still, she presents enough compelling information
in the Atlantic piece for me to take the issue seriously as one that needs
further study:
“Since there are no national
statistics on how many young men of any given race are the subject of
campus-sexual-assault complaints, we are left with anecdotes about men of color
being accused and punished. There are many such anecdotes. In 2015, in The New
Yorker, Jeannie Suk Gersen, a Harvard Law School professor, wrote that in
general, the administrators and faculty members she’d spoken with who ‘routinely
work on sexual-misconduct cases’ said that ‘most of the complaints they see are
against minorities.’”
“Colgate University was recently
investigated by the Office for Civil Rights for potential race discrimination,
a Title VI violation, in its sexual-assault adjudication process. The
university was cleared in April, on the grounds that the numbers did not allow
OCR to conclude that race was a statistically significant factor in Colgate’s
adjudications—in any given year the number of men of any race referred for
formal hearings was in the single digits. … But the report did bring those
statistics to light, a rarity. In the 2013–14 academic year, 4.2 percent of
Colgate’s students were black. According to the university’s records, in that
year black male students were accused of 50 percent of the sexual violations
reported to the university, and they made up 40 percent of the students
formally adjudicated.”
Yoffe emphasizes the difficulty of drawing conclusions
without systematic data, but highlights possible causes suggested by university
faculty and staff she interviewed:
“Janet Halley, a professor at
Harvard Law School and a self-described feminist … writes that ‘morning-after
remorse can make sex that seemed like a good idea at the time look really
alarming in retrospect; and the general social disadvantage that black men
continue to carry in our culture can make it easier for everyone in the
adjudicative process to put the blame on them. … Case after Harvard case that
has come to my attention, including several in which I have played some
advocacy or adjudication role, has involved black male respondents.’”
“Students are pushing their
boundaries and that many hook up with a partner of a different ethnicity for
the first time. But then, ‘if there is any kind of perceived injury—emotional
or physical—when you cross racial lines, there’s likely to be more animus.’”
“As the definition of sexual
assault used by colleges has become broader and blurrier, it certainly seems
possible that unconscious biases might tip some women toward viewing a
regretted encounter with a man of a different race as an assault. And as the standards
for proving assault have been lowered, it seems likely that those same biases,
coupled with the lack of resources common among minority students on campus,
might systematically disadvantage men of color in adjudication, whether or not
the encounter was interracial.”
“[Melissa Kagle, former Colgate
professor] told me that university administrators, in their zeal to address an
issue that was a top priority of federal regulators, had gone after rumors and
third-party reports of assaults, pressuring some female students to pursue
complaints. I spoke with two women who made harassment complaints against a
Rwandan student who was later expelled. One said she hadn’t wanted to make a
complaint, but was told that it would help another woman feel safer; neither
believed expulsion was the right outcome.”
Another possibility, of course, is that sexual assault
victims on campus are more likely to report men of color as opposed to white
men. It would also take more data to understand what percentage of campus sexual
assault complaints are ambiguous “he said, she said” cases – the kind the
public imagination fixates on disproportionately – rather than obvious assaults.
Another variable is how well the complainant knew the accused in various cases (the
better she knew him, presumably the less likely she would be to misidentify
him). Still, Melissa Kagle’s perspective, at least as reported by Yoffe, is thought-provoking:
“Kagle viscerally understands the
horror of rape because as a young woman she experienced it herself. But she
told me that over the past several years, she’d become deeply concerned that in
some cases fear of assault on campus was clouding people’s judgment and
creating a reflex to presume guilt. In several cases that she’d come to know
closely, at first by happenstance and then because minority men began to seek
her out for assistance, ‘people believed something terrible happened when it
hadn’t.’
Kagle believes that men of
color—and especially foreign men of color, students from Africa and Asia—were
uniquely defenseless when charged with sexual assault, typically lacking
financial resources, a network of support, and an understanding of their
rights.”
Yoffe and the university personnel are suggesting that a
non-trivial share of accusations against male students of color might be, if
not willfully false, then based on a racialized misinterpretation of the
encounter. Of course, extensive research has shown that false rape accusations
are rare. But, as Blay explains, “False rape accusations are rare, yes, but one
must reconcile that with the fact that 52 percent of people falsely accused of
rape are Black men, and Black men convicted of sexual assault are 3.5 times
more likely to be innocent than white men.”
Maybe the racial disparities alleged by Yoffe and
like-minded faculty are really a nothing-burger based on a few scattered
anecdotes. For one thing, most assaults are unreported, and those that are
often don’t make it to formal adjudication. (Also side note – Halley has similar
allegiances to Yoffe.) But the sordid history of rape allegations against Black
men in the US suggests it’s a legitimate concern on college campuses, and a major
objective of campus reforms is to make assaults easier to report and
adjudicate.
