‘The Hunting Ground,’ Sexual Assault, and the Failure of Civil Society

The Hunting Ground, a documentary about sexual assault on college campuses, opened recently across the country. I saw the film in a commercial theater on opening weekend in Tallahassee. Alone. At least at the beginning. I was joined by one other woman and a couple by the time the opening credits flashed on the screen. This is unfortunate because campus sexual assault may be one of our society’s most significant contemporary examples of the failure of civil society, and hundreds of thousands of women and men have suffered as a result.

I doubt the filmmakers had this insight in mind when they conceived, filmed, and rolled out the marketing for the film. They have said that their main goal is to create a “conversation” on campus rape. The film is much more pointed than that, and the filmmakers clearly have an agenda, but its power is in using rape survivor testimony to strip away any pretence that sexual assault on college campuses is somehow exceptional. It’s not. Almost every student will know someone who has been sexually assaulted by the time they graduate (although most will not have experienced it directly themselves). And this is a failure of civil society on our campuses.

The film itself, like many documentaries, is a call to action. Its goal is to use the injustice of sexual assault to provoke advocacy. The use of two rape survivors and activists from the University of North Carolina at Chapel Hill—Andrea Pino and Annie Clark—as the primary vehicle for telling the story is both effective and important. These young women, facing intransigence, impotent administrators, and bureaucratic stonewalling, launched the initial efforts that led to the tidal wave of Title IX investigations now forcing college and university administrations to address sexual assault more forthrightly.

As a matter of public policy, two aspects of this case are troubling. The first is the intransigence of private and public universities and colleges in addressing an issue that continued to put hundreds of their students at risk even as they were witnessing the personal destruction of human dignity that resulted from sexual assault. Second, two young women with no legal experience or direct knowledge of the legal process had to creatively interpret federal law to force change. Let’s be clear: This was not an initiative started by the federal government or enlightened bureaucrats. These were women motivated by their sense of injustice, rooted in their own experience, searching for a practical way to hold college and universities accountable for not addressing sexual assault on campus. These women are individualist heroines, working to restore personal dignity, in the face of institutional intransigence. (Full disclosure: I am on the full-time faculty of Florida State University, one of the universities featured prominently in the film. Others bearing the brunt of the directors’ attention included the University of Notre Dame, Harvard University, and the University of California at Berkeley. Private liberal arts colleges have also faced similar criticism, although most probably don’t have the public profile that would qualify them for a feature documentary.)

I believe the persistence of sexual assault and rape on college campuses is a fundamental failure of civil society and a compelling indictment of the ability of formal institutions to address it. This failure to address the institutional context is also where the film fell flat for me as someone who has studied public regulation for more than 25 years and has come to know many personal stories of sexual assault through my volunteer work as a self-defense coach.

The documentarians didn’t examine the institutional limits to achieving the remedies they sought. The solution is not just putting more enlightened people in charge of these institutions. Ultimately, the solution is building a culture that respects the dignity of all individuals as an objective value that is never compromised by expediency or other institutional objectives, whether it is athletics, funding, or alumni sensitivities. In short, a broad-based culture of “no” always means “no” and silence never means “yes” is fundamental, and significant consequences exist for breaking from this social norm. This is a very libertarian principle: Individual consent must be respected and honored by all within the community. Thus, the solution is building a civil society on college campuses so that individual dignity and the respect for individual choice becomes a central tenet of social ethics and behavior. (I break company on strategy somewhat from my colleague and fellow Independent Institute blogger Randy Holcombe.)

This is also why I believe the criminal justice system is the wrong institution to lead the effort against sexual assault (although it’s still important). Law breakers are prosecuted because they have committed a crime against the State. Prosecutors make their decision to pursue criminal cases based on the law and how the severity of the crime has been determined by statute, not the dignity of the individual. We are fortunate in the U.S. to have a system designed to protect the innocent. This doesn’t work in the vast majority of sexual assaults because the burdens of proof and standards of evidence rarely reach levels where perpetrators can be prosecuted even when the assaults happened.

And, in the case of rape, it’s fundamentally untrue that a person is necessarily innocent because their case was not prosecuted, or they were found “not guilty” in a court of law. Just because enough evidence was not gathered to convict someone doesn’t mean the survivor wasn’t assaulted, failed to say “no,” or was not traumatized by the experience. Three-quarters of sexual assaults are by perpetrators known by the survivors, and often the case is “he said, she said.” The perpetrator can, and often does, claim the sex was consensual, and physical proof of forced sex is rare. Most rapes are not reported to the police, and, among those that are, fewer than 10 percent will result in a conviction. Most of these statistics are even less favorable for rapes on college and university campuses where a “hook-up culture” obscures transgressions and provides convenient cover for serial rapists. Yet, surveys and academic research find that over 90 percent of reported rapes are legitimate. (I have personally reviewed many of the sources for these statistics. See this column for a brief summary of this data, and The Hunting Ground includes specific citations to many academic studies and interviews legitimate experts.)

Thus, at the end of the day, it’s the Little Platoons, those social mediating institutions that form the glue of civil society, that create the shared values that make the respect for individuals possible. Non-legal mechanisms, including restorative justice, aggressive enforcement of conduct standards among students by universities, and community-based initiatives, need to be employed. A core question is whether colleges and universities—many of whom have substituted formal institutional mechanisms for voluntary, community-based approaches—understand this approach and are willing to support efforts to change the culture to protect individual freedom, liberty, and dignity.