And yet, in a system where young women are already doubted,
shamed, and too often subjected to the trope of “morning-after regret,” what
would it mean if college campuses became more circumspect in handling cases
with a Black or other racialized defendant, especially if the complainant was
white*? The prospect of examining complaints against racialized male students
for bias is a minefield, since it could involve cross-examining the complainant
and picking apart her story – precisely the type of practice that is under
scrutiny for disparaging and re-traumatizing victims.
Moreover, many of these defendants may in fact be guilty,
and would assault other women if the university cleared them of wrongdoing using
a higher bar for evidence. These victims continue to see their perpetrators on
campus or even share classes with them, while universities too often do
nothing. As a result, many victims drop out of school, losing scholarships,
tuition dollars, and years of fulfillment and good income that could come from
earning a degree and pursuing a career in their field. Instead, they spend
years coping with their trauma, while also struggling to make a living and grappling
with trust issues in future relationships.
So while wrongful expulsion from college isn’t a trivial
outcome, it must be balanced against the widespread incidence of young women
wrongfully being driven from college themselves by trauma and negligence. And
while young women, especially white women, would ideally be aware of their own
biases in reflecting on sexual encounters with Black men, it shouldn’t come at
the cost of them self-gaslighting and hesitating to report assault. Also, importantly,
racial bias toward Black male sexual assault defendants isn’t the only dynamic
at play. Black women who report being raped by Black men are sometimes attacked
by fellow community members, not least among them other Black women.
If it’s not apparent by now, I’ve never been raped,
assaulted, stalked, or subjected to intimate partner violence. No doubt this
impacts my reaction to the Sebold case and the question of race in campus
sexual assault cases. I’m sure trauma narrows or overrides a victim’s intellect
in ways that I can’t understand, even decades after the event. But I’d say my
opinion is still relevant because my own experiences give me an appreciation of
what’s at stake. I know what it feels like to fear for my safety.
Also, perhaps it’s relevant not in spite of the fact that I’ve
never been sexually assaulted, but because of it, specifically with
Black men in sexually charged situations. My experiences are among the many
mundane reminders of what should be obvious – that most Black men aren’t
rapists. According to the Bureau of Justice Statistics’ National Crime
Victimization Survey (NCVS), based on self-reporting by victims, 8 out of 10
rapes are committed by someone the victim knows. Over half of rapes and sexual
assaults are intraracial while fewer than 40% are interracial. (I haven’t figured
out how to use the raw data to disaggregate victim and perpetrator data by race,
so I don’t know what victim/perpetrator race combinations are most paramount among
interracial rapes.) Black perpetrators are overrepresented in the FBI’s Uniform
Crime Reporting (UCR) statistics for nonfatal violent crime overall, but the
disproportionality is lower for rape than for other nonfatal violent crimes (22%
of rape offenders compared to 13% of the U.S. population). The white share of
rapists is statistically comparable to the white share of the population.
In short, I think Bray’s implicit (yet gentle) attempt to
examine how Sebold’s racial biases drove her inaction as a successful author,
and even her actions as a traumatized teenager, is reasonable. I clashed with several
Facebook commenters on the Jezebel article about whether Sebold should be
subject to any questioning or accountability for how she handled
Broadwater’s conviction over the past 4 decades. (This isn’t a scientific
assessment, but the women who bristled at these questions seemed predominantly
white, while those receptive to the questions included many Black women.) To
those who opposed scrutinizing Sebold’s (in)actions and insisted we shouldn’t
let the law enforcement personnel who handled her case off the hook, I wanted
to say, “No shit, Sherlock.” No reasonable person is denying law enforcement’s
culpability in this case, and accountability for them and Sebold isn’t all or
nothing. But these commenters do bring up an important point. As Miller says in
the Slate piece:
“It’s not the responsibility of a
traumatized rape victim to fairly investigate and prosecute the person who
assaulted her. That is the duty of the police and prosecutors, who failed both
Sebold and Broadwater at every stage, from the moment she first reported the
crime to the moment he was convicted.”
Similarly, in an article for The Cut cited by Bray, Amia
Srinivasan explains:
“Very often, it is men who falsely
accuse other men of rape. This is a thing almost universally misunderstood
about false rape accusations. When we think of a false rape accusation we
picture a scorned or greedy woman, lying to the authorities. But many, perhaps
most, wrongful convictions of rape result from false accusations levied against
men by other men: by cops and prosecutors intent on pinning an actual rape on
the wrong suspect. … Fewer than half of these [exonerated] men were
deliberately framed by their alleged victims. Meanwhile, over half of their
cases involved ‘official misconduct’: a category that applies when the police
coach false victim or witness identifications, charge a suspect despite the
victim’s failure to identify him as her attacker, suppress evidence or induce
false confessions.”
This echoes the point in Yoffe’s article, quoted above, that
university administrators sometimes pressure women into filing sexual assault
complaints.
Notably, though, even Miller 1) doesn’t say it’s off-limits
to question whether Sebold should have realized her mistake years later, and 2)
doesn’t answer “no”:
“Should Sebold, at some later
point, have had second thoughts about Broadwater’s conviction? Possibly. I
don’t know. … That [“Lucky” movie] producer’s inquiry ultimately led to the
overturning of the conviction. But Sebold herself researched the case while
writing Lucky. Did she, too, notice the smaller lies that [Assistant DA] Uebelhoer
told her and wonder if the big one, about how Broadwater had gamed the lineup
with a friend, was also untrue? In an afterword added to the book in 2017,
Sebold describes Broadwater as coming from ‘a family with an entrenched
criminal record,’ which suggests she’d looked into the facts and realized that
the prosecutor’s stories about his own past offenses weren’t true. To my mind,
that’s the most incriminating line in the book, but it still doesn’t prove that
Sebold knew or even sensed that the wrong man had been convicted of raping her.”
In a way, the question of sexual assault and harassment on college campuses – or workplaces, or any other institution with an internal, non-criminal discipline process – is even more vexing. The stakes are lower, but so is the burden of proof. Again, it’s hard to say without better data how often wrongful accusations (sincere or otherwise) happen, let alone lead to expulsion or termination. California's Yes Means Yes law, which I support overall, has been in place for a few years and might provide some data soon.
Wrongful college expulsions are clearly an exaggerated strawman for the Right, and likely for Yoffe and Halley as well. But even if rare among Black and other racialized defendants, I still think they’re relevant. For one thing, part of what might make these cases rare is the fact that Black men are underrepresented among postsecondary students to begin with, and Black American men probably more so. If that were to change, maybe racial disparities in sexual assault accusations would become more apparent. EDIT: It could simultaneously be true that a large majority of Black and other racialized defendants are in fact guilty, and that men in these demographic groups experience disproportionate and intolerably high rates of wrongful accusations.
I have no clue how to balance these conflicting goals, and I wonder if they’re really as conflicting as Yoffe suggests. Hopefully writers like Yoffe are merely making a strawman of the Left’s supposed indifference to questions of fairness and racial disparities, just as Ijeoma Oluo was asked to do for USA Today. And yet, I’ll say outright the impression that I suppressed when I first read Oluo’s article – that her coup de grace,
“I was asked to write that if a few
men are harmed to protect women, it’s worth it. As if that’s a real threat. As
if that’s a valid fear. As if, in this world, a power shift of that magnitude
is even within the realm of possibility …”
is a bit glib, since there are other power dynamics at play.
(I know anecdotally of at least one case where a kind, capable young Black man
was fired from a social service agency because he was accused, not that
credibly, of sexual impropriety by an intellectually disabled client.) As a Black woman, Oluo is in more
of a position to know than I am. But there are other thinkers and writers of
color who’d disagree with her, and I’m trying to make sense of all reasonable perspectives
and all that’s at stake.
Jeannie Suk Gersen, who strikes me as more honest than Yoffe
or Halley, opposed Harvard’s adoption of “a lowered standard of proof [of guilt
for sexual misconduct cases]: from ‘reasonable belief’ to a ‘preponderance of
the evidence.’” I’m not a legal scholar, and I don’t know that I’d agree with
her on the specifics even if I understood them better. But I agree the
questions are worth asking. Maybe it’s quixotic, but I wonder if a sensitive
and trauma-informed questioning style would make at least as much impact as the
evidentiary standard in assuring justice for both accusers and defendants?
“What is justice, after all, in an inherently
unjust, deeply racist and sexist society? Who gets justice, and what does
justice look like for people who experience harm at the hands of others and
particularly at the hands of the state? In America, justice is constantly
shapeshifting, and one person’s idea of what is just can just as easily be
another person’s idea of gross inequality and corruption. It’s the nebulous
nature of the concept that makes it so easy to corrupt.”
If, God forbid, a daughter of mine were raped, I’m sure I’d advise
her to report it to police or other authorities regardless of the perpetrator’s
race – unless there was something specific about the case or her wishes that
swayed me otherwise. After all, she’d not only have a right to justice, but also
an obligation to prevent more women from being victimized if at all possible. But,
hopefully, we’d be cognizant of our own biases and try to prevent someone she couldn't confidently ID from being punished. Overall, the purpose of these
questions isn’t to set rigid, ideological standards for how to react in
specific circumstances. It is, at least, to try to imagine what justice does
look like, and to remember how multifaceted the fight for it is.
